Wednesday, August 17, 2011

National Electrical Manufacturers v. US Department of Energy

Aug 16: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1533. On Petition for Review of an Order of the Department of Energy. In a split decision the majority Appeals Court
denied the petition for review. The National Electrical Manufacturers Association (NEMA) petitions for review of a final rule promulgated by the United States Department of Energy (DOE) setting forth energy conservation standards for electric induction motors ranging in power output from .25 to 3 horsepower. See Energy Conservation Standards for Small Electric Motors: Final Rule, 75 Fed. Reg. 10874 (Mar. 9, 2010) (codified at 10 C.F.R. pt. 431) (Final Rule). In promulgating the Final Rule, the DOE invoked its authority to establish energy conservation standards for "small electric motor[s]," a term defined by the Energy Policy and Conservation Act (EPCA). See 42 U.S.C. § 6311(13)(G).
    NEMA contends that the relevant statutory definition unambiguously excludes all such motors exceeding 1 horsepower, as well as certain motors rated at and less than 1 horsepower, from being regulated as small electric motors. The majority Appeals Court said, "because the Final Rule embodies a permissible interpretation of the statutory definition, we deny the petition for review." The majority explained that, the resolution of the challenge turns on the meaning of the term "small electric motor," which, as provided by the EPCA, "means a NEMA general purpose alternating current singlespeed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG1-1987." 42 U.S.C. § 6311(13)(G). MG1-1987 is an industry publication that sets forth specifications for electric motors and generators, which collectively are called "machines." The publication classifies machines in various ways, such as by size, application, electrical type, and variability of speed.
    In the Determination, the DOE identified one "key issue" as "the definition of a 'small electric motor' and precisely which motors are covered by this rulemaking." The DOE consulted MG1-1987 to address this question, observing that "the two-digit frame series" specified in the statutory definition "encompasses NEMA frame sizes 42, 48, and 56, and motors with horsepower ratings ranging from [.25] to 3 horsepower."
    NEMA's objections track the delineations between small and medium motors set forth in Parts 10 and 12 of MG1-1987. Thus, NEMA maintains that six-pole motors are not within the definition if they exceed .5 horsepower; that four-pole motors are not if they exceed .75 horsepower; and that two-pole motors are not if they exceed 1 horsepower. NEMA further asserts that, because these more-powerful motors fall outside the definition, the Appeals Court must vacate the Final Rule in its entirety, as those motors were included in the calculations supporting DOE's determination that the Final Rule was warranted.
    The majority states, "For NEMA to prevail, the statutory definition must unambiguously incorporate the horsepower limitation that NEMA contends is found in MG1-1987. In light of the language and structure of the definition, as well as ordinary principles of grammar, we conclude that the definition does not unambiguously incorporate such a limitation. . . We do not reach or decide the broader question of whether the term 'NEMA general purpose . . . motor' unambiguously incorporates the 1987 version of MG1."
    The dissenting justice indicates, "When viewed in context, the statute we are reviewing is clearly unambiguous, and the Department of Energy's (DOE) final rule is contrary to the statute and Congress's clear direction. Therefore, I would grant the petition, vacate the final rule, and remand the matter to DOE for action consistent with the law. . . Congress certainly intended no such result. By referring to MG1-1987 in the statute, Congress incorporated the publication in its entirety, including the ratings and standards which defined small motors. Thus, Congress intended to grant DOE authority only to regulate small electric motors, which in 1992 Congress and NEMA understood to be motors of one horsepower or less. . ."
    Access the complete opinion and dissent (click here). [#Energy/Efficiency, #CA4]

Secretary of Labor v. ConocoPhillips Bayway Refinery

Aug 16: In the U.S. Court of Appeals, Third Circuit, Case no. 10-2893. On Appeal from the Occupational Safety and Health Review Commission. In this appeal, although ConocoPhillips Bayway Refinery is the real party in interest, the Appeals Court is asked to decide between different interpretations of agency regulations -- the one announced by the Secretary of Labor (Secretary), the other by the Occupational Safety and Health Review Commission (OSHRC). Both entities are part and parcel of the Department of Labor. In the appeal, because two factions within the same government agency disagree with each other over the application of a standard, the Appeals Court is thrust into resolving what is essentially an internal dispute. The Appeals Court held that "the Secretary's interpretation comports with the standard we established in Secretary of Labor v. Trinity Industries, 504 F.3d 397 (3d Cir. 2007)."
    The Secretary petitioned the Court to challenge the determination of the OSHRC that nine asbestos violations by ConocoPhillips Bayway Refinery were "not serious" rather than "serious" under 29 U.S.C. § 666. The Secretary originally cited Conoco for nine "serious" violations of the asbestos in construction standard, 29 C.F.R. § 1926.1100, under the Occupational Safety and Health Act (Act), 29 U.S.C. §§ 651-678.
    The Appeals Court states further, "We conclude that under Trinity, the violations in this case were "serious," and that the Secretary is not required to proffer case-specific evidence to meet Trinity's standard. We therefore vacate the Order of the Commission, and remand to the Commission with the direction that it affirm the citations as "serious" and reconsider the penalty for the violations in light of this opinion.
    Access the complete opinion (click here). [#Toxics, #CA3]