Help Yourself To Some Thanksgiving Turkey With A Side Of Renewable Energy


 By Allison A. Torrence


Here is some food for thought as we get ready to gobble down some turkey this Thanksgiving: A new $25 million plant under construction in North Carolina will convert turkey waste into energy. Prestage AgEnergy will use 55,000 tons of turkey litter a year to produce the equivalent of 95 million kilowatt hours of electricity and feed that renewable electricity back to the grid.

North Carolina has a lot of turkey waste on hand – it ranks second in the nation behind Minnesota in turkey production. In light of its prolific turkey farming, in 2007, the state passed an energy policy mandate that requires utilities to use a small amount of poultry waste-generated power. This will not be the first turkey-waste energy plant – Minnesota currently has a 55-megawat power plant designed to burn poultry waste as its primary fuel. However, the new North Carolina plant will reportedly be the first facility designed to run on 100-percent turkey waste.

Local reporting on the Prestage AgEnergy plant can be found here and here.

Law 360 Publishes Lynn Grayson's Article, "MBTA: Unintended Consequences Of An Old Law"


 By Allison A. Torrence

This week, Law360 published Lynn Grayson’s article titled "MBTA Unintended Consequences Of An Old Law." This article discusses the Migratory Bird Treaty Act (MBTA) and addresses whether the 1918 law is really effective today in safeguarding migratory birds from modern day threats. Ms. Grayson comments that “…the MBTA has changed very little but the world we live in has changed a great deal and the most significant threats to migratory birds today are vastly different than in the past.”

The article examines how modern day business and real life circumstances often expose companies and individuals to non-compliance and even potential criminal prosecution for incidental takings in the context of the MBTA. While U.S. Fish & Wildlife Service (FWS) traditionally manages incidental take matters through reliance upon voluntary guidelines, restricted permitting options and agency enforcement discretion, she questions whether that approach continues to work today.

Ms. Grayson concludes that “…Without legislative or possibly regulatory change, MBTA compliance for industry remains complicated, uncertain and costly. All industry sectors are entitled to a fair and just statute that delineates in a straightforward manner what is required to comply with the MBTA, as well as a clear understanding of the enforcement consequences of noncompliance. The new FWS proposal (discussed in the article) may be a step in the right direction. An even better development would be an MBTA amendment consistent with the recent Fight Circuit Citgo ruling that imposes strict liability only in cases of intentional and direct takes of migratory birds.”

Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology


 By Allison A. Torrence



Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.

The full article is available here.

Study Purports to Find Carbon Nanotubes in Children's Lungs

Nanotubes 2
By Steven M. Siros


A recent study conducted by the University of Paris-Saclay identified the presence of carbon nanotubes in children’s lungs in France.  Researchers examined 69 randomly selected lung fluid samples and found evidence of carbon nanotubes in all 69 of the samples.  The samples were collected from the lungs of children between the ages of 2 and 17 years suffering from severe asthma.  Carbon nanotubes are often used in the manufacture of computers, clothing and healthcare technology.  Carbon nanotubes are also found in automobile exhaust.  Although the source of the nanotubes identified in the children’s lung fluid was not identified, the study found that the particulate matter was mostly composed of anthropogenic multi-walled carbon nanotubes ranging from 10 to 60 nanometers in diameter and several hundred nanometers long. 

According to the study authors, this study was the first study demonstrating that carbon nanotubes from anthropogenic sources reach human lung cells. However, others have been critical of the study, noting that previous studies have not found evidence of carbon nanotubes accumulating in the lungs.  Please click here to view the study. 

OSHA Penalty Limits to Increase Almost 80% in the Next Year, With Annual Inflation Adjustments Authorized Thereafter

Bandza_Alexander_COLOR By Alexander J. Bandza

Numbers-money-calculating-calculationBuried in the landmark Bipartisan Budget Act of 2015 (H.R. 1314) (“2015 Budget Act”) signed by the President on Monday, November 2, 2015, Section 701 requires the Occupational Safety and Health Administration (OSHA) to begin indexing its penalty limits to inflation, much like the US EPA and other federal agencies do now.  This section, called the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” (“2015 Penalties Act”), also has “catch-up” provisions, which mean that the existing $7,000 penalty limit (for other-than-serious and serious violations under OSHA, originally set in 1990) can be increased to approximately $12,477 per violation, and the existing $70,000 penalty limit (for willful and repeat violations) can be increased to approximately $124,765 per violation.  OSHA must adjust these penalties through an interim final rulemaking no later than August 1, 2016.

Continue reading "OSHA Penalty Limits to Increase Almost 80% in the Next Year, With Annual Inflation Adjustments Authorized Thereafter" »

ISO 14001:2015 – A Significant Update

By Gary Kjelleren - Ramboll Environ, Inc.

