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Environment & Natural Resources News
January 2000
Law Offices of Kevin J. Brown
Syracuse, New York and Harrisburg, Pennsylvania
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This publication provides general information regarding current developments in the field of environmental law. The information contained in this newsletter is not a substitute for professional counseling or advice. Due to internet security concerns, email respondents should not send confidential information or information about a potential case or matter by email. Persons responding to our email address will not thereby be deemed clients of this firm.
MSHA PUBLISHES FINAL PART 26 TRAINING REQUIREMENTS
The Federal Mine Safety and Health Act ("MSHA") of 1977 requires that mine operators have a health and safety program for its miners. However, MSHA has been prohibited from enforcing miner health and safety training requirements at nonmetal surface mines. In 1999 the U.S. Congress removed language prohibiting expenditure of funds for this purpose and directed MSHA to work with the shell dredging, sand and gravel, surface stone, surface clay, colloidal phosphate and surface limestone industries, workers, labor organizations and other interested parties to promulgate final training regulations for those operations by September 30, 1999. MSHA solicited comments on the new rule from mine operators, mine representatives and miners at the formerly exempt operations during 1998 and early 1999 at public meetings across the country. The National Stone Association, as co-founder of the Coalition for Effective Miner Training, a cooperative effort of labor and industry groups, provided leader-ship for the aggregates industry's response to the proposed regulations. The final regulations were published in theSeptember 30, 1999, Federal Register. They take effect October 2, 2000.All affected mine operators must develop and implement an MSHA-approved training plan by that time. Beginning that date, mine operators must train new miners who have never worked at a mining operation before, ensure "experienced" miners are on a schedule to receive annual refresher training and provide site-specific hazard awareness training to necessary persons, such as truck drivers or customers.
Approximately 10,000 mines will be affected by the new training regulations. Of those sites 9,500 are quarries and sand and gravel operations. The new Part 46 regulations cover surface mining operations listed above including mining operations recovering: marble, sandstone, slate, shale, traprock, koalin, felspar and lime. Surface areas of underground mines is still covered by Part 48.
Under the new rules truck drivers, including over the road commercial truck drivers and customers who haul materials away from the mine site and remain in their trucks while the trucks are being loaded are required to receive site-specific hazard awareness training. The production-operator retains primary responsibility of ensuring that everyone who comes onto the mine site has received the necessary site-specific training. Maintenance or service workers who periodically work at a mine site must receive comprehensive training if they are engaged in mining operations at a mine site for frequent or extended periods. Those workers whoare not engaged in the maintenance or repair of mining equipment must receive site-specific hazard awareness training.
SUMMARY OF RULE
Section 46.2 sets forth definitions including "new miner", "experienced miner", "competent person", "equivalent experience", "Newly hired experienced miner" and "independent contractor".Section 46.3 sets forth requirements for submission of training plans to MSHA. Among those requirements are: (1) the name of the production-operator or independent contractor, mine name(s), and MSHA mine identification number(s) or independent contractor identification number(s); (2) the name and position of the person designated by the operator who is responsible for the health and safety training at the mine. This person may be the production-operator or independent contractor; (3) a general description of the teaching methods and the course materials that are to be used in the training program, including the subject areas to be covered and the approximate time or range of time to be spent on each subject area.; (4) a list of the persons and/or organizations who will provide the training, and the subject areas in which each person and/or organization is competent to instruct; and (5) the evaluation procedures used to determine the effectiveness of training.
Section 46.4 sets forth requirements for implementation of the training plan. Among those requirements, mine operators must ensure that each program, course of instruction or training session is: (1) conducted in accordance with the written training plan; (2) presented by a competent person; and (3) presented in language understood by the miners who are receiving the training. Training may be conducted by the operator or by state or federal agencies; associations of production-operators or independent contractors; miners' representatives; consultants; manufacturers' representatives; private associations; educational institutions or other training providers.
Section 46.5 sets forth requirements for "new miner" training, Section 46.6 for "newly hired experienced miner" training. Each Section describes the type and amount of training required for each.
Miners who are reassigned to new tasks in which he or she has no previous work experience must be trained in the health and safety aspects and safe work procedures specific to that new task. Section 46.7 sets forth the requirements for this type of training.
Under Section 46.8 operators are required to provide each miner with no less than 8 hours of annual refresher training: (1) no later than 12 months after the miner begins work at the mine, or no later than March 30, 2001, whichever is later; and (2) thereafter, no later than 12 months after the previous annual refresher training was completed. Refresher training must include instruction on changes at the mine that could adversely affect the miner's health or safety.
