On June 5, 2014, Governor Quinn signed a bill amending the Illinois Workers' Compensation Act and limiting protection for third party safety consultants from workers' suits. The Workers' Compensation Act prevents employees who sustain personal injuries or death in the line of duty from suing their employers for damages—establishing the workers' compensation program as the exclusive remedy. Prior to the Amendment, Section 5 of the Act explicitly stated that there is no common law or statutory right to recover damages from the employer, the employer's insurer, broker or "service organization retained y the employer, his insurer or his broker to provide safety service, advice or recommendations to the employer." The Amendment, which became PA 098-0633, limits the scope of protection from civil lawsuits to service organizations that are "wholly owned by the employer, his insurer or his broker and that provides safety service, advice or recommendations." The result is that independent, third-party safety consultants retained by employers in Illinois can no longer claim that they are covered by the workers' compensation exclusivity provision. Those safety consultants are now potentially subject to suit by injured employees who may claim their injuries are the result of the advice the consultants provided to their employers.
Illinois employers and their safety consultants may want to review should consider reviewing their consulting agreements to determine how the agreements address these potential risks, if at all. Likewise, safety consultants should review their insurance coverage to make sure it is adequate.
A copy of PA 098-0633, which amends the Worker Compensation Act and is effective immediately, can be found at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0633&GA=98.
On May 14, Kansas Governor Sam Brownback signed a bill directing the State Secretary of Labor to study and make recommendations by January 2015 regarding whether the State should assume responsibility for regulating workplace safety and health. The move is widely seen as the first step toward the State supplanting the authority of the Federal Occupational Safety and Health Administration (OSHA) to regulate occupational safety and health. Section 18 of the Occupational Safety and Health Act of 1970 allows states and territories to develop and enforce safety and health standards provided the state program is at least as effective as the federal program. Currently 25 states and two territories operate state plans. OSHA is responsible for establishing and enforcing workplace safety and health standards in the remaining states and Washington, D.C.
The bill tasks the Secretary with identifying the agreements necessary to implement a state plan, reviewing methods to finance a state plan, determining what personnel and statutory and regulatory changes are necessary to implement a state plan, and identifying the interactions with the federal government necessary to transfer authority for regulation from the Federal Occupational Safety and Health Administration to the State.
Proponents of state control point to opportunities for a more productive, cooperative relationship between business and a regulatory agency more in touch with local needs. Critics cite additional costs to the State and concerns about weaker enforcement. Whether Kansas ultimately moves forward with a state plan remains to be seen. If it chooses to do so, it will be the first state seeking initial approval of a full state plan in nearly 40 years . . . and the first in the 21st century.
The bill can be found here.
By: Alexander Bandza
As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition. The electronic (PDF) versions of these chapters are now available online:
- Chapter 3, Environmental Considerations in Corporate and Real Estate Transactions, E. Lynn Grayson, Jenner & Block LLP, Chicago;
- Chapter 4, Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions, Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago;
- Chapter 5, Illinois Environmental Forums, Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago; and
- Chapter 10, Treatment of Environmental Obligations in Bankruptcy, Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago.
The entire publication is available from IICLE here.
In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.
Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.
As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.
In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.
We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.
In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.
By: E. Lynn Grayson
The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.
According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.
The following chapters in this publication were authored by Jenner & Block EHS lawyers.
* * *
Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago
Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago
* * *
* * *
Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago
The publication is available from IICLE at http://iicle.inreachce.com/.
By: Steven M. Siros
On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides". This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.
U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.
In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.
U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.
