“Rule-Out” Rebuttal Standard Applies To Mine Operators Per Fourth Circuit
Posted on Apr 16, 2015
The Fourth Circuit determined that the 2013 Department of Labor regulations setting forth an evidentiary standard required to rebut an underground coal miner’s presumption of pneumoconiosis apply to coal mine operators as well as the U.S. Secretary of Labor. Specifically, the court rejected an operator’s argument that the rebuttal standard enacted as part of the Patient Protection and Affordable Care Act in March 2010 was unambiguous and applied only to the Secretary of Labor, thus not rendering operators subject to the agency regulation. The court upheld the underlying ALJ...
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Fourth Circuit Weighs In On CERCLA Arranger Liability
Posted on Apr 13, 2015
In the early 1980s, a utility company sold multiple electrical transformers containing insulating oil with polychlorinated biphenyls (“PCBs”) to Company A. Company A repaired and rebuilt the transformers for resale to meet third-party customers’ specifications. In the process, one of Company A’s facilities became contaminated with PCBs. Following an EPA action related to removal costs, the companies that covered most of the removal costs filed suit against the utility company and other suppliers of some of the transformers to Company A under the Comprehensive...
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BSEE Proposes New Rules For Offshore Operations
Posted on Apr 13, 2015
Earlier today, the U.S. Department of the Interior, through the Bureau of Safety and Environmental Enforcement (BSEE), announced new proposed regulations for offshore oil and gas operations. The proposed regulations focus on blowout prevention requirements and well design, well control, casing, cementing, real-time well monitoring, and subsea containment. Specifically, the proposed rulemaking would adopt new requirements for blowout prevention systems, revise requirements for Deepwater Operations Plans required to be submitted to BSEE, institute new rules for safe drilling margins, source...
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DC Federal Court Denies Preliminary Injunction To Stop Rail Tunnel Reconstruction
Posted on Apr 9, 2015
On Tuesday, the U.S. District Court for the District of Columbia denied a non-profit organization’s bid for a preliminary injunction to stop the District of Columbia Department of Transportation from issuing the necessary permits for reconstruction of the Virginia Avenue Tunnel to begin. The tunnel is a 111-year old rail tunnel running under Capitol Hill in D.C. and is a significant freight bottleneck on the East Coast. The non-profit contended that the agency violated the National Environmental Policy Act (NEPA) in numerous respects by failing to adequately assess potential...
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NTSB Issues Safety Recommendations To PHMSA On Crude By Rail Issues
Posted on Apr 6, 2015
On Friday, the National Transportation Safety Board issued a 10-page Safety Recommendation to the Acting Administrator of the Pipeline and Hazardous Materials Safety Administration. The NTSB derived the recommendations from its investigations of the recent derailments of crude-carrying trains in West Virginia, Illinois, and Ontario. The letter, which can be accessed here, requests the following four specific recommendations: 1. Require that all new and existing tank cars used to transport all Class 3 flammable liquids be equipped with thermal protection systems that meet or exceed the...
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Review Confidentiality Agreements For Potential Whistleblower Stifling
Posted on Apr 2, 2015
The Securities and Exchange Commission announced yesterday its first enforcement action against a company using alleged improperly restrictive language in confidentiality agreements with the potential to prevent the whistleblowing process. The SEC charged a company with violating the whistleblower protections of Rule 21F-17, enacted under the Dodd-Frank Act, for requiring employees in certain internal investigation interviews to sign confidentiality statements containing language that warned that the employees could face discipline if they discussed the subject matter of the investigation...
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Internal Investigation Report Ruled Not Privileged Despite In-House Counsel’s Involvement
Posted on Mar 31, 2015
In litigation stemming from a worker’s injuries suffered at a chemical manufacturing facility in Louisiana, one defendant sought the “Root Cause Investigation Report” prepared by the defendant chemical company. Earlier this month, the U.S. District Court for the Eastern District of Louisiana ordered that the report be produced over the chemical company’s objection that the report was protected by the attorney-client privilege. In support of its arguments, the chemical company submitted an affidavit from an in-house counsel that participated in the investigation....
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