Section 46.9 describes the requirements for records of training. Operators must record or certify on MSHA Form 5000-23, or on a form that contains the required information that each miner has received training required under this part. If Form 5000-23 is not used, the form must include: (1) the printed full name of the person trained; (2) the type of training, the duration of the training, the date the training was received, the name of the competent person who provided the training; (3) the name of the mine or independent contractor, MSHA mine identification number or independent contractor identification number and location of training (if an institution, the name and address of the institution); (4) the statement, "False certification is punishable under Sec. 110(a) and (f) of the Federal Mine Safety and Health Act" printed in bold letters and in a conspicuous manner; and (5) a statement signed by the person designated in the MSHA-approved training plan for the mine as responsible for health and safety training, that states "I certify that the above training has been completed." The Section also describes when a record of training is required and where it should be maintained.
Section 46.11 describes who must receive site-specific awareness training including: office and staff, scientific workers, delivery workers, customers, construction worker or employees of independent contractors, maintenance and service workers. The type of training required is also set forth in this section.
The MSHA web site has numerous pages relating to the new Part 46 including downloadable compliance guidelines, sample training plans, sample training program forms, training records and certificates.
HARMON INDUSTRIES INC. V. EPA
On September 16, 1999, the U.S. Court of Appeals for the Eighth Circuit affirmed a lower Court decision finding the "EPA's practice of overfiling, in those states where it has authorized the state to act, oversteps the federal agency's authority under the RCRA."
The case involves Harmon Industries Inc. in Grain Valley, Missouri. When Harmon discovered it had routinely discarded volatile solvent residue behind its plant between 1973 and 1987, it voluntarily contacted the Missouri Department of Natural Resources ("MDNR"). Harmon cooperated with the MDNR and created a plan for clean up. During this time, the EPA initiated an administrative enforcement action against Harmon for over $2 million for the same violations. Harmon and the MDNR entered into a Consent Decree resolving the state enforcement action. The EPA continued its penalty claim which was litigated before an administrative law judge who imposed a civil penalty. The case was then affirmed by the Environmental Appeals Board. Harmon filed a complaint in the United States District Court for the Western District of Missouri challenging the EPA's decision. In August 1998, the District Court found the EPA's decision to impose civil penalties violated RCRA and contravened principles of res judicata. The EPA appealed the decision. Numerous parties filed amicus briefs on behalf of Harmon, including the National Mining Association.
Missouri is authorized by the EPA to administer and enforce a hazardous waste program pursuant to the Resource Conservation and Recovery Act or RCRA. The EPA argued that the statute allowed "overfiling", that is, pursuit of its own enforcement action against a company for the same violations for which an authorized state is also seeking relief. However, the Eighth Circuit found "when the EPA has authorized a state program, the plain language of the text indicates that the primary enforcement powers are vested in the states" and that there "is no support either in the text of the statute or the legislative history for the proposition that the EPA is allowed to duplicate a state's enforcement authority with its own enforcement action." In addition, the Court affirmed the principles of res judicata, as defined by Missouri law, foreclose the EPA's enforcement action against Harmon. The EPA has petitioned the Court for rehearing and filed its brief on November 24, 1999. New York State also filed an amicus brief on behalf of EPA. Harmon Industries' response to the petition was due December 24, 1999.
B.J. CARNEY INDUSTRIES INC. V. EPA
The Ninth Circuit Court of Appeals found the time to appeal a civil penalty assessment under the Clean Water Act runs from the date of issuance of the Administrative Law Judge's decision, not the date the decision becomes final.
EPA filed an administrative complaint against B.J. Carney Industries Inc. for violations of pretreatment standards for its discharges into the City of Sandpoint, Idaho, publicly owned treatment works between 1985 and 1990.
An ALJ initially assessed a penalty of $9,000 against Carney.
Both Carney and the EPA appealed to the Environmental Appeals Board ("EAB") which affirmed the penalty, but remanded the case to another ALJ for recalculation of the penalty against Carney based on economic benefit received by Carney.
A new penalty of $125,000 was assessed against Carney. The ALJ issued the decision on January 5, 1998.
Carney appealed to the Ninth Circuit on March 16, 1998.
The Clean Water Act provides that a civil penalty assessment may be appealed to the federal court by filing a notice of appeal within the thirty-day period beginning on the date the civil penalty order is issued.
The order becomes final after thirty days.
Carney argued that the Clean Water Act allows only the administrator of the EPA to assess penalties and that the authority to assess penalties was delegated to the EAB, not the ALJ.
The Court, however, determined that the language of the Clean Water Act in no way indicated the ALJ order assessing a penalty was not an order from which the appeal must be taken within thirty days of issuance.
The Court determined Carney's appeal was untimely. Circuit Judge Canby wrote a dissenting opinion, holding Carney's appeal to be timely.
ACUSHNET CO. V. MOHASCO CORP
The U.S. Court of Appeals for the First Circuit affirmed a lower court ruling that four defendants in a suit for contribution were not liable because their contributions to the contamination at a site failed to reach the threshold of significance under CERCLA.
The case involved the Sullivan's Ledge Superfund Site in Massachusetts.
The Court confirmed the trial judge's authority in ruling that a company's share of liability can be so small that it should pay nothing toward cleanup, even in the case where the company sent hazardous wastes of the type being cleaned, as did one defendant in this matter.
The Court noted the two ways in which a Superfund defendant that contributed hazardous substances may escape liability.
First, Defendant New England Telephone and Telegraph Company, which sent waste telephone poles containing polyaromatic hydrocarbons, demonstrated its waste was below background levels for the contaminant.
This is also known as the "Alcan showing" as in U.S. v. Alcan Aluminum Corp. where the Second Circuit ruled Alcan Aluminum could escape paying response costs under CERCLA if it could show the wastes it disposed of did not contribute more than the background contamination at the site.
The second way the Court noted was that Defendant American Flexible Conduit demonstrated the hazardous substances it sent to the site did not drive the cleanup remedy.
CRIMINAL CHARGES IN IROQUOIS PIPELINE MATTER REINSTATED
In our June 1998 issue we reported that charges in the Iroquois Pipeline matter were dismissed by U.S. District Court Judge Howard Munson.
Iroquois Pipeline and four former Iroquois executives were charged with violations of the Clean Water Act. However, the lower Court found that since the District Engineer for the Army Corps of Engineers had lacked authority to issue the Iroquois permit, the permit could not "serve as the basis for criminal prosecution of the defendants."
On December 9, 1999, the U.S. Court of Appeals, Second Circuit reversed the District Court ruling reinstating the criminal counts against Iroquois Pipeline, Phenix Environmental and other individual Defendants.
The Second Circuit concluded that because: 1) the language of the Clean Water act does not specifically address delegation authority; 2) the delegation in the instant matter was internal rather than external delegation; 3) legislative history does not indicate Congress considered and rejected subdelegation; and 4) the overall intent of the Clean Water Act is consistent with the authority to subdelegate, there was no clear intent to prohibit delegation of permitting authority. Further, the Court determined the Secretary reasonably interpreted the statute to allow subdelegation of permitting authority.
The Court remanded for further consideration by the lower Court which of the incorporated permit conditions are reasonably related to the discharge and which, if any, are not. The decision was issued by Circuit Judge Pooler.
EPA CHARGES WALTON MANUFACTURER WITH HAZARDOUS WASTE VIOLATIONS
The EPA charged Walton, New York, metal parts manufacturer Northeast Fabricators with four counts of violating federal law and New York state hazardous waste regulations.
The EPA is seeking $52,250.
In August 1998 EPA inspected Northeast's facility and apparently observed: paints containing solvents had been released into the air and onto the ground outside the facility from a booth in which metal was spray-painted; nine drums holding hazardous waste lacked labels stating contents and the date they were first filled with chemicals; some hazardous waste drums were dented, corroded or open; employees had not received adequate health, safety and hazardous waste management training; and Northeast had not posted emergency numbers and a plant floor plan indicating the location of fire extinguishers and spill control material.
The EPA is considering the violations of particular concern because the Northeast facility is located within the Catskill/Delaware watershed which provides drinking water for residents of New York City and parts of Westchester, Putnam and Ulster counties.
U.S. V. ALLIEDSIGNAL, INC
The U.S. District Court for the Northern District of New York denied an EPA motion to approve a Consent Decree with municipal defendants for cleanup at the Sidney Landfill Superfund Site in Sidney, New York.
The Court found that the proposed payments by five municipalities did not fairly represent the response costs the defendants would reasonably expect to pay for the closure of the landfill because the costs for closing a New York State municipal solid waste ("MSW") landfill are likely greater than costs associated with closing an MSW landfill under federal regulations.
Defendant, Alliedsignal, Inc. argued that since the Consent Decree purports to settle each municipal defendants' response costs incurred and to be incurred, i.e. past and future costs, and intends to protect the defendants from contribution claims, the proposed $5.30 cost per ton for cleanup was not fair.
In its decision, the Court discussed the possibility that the Town of Sidney was liable as an arranger for the disposal of hazardous waste oils at the site.
There was also evidence indicating the municipal defendants contributed the majority of the waste to the site. For these reasons, the Court denied entry of the Consent Decree.
EROSION & SEDIMENT CONTROL PROGRAM REGULATIONS REVISED/ PROGRAM MANUAL UPDATED
The PA Environmental Quality Board recently approved a rule amending 25 Pennsylvania Code Chapter 102, integrating DEP's regulations governing its erosion and sediment control program with the current National Pollutant Discharge Elimination System, or NPDES, permit requirements for stormwater discharges associated with construction activities.
Generally, anyone proposing or conducting earth disturbance activities must develop, implement and maintain E&S Best Management Practices to minimize erosion and potential sediment pollution.
Among the significant revisions are that a written E&S Control plan is required for disturbances involving 5,000 or greater square feet; located in High Quality or Exceptional Value watersheds; or any other disturbance where the plan is required by another DEP regulation. Construction activities involving 5 or more acres of land require either a general or individual NPDES permit. Although agricultural plowing and tilling does not require an NPDES permit, persons performing those activities must develop and E&S plan and implement an agricultural BMP.
The DEP Erosion & Sediment Control Program Manual has been revised to reflect the revisions to the regulations. The technical guidance describes the Best Management Practices that are utilized for earth disturbance and construction activities.
For more information on the revised regulations contact Kenneth Murin, DEP, 717-787-6827. For a copy of the new manual contact John Mank at 717-772-5963. Both the regulations and manual are available on the Department's web site.
DEP PROPOSES REVISIONS TO BLASTING AND EXPLOSIVES REGULATIONS
The PA DEP recently proposed revisions to Chapters 210 and 211 of 25 Pennsylvania Code regarding licensing of blasters and use, storage and handling of explosives. The proposed revisions were introduced in July 1999. The proposed rules extend coverage to a much broader range of activities than previously regulated by DEP.
The scope of provisions of Chapter 210, Licensing of Blasters include: DEP standards for training and licensing and exemptions thereto, examination requirements, standards for applications and changes to application forms, DEP standards for permit issuance such as permit terms and types of permits, standards for revocation or suspension of permits, and DEP authority to conduct training.
The scope of provisions of Chapter 211, Use, Storage and Handling of Explosives include: new definitions and terms, storage requirements, licensing fees, application content and requirements, classification of explosives, issuance of permits for sale or purchase of explosives, record keeping requirements, transportation of explosives, blasting standards and monitoring.
The DEP Mining and Reclamation Advisory Board met on August 10, 1999 to review proposed changes to the regulations. Issues discussed included: some type of public notice requirement be added to the regulations; removing exemption of demolition activities from air blast limit; allowing six helpers per licensed blaster; continuance of third party analysis or verification of seismic records (no action taken); revision of numbers associated with minimum trigger levels.
The PA Environmental Quality Board is scheduled to review the regulations during its February 15, 2000 meeting. More information is available on the PA DEP web site.
DEC REVISES RULEMAKING
In our April 1999 printed issue we reported DEC's proposed amendments to 6 NYCRR Part 231.
The proposed changes were published in the October 28, 1998, State Register.
DEC has re-noticed those proposed amendments in the December 22, 1999, State Register after consideration of comments received in response to the October 1998 proposal.
The following are some of the changes to the proposed rules.
DEC originally proposed repealing the provision allowing DEC to retain twenty-five percent of emission reduction credits from a facility shut down in a moderate or severe ozone nonattainment area. The rule will retain this provision.
The definition of "facility emission potential" will be clarified to include the use of fugitive emissions to determine whether a facility is "major" if the facility belongs to one of the twenty-eight source categories listed in the proposed rule. Once a facility is determined to be "major", fugitive emissions must be included in total emissions for subsequent permitting purposes regardless of whether the facility belongs to one of the twenty-eight listed source categories. The definition of "project emission potential" will also be clarified to include the use of fugitive emissions in determining if the project is a significant source project, provided the facility proposing the project belongs to one of the twenty-eight listed source categories
Part 231 which includes Subparts 231-1 and 231-2 and was promulgated on October 15, 1994, to comply with the new source review (NSR) requirements in nonattainment areas set forth in the Federal Clean Air Act Amendments (CAAA) of 1990. Implementation of Subpart 231-2 since then has revealed several provisions which are either more stringent than the Federal CAAA requirements, require revision for conformance with the Department's new Part 201 regulation or require clarification and/or simplification to facilitate easier implementation. The proposed amendments set forth revisions to Subpart 231-2 to address these issues.
Comments on the changes to the original proposal may be submitted to Raj Rao, P.E., NYS Department of Environmental Conservation, 50 Wolf Road, Room 108, Albany, NY 12233-3254 until January 21, 2000.
This page updated on February 29, 2000. This publication provides general information regarding current developments in the field of environmental law. The information contained in this newsletter is not a substitute for professional counseling or advice. Due to internet security concerns, email respondents should not send confidential information or information about a potential case or matter by email. Persons responding to our email address will not thereby be deemed clients of this firm. For more information, email us or contact our offices.