In December 2013, the National Institute for Occupational Safety and Health (NIOSH or "the institute") released its most updated nanotechnology strategic plan - Protecting the Nanotechnology Workforce: NIOSH Nanotechnology Research and Guidance Strategic Plan, 2013-2016 (the "Plan"). Nanotechnology involves the manipulation of matter on a near-atomic scale to produce new materials and devices. Many of these materials are already in commerce in products ranging from cosmetics, to clothing, to industrial and biomedical applications. The benefits of nanotechnology are vast, as this technology can help address global problems concerning energy, transportation, pollution, health, and food. The economic impact is also great. In fact, the National Science Foundation estimates that, by 2020, nanotechnology will have a $3 trillion impact on the global economy and employ 6 million workers in related product manufacturing.
However, the development of nanotechnology and related materials presents new challenges to understanding and managing potential employee health and safety risks. Specifically, the Plan discusses how "[m]any knowledge gaps still remain on how to work safely with all of these [nano]materials." NIOSH had previously created a series of reports and publications based on its research to address health and safety hazards related to this technology. This research identified adverse health effects in animals exposed to various nanomaterials, assessed exposure to workers, initiated epidemiologic research, and provided guidance on control technologies and medical surveillance. But, the Plan notes how, given the advanced nanomaterials currently under development, there are likely additional potentially hazardous characteristics that will need to be addressed in the future. In this regard, NIOSH's expressed goal is to continue to provide solutions that will prevent work-related illness and injury. Thus, the Plan stresses how timely and targeted research is needed to define hazards, exposures, and risks, and to provide guidance for the safe handling of nanomaterials.
Notably, the NIOSH Nanotechnology Research Center (NTRC) was established in 2004 to coordinate nanotechnology across the institute. Its mission has been to provide national and world leadership for research and guidance on the implications of nanomaterials for work-related injury and illness, and for the application of nanomaterials in occupational safety and health. Ten critical areas of research have been identified, and the Plan contemplates expanding research activities in these areas: toxicity and internal dose; measurement methods; exposure assessment; epidemiology and surveillance; risk assessment; engineering controls and personal protective equipment (PPE); fire and explosion safety; recommendations and guidance; global collaborations; and applications. Additionally, the Plan focuses on addressing five NIOSH NTRC strategic goals:
- Increasing the understanding of new hazards and related health risks to nanomaterial workers;
- Expanding the understanding of the initial hazard findings of engineered nanomaterials;
- Supporting the creation of guidance materials to inform nanomaterial workers, employers, health professionals, regulatory agencies, and decision-makers about hazards, risks, and risk management approaches;
- Supporting epidemiologic studies for nanomaterial workers, including medical, cross-sectional, prospective cohort, and exposure studies; and
- Assessing and promoting national and international adherence with risk management guidance.
In sum, as outlined in its new Strategic Plan, NIOSH will continue to use its resources and partner with others to efficiently and effectively protect the nanotechnology workforce to ensure the responsible development of this new and ever-evolving technology.
To view the Plan, please click here.
By: Alexander Bandza
The authors of the Corporate Environmental Lawyer Blog are pleased to announce the launch of a new feature, “Environmental & Energy Cert. Petition Watch.” This feature will provide weekly updates on petitions for certiorari filed with the U.S. Supreme Court that may be of interest to environmental and energy lawyers. In the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert petitions submitted from August 2013 through the present (as of December 17, 2013), click here.
Lower Court: 2d. Cir.
Subject: Supremacy Clause
Question(s) Presented: [W]hether state “dual impact” occupational safety and health laws that regulate workers as workers, not as members of the general public, can simultaneously be laws of general applicability that are not subject to federal preemption.
By: Andi S. Kenney
On November 6, 2013, the Fifth Circuit Court of Appeals affirmed an Administrative Law Judge’s decision that Shaw Global Services, Inc. violated the respirator fit-testing requirements by allowing sixteen months between fit tests. Shaw Global Energy Services v. Perez, Secretary of Labor, No. 12-60834 (5th. Cir., Nov. 6, 2013). The respirator standard requires an employer to “ensure that an employee using a tight-fitting facepiece respirator is fit tested prior to initial use of the respirator, whenever a different respirator facepiece . . . is used, and at least annually thereafter.” 29 CFR §1910.134(f)(2) (emphasis added). The parties did not dispute that Shaw conducted appropriate initial and subsequent fit testing; the issue was whether Shaw’s subsequent fit tests were completed in a timely manner. Shaw at 6.
