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Showing 16 posts by Michael F. Vitris.

OSHA Proposes to Rescind Electronic Submission of Certain Injury and Illness Records

OSHA recently issued a Notice of Proposed Rulemaking that proposes to rescind the requirement for establishments with 250 or more employees to electronically submit their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) information to OSHA on an annual basis.[1] Under the proposed rule, employers subject to electronic reporting (those in the industries that OSHA has designated as “high risk” and establishments with 250 or more employees) will still be required to submit the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) information to OSHA on an annual basis.  OSHA’s stated rationale for this proposal is that it is an effort to protect “sensitive personal information from potential disclosure under the Freedom of Information Act.”

[1] 83 Fed. Reg. 36494 (Jul. 30, 2018). Read More ›

TCEQ Begins Implementation of SB 1045, Streamlining Approval of Certain Air Permits

The Texas Commission on Environmental Quality (“TCEQ”) has prepared a rulemaking that will consolidate for certain New Source Review (“NSR”) air permit applications the Notice of Receipt of Application and Intent to Obtain Permit (“NORI”) and Notice of Application and Preliminary Decision (“NAPD”) to allow for a single 30-day notice period during which public comments and requests for public meetings or contested case hearings (“CCHs”) can be submitted.  The rulemaking, which implements Senate Bill 1045 (85th Texas Legislature, 2017), is scheduled for adoption at TCEQ’s May 9, 2018 Commissioners’ Agenda meeting.  Read More ›

SCOTX: Missed 30-Day Service Deadline Does Not Mandate Dismissal of Challenge to TCEQ Action

Last week, the Supreme Court of Texas ruled that serving citation on the Texas Commission on Environmental Quality (“TCEQ”) outside a 30-day deadline set forth in the Texas Clean Air Act (“TCAA”) did not require dismissal of the plaintiff’s lawsuit.[1] The court’s ruling may provide some relief for plaintiffs who do not strictly comply with the TCAA’s service requirements. However, the remedy for non-compliance with other TCEQ statutes’ service deadlines may be less forgiving, and practitioners should endeavor to meet all service requirements as a best practice when challenging TCEQ decisions. Read More ›

Judge Becomes Student in Climate Change Lawsuit “Tutorial”; Other Recent Updates

The novel climate change tort cases are accelerating at a rapid pace.  Over the past two weeks, several important events occurred in the lawsuits brought by multiple California cities and counties against the country’s largest energy companies:

  • At the invitation of U.S. District Judge William Alsup, plaintiffs Oakland and San Francisco and defendant energy companies participated in an unusual “global warming and climate change tutorial.”
  • In the same case, the energy companies filed motions to dismiss the public nuisance climate change claims, arguing that the claims are displaced by the Clean Air Act and other federal statutes, or alternatively, founder on grounds such as the failure to state a viable public nuisance claim and violations of the Constitution’s separation of powers principles.
  • In another set of climate change cases in California brought by several other local governments against over thirty energy companies, U.S. District Judge Vince Chhabria created a district-level split on jurisdiction by remanding those claims back to state court.
Read More ›

Industry Wins First Round in California Climate Change Litigation

Yesterday, a California federal district court dealt a serious blow to two California cities’ climate change lawsuits against several major oil and gas companies.  Judge William Alsup issued an order denying the plaintiffs’ motion to remand these high-profile actions back to state court, finding that “plaintiffs’ claims, if any, are governed by federal common law. Federal jurisdiction is therefore proper.”[1]  If the court’s order is sustained on a likely appeal to the 9th Circuit and the cases remain in federal court, plaintiffs’ novel climate change challenge will face a steep uphill battle. Read More ›

Discharges and Hydrologic Connection to Groundwater: EPA Seeking Comment as Courts Weigh In

If the first two months of 2018 are any indication, events to play out over the rest of the year will have a major impact on what constitutes a “discharge” subject to regulation under Section 402 of the Clean Water Act (CWA).  Three cases pending in different federal courts of appeals will address whether releases of pollutants to groundwater hydrologically connected to waters of the United States are subject to the National Pollution Discharge Elimination System (NPDES) permitting requirements of the CWA.  In a fourth case, the Ninth Circuit recently weighed in on this issue by articulating a novel, broad rule for determining when a discharge occurs.  Spurred on by these developments, and its own admittedly varied positions on this issue over the years, EPA is now seeking comment by May 21 on how to approach this issue. Read More ›

Washington OSHA Issues Draft PSM Rule for Refineries

The Washington Department of Labor and Industries’ Division of Occupational Safety and Health (DOSH) recently released a new draft safety rule that would increase existing Process Safety Management (PSM) requirements for petrochemical refining facilities in the state of Washington.  The draft rule, which was released on January 16, 2018, arrives on the heels of California’s “PSM for Refineries” standard issued last fall and several years after an explosion with multiple fatalities at a refinery in Anacortes, Washington.  If finalized, Washington’s draft PSM rule would affect at least five large refineries owned by major energy companies.  Read More ›

D.C. Circuit Rejects Industry Challenges to Silica Rule and Remands to OSHA for Further Consideration on Medical Removal Protections

The U.S. Court of Appeals for the District of Columbia rejected all industry challenges to an Obama-era rule on worker exposure to respirable crystalline silica in a December 22, 2017 ruling.  In its written decision, the court held that OSHA’s Final Rule for Exposure to Respirable Crystalline Silica (the “Silica Rule”) was supported by substantial evidence and rejected the industry claims that the rule was too stringent.  In response to a union challenge, the court agreed with the union claim that OSHA did not adequately explain its decision to omit medical removal protections from the final version of the Silica Rule, and remanded to OSHA to reconsider or further explain its decision on medical removal protections.  As a result of the Court’s ruling, construction employers must remain in compliance with all of the Silica Rule’s requirements, and general industry and maritime employers must prepare to come into compliance by June 23, 2018. Read More ›

Competing Cosmetic Safety Bills Would Each Expand FDA Regulatory Authority

On October 25, 2017, Senator Orin Hatch (R-UT) introduced S. 2003, the “FDA Cosmetic Safety and Modernization Act.”[1] The proposed legislation would amend the Federal Food, Drug and Cosmetic Act of 1938 (“FFDCA”) and allow the Food and Drug Administration (“FDA”) to regulate finished cosmetic products based on their safety and the safety of their components. Senator Hatch’s legislation presents an alternative to the Personal Care Products Safety Act (S. 1113), a bill reintroduced in May 2017 by Senators Dianne Feinstein (D-California) and Susan Collins (R-Maine).[2] The Senate referred the bill to the Health, Education, Labor, and Pensions Committee on
October  25, 2017. Read More ›

OSHA Proposes December 1, 2017 Deadline for First Phase of Electronic Reporting, Foreshadows Rulemaking on Anti-Retaliation Provisions

On June 28, 2017, OSHA published a proposed rule in the Federal Register delaying the initial compliance deadline for the electronic submission of worker injury and illness logs to December 1, 2017. Read More ›