The Center News: March 2017

A Publication of the National Association of ManufacturerstheCenter for Legal Action

Center Perspectives

EPA Hears Manufacturers' Concerns and Delays Risk Management Programs Rule.
By Leland Frost, Associate General Counsel

The EPA’s new Risk Management Program (RMP) rule published on January 13, 2017, revised an existing rule designed to reduce chemical hazards and related accidental releases. The rule imposes various recordkeeping, auditing, disclosure and mitigation mandates under the Clean Air Act on companies that handle various chemicals, which includes many manufacturing companies. The new requirements were not adequately evaluated or justified by the Obama administration, and we have been working with the EPA under the Trump administration to ameliorate some of these problems.

For example, the rule raises significant security concerns from required disclosures of hazardous material information and compliance issues that will cause irreparable harm to manufacturers by requiring them to make available sensitive information that could expose plant vulnerabilities. The rule also imposes costly audit requirements for "each covered process" without justification, and the agency failed to conduct an adequate assessment of the costs and benefits.

On February 28, 2017, the NAM and other industry associations submitted to the EPA a petition for reconsideration of the RMP, and the EPA agreed to meet with us the following week to listen to our concerns.

The NAM and industry groups also filed a lawsuit on March 13 in the U.S. Circuit Court of Appeals for the District of Columbia Circuit, asking the court to review the validity of the Obama administration's action implementing changes to the RMP rule under the Clean Air Act. Later that same day, EPA Administrator Scott Pruitt issued a 90-day delay of the effective date of the RMP rule. This will give the agency time to review our concerns and will temporarily suspend the compliance burden.

We are pleased that the EPA listened to manufacturers’ issues with the new rule and that they agreed to delay the effective date. This delay gives the EPA time to reconsider and review the rule’s requirements, without imposing unnecessary confusion and compliance costs on manufacturers.

The Manufacturers Center for Legal Action (MCLA) will continue to monitor developments affecting manufacturers and provide regular updates. Please do not hesitate to contact me with questions at [email protected].

MCLA in the Courts

Supreme Court considers abeyance in WOTUS case: On February 28, 2017, President Trump issued an Executive Order directing agencies to review and rescind or revise the “Waters of the United States” (WOTUS) rule, and the EPA and the U.S. Army Corps of Engineers announced they would do so. Government lawyers then asked the Supreme Court to hold briefing in abeyance in the NAM’s case in the Supreme Court. Replacement of the underlying WOTUS rule could prevent this case—which seeks to resolve which court has jurisdiction to hear a WOTUS challenge—from being decided on the merits. 

More Information: National Association of Manufacturers v. U.S. Dep’t of Defense (United States Supreme Court)

NAM supports changes to Risk Management Program rule; EPA grants stay: The NAM joined with other associations in a petition to review the validity of Obama administration amendments to the Risk Management Programs rule. We also asked the EPA to reconsider and stay the rule. It agreed to do so, allowing an additional 90 days before the enforcement date. We are working with coalition partners and the EPA to address security concerns from the disclosure of hazardous material vulnerabilities, as well as audit and other costly requirements.

More Information: American Chemistry Council v. EPA (U.S. Court of Appeals for the D.C. Circuit)

NAM joins new challenge to EPA's Clean Power Plan: On February 16, 2017, the NAM and other associations moved to intervene in a case brought by North Dakota challenging the EPA's latest action on its Clean Power Plan (CPP). Near the end of the Obama administration, the agency rejected a petition to reconsider the rule, and that decision is now being challenged in court. This is largely a protective petition for review because the case is likely to be affected by the court's soon-to-be-issued ruling in our main challenge to the CPP rule.

More Information: Juliana v. United States (U.S. District Court for the District of Oregon)

Second brief filed in BNSF Supreme Court case: After the Supreme Court agreed to hear the case, the NAM filed a second brief on the merits of BNSF’s jurisdictional case in Montana. The Court should clarify that the “at home” provision for jurisdiction applies to all litigation and not just to litigation involving companies located outside the United States. If the Court does not address this issue, it could result in state courts around the country expanding their jurisdiction and subjecting manufacturers to additional lawsuits in states without a significant connection to the case. This is particularly important as manufacturers continue to expand their distribution chains and change the ways they operate in the modern economy.

More Information: BNSF Ry. Co. v. Tyrrell (U.S. Supreme Court)

Court hears Browning-Ferris appeal: In June 2016, the NAM filed an amicus brief in the D.C. Circuit Court of Appeals to support Browning-Ferris. The NAM argued that the longstanding “direct control” standard should remain the means for determining joint employment. This standard protects the rights of temporary employees to engage in collective bargaining efforts, whereas the loosened standard merely subjects companies to unmerited liability. On March 9, 2017, the court finally heard the oral arguments, and the court’s tough questions alluded to how ridiculous this loosened standard has become.

More Information: Browning-Ferris Industries v. NLRB (U.S. Court of Appeals for the D.C. Circuit)

NAM files final briefs in OSHA silica case: The NAM has filed its final two briefs in the ongoing challenge to OSHA’s silica rule. The briefs provide additional arguments that the rule is not necessary or appropriate, lacks sufficient evidence, fails to support its findings and that OSHA has failed to prove the rule is feasible. OSHA’s conduct of the rulemaking was a textbook exercise in confirmation bias, with OSHA ignoring all evidence that was contrary to its narrow goal. This case is now awaiting a decision by the court, which also gives OSHA the time to possibly work on ways to address the rule once political appointees get in place.

More Information: North America’s Bldg. Trades Unions v. OSHA (U.S. Court of Appeals for the D.C. Circuit)
Product Liability

Manufacturers secure big win in New York asbestos litigation: The NAM filed an amicus brief urging the court to uphold the lower court’s rejection of the plaintiff’s cumulative exposure theory, otherwise known as the “any exposure” theory, which has been often rejected. Plaintiff argued that mechanics who worked with brakes, clutches and gaskets, as well as their family members, suffered harm because these contain small amounts of asbestos. The court ruled in our favor and held that proof of exposure must be established. This is a significant ruling because it is often difficult for manufacturers and other businesses to prevail in this New York court. In any other type of litigation, the idea that you have to show causation would be obvious, but, for asbestos lawsuits, this is significant.

More Information: Juni v. A.O. Smith Water Prods. Co. (N.Y. App. Div.)
Questions or Comments?

Contact Senior Vice President & General Counsel Linda Kelly at [email protected].

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