The employer argued it complied with the annual fit-testing requirement because “at least annually thereafter” means that fit testing must be completed at least once each calendar year. By conducting initial fit-testing in June 2007 and subsequent fit-testing in October 2008, Shaw concluded that it met the annual retest requirement. The Secretary disagreed, arguing that “at least annually” meant “no later than 365 days after the previous testing.” Shaw at 7.
The court deferred to the Secretary in this instance, finding the Secretary’s interpretation consistent with the regulatory language and the purpose of the standard. The court noted that the employer’s interpretation could lead to a twenty-three month gap if the initial fit test was in January of one year and the retest was not completed until December of the subsequent year. Such a delay would frustrate the regulations purpose as reflected in the preamble of “standardizing the fit-testing protocols by ensuring that there are not significant fluctuations in the amount of time between tests.” Id. However, the court did not embrace OSHA’s interpretation in its entirely, “leav[ing] for another day the question of whether a gap between testing of a year and a few days would violate § 1910.134(f)(2).” Shaw at 7, fn. 3.
Although the court’s opinion focused solely on the respirator standard, it may have broader applicability because many other OSHA standards require action “at least annually.” The hearing conservation standard, for example, requires the employer to conduct audiograms at least annually (29 CFR 1910.95(g)(6)). Likewise, the lockout/tagout standard requires the employer to conduct periodic inspections of its energy control procedures at least annually (29 CFR 1910.147(c)(6)), while the fire extinguisher standard requires the employer to conduct training at least annually for certain employees (29 CFR 1910.157(d)(3) and (g)). Equipment inspections, chemical monitoring and medical examinations, comprehensive program reviews and retraining may also be required at least annually. The Shaw case is a reminder that to ensure compliance, employers must not only focus on the content of their OSHA programs but must also be mindful of the calendar when implementing them.
In lieu of formal notice and comment rulemaking, the Occupational Safety and Health Administration ("OSHA") recently issued new "voluntary" standards for workplace chemical exposure. These new voluntary exposure limits can be found on OSHA's website in a tabular format, allowing for side-by-side comparisons of OSHA's existing permissible exposure limits ("PELs") with these new, voluntary exposure levels recommended by organizations such as the National Institute for Occupational Safety and Health and the American Conference of Governmental Industrial Hygienists.
According to David Michaels, OSHA's existing chemical standards are not adequately protective and he advises employers to utilize these recommended exposure limits "since simply complying with OSHA's antiquated [PELs] will not guarantee that workers are safe." Of course, from a regulatory perspective, OSHA can only enforce its existing PELs. From a toxic tort exposure perspective, however, plaintiffs' counsel are sure to argue that these "voluntary" standards establish the appropriate exposure threshold and that any exposure above these voluntary standards is harmful (and in turn, compensible). For many chemicals, the difference between the enforceable PEL and the voluntary limit is substantial. For example, the OSHA PEL for tetrachloroethylene is 100 ppm and the new voluntary standard is 25 ppm.
Please click here to see a copy of the OSHA news release on this topic.
U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.
The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.
In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.
The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing environmental laws.
Follow live as the Costa Concordia, which capsized off Giglio Island, Italy, is raised in the biggest salvage operation of its kind in maritime history. Progress has been made and the ship is slowly rightsizing with efforts expected to continue at least through Tuesday.
The efforts of 430 professionals working round the clock to right the Costa Concordia have come up against the complex reality of what has been called the most challenging salvage operation ever performed, with the granite rocks underneath the ship and rough seas.
Rescue teams have managed to stabilize the ship, which is anchored to underwater granite with four submarine anchor blocks and wires