Several of the criticisms of the 2004 version of the ISO 14001 standard for environmental management systems have been that a business can achieve certification without taking into consideration impacts beyond its four walls, that management need not be significantly involved, and that the management system is not required to evaluate strategic context. The net effect has been that many “acceptable” environmental management systems are not integrated into existing business systems, stand alone as a bolt on process, are managed only by environmental technical experts, and essentially represent non-beneficial extracurricular activity for the business.  This approach does not offer performance-enhancing synergies, but instead results in care and feeding drain on already lean environmental staffs. The newly released (September 2015) ISO 14001:2015 addresses these shortcomings and more.

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IARC’s Classification of Red Meat and Processed Meats as Carcinogenic Exposes Food Manufacturers, Distributers, and Retailers to Proposition 65 Liability

Bandza_Alexander_COLOR By Alexander J. Bandza


The Internet was buzzing yesterday with news that the International Agency for Research on Cancer (IARC) of the World Health Organization (WHO) has classified red meat as a Group 2A carcinogen (“probably carcinogenic to humans”) and processed meat as a Group 1 carcinogen (“carcinogenic to humans”).  In general, IARC evaluates the environmental causes of cancer in humans, including chemicals (e.g., formaldehyde), complex mixtures (e.g., air pollution), physical agents (e.g., solar radiation), biological agents (e.g., hepatitis B virus), and personal habits (e.g., tobacco smoking).  IARC has long played a role as a source of scientific information that carries weight in federal and state regulation of potentially harmful substances and toxic tort lawsuits involving such substances.

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Jenner & Block Wins Motion to Dismiss In Alleged Pipeline Leak Federal Lawsuit

Essig_Genevieve_COLOR By Genevieve J. Essig

A Jenner & Block team including Partner Gabrielle Sigel and Associate Alexander Bandza of the Firm’s Environmental and Workplace Health & Safety group, supported by Partner Jessica Ring Amunson and Associate Amir Ali of the Firm’s Washington, D.C. office, won a significant victory in federal court environmental and pipeline litigation on behalf of clients Apex Oil Co., Inc. and Petroleum Fuel & Terminal Co. (PF&T).  Apex and PF&T are defendants in a cost recovery and injunction action brought against them by Chevron U.S.A. Inc. in the U.S. District Court for Maryland.  Chevron’s lawsuit concerns a pipeline that PF&T purchased from Chevron in 1994.  Chevron has claimed more than $30mm in damages for costs of remediating pollution allegedly caused by discharges from the pipeline over the course of approximately 20 years.

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California Bans Microbeads

GraysonBy E. Lynn Grayson


California is the ninth state to ban microbeads with passage of an aggressive new law prohibiting the tiny plastics beads by 2020. As the largest state to ban microbeads, this new California legislation appears to make it a virtual certainty that microbeads will be phased out across the country and possibly even through federal legislation.

Unlike bans enacted in Colorado, Connecticut, Illinois, Indiana, Maine, Maryland, New Jersey, and Wisconsin, A.B. 888 provides no exemptions for biodegradable plastic or a process to win approval for such an exemption. Both Michigan and Washington also are considering microbead bans.

Many personal care product manufacturers already have agreed to phase out the use of microbeads in their products over the next few years. Industry representatives agree there are alternatives and other options to replace the sector’s reliance upon microbeads. A new study concludes that 8 trillion bits of plastic enter oceans and lakes from the U.S. every day. The study also provides further support for the ban on microbeads to improve marine, environmental and public health.

Workers Comp: Will the Opt-Out Initiative Alter the 100 Year Old Social Compact Between Employers and Employees for Work-Related Injuries and Illnesses?

  By Andi Kenney

Dissatisfaction with existing workers compensation programs seems to be the norm these days. Employers are fed up with the costs of the programs, the sense that they provide incentives for employees to make false claims or to exaggerate real claims, and the bureaucratic process for claims resolution, among other issues. Employees are frustrated by the process for pursuing claims and the compensation schedules. As a result, the majority of states are considering changes to their workers compensation programs.

A few states have gone further than merely tinkering at the margins and have allowed employers to opt out of state workers compensation programs entirely. These opt-out programs alter the social compact that has driven workers compensation programs since the early 1900s—that is, that employers will provide employees who experience work-related injuries or illnesses with compensation for medical expenses and lost wages in exchange for protection from lawsuits and pain-and-suffering and punitive damages. Is this new model a more efficient way to compensate employees for work-related injuries and illnesses or is it shifting the burden to address these injuries from employers to employees and the public? A recent investigation by NPR and ProPublica sheds light on these programs and raises these questions.

Workers compensation reform will continue to be a focus for state legislatures. Perhaps opt-out programs should be part of the solution. But before states opt for opt-outs, they should understand what those opt-out programs involve and consider what minimum standards should exist for employer programs and who should be responsible for enforcing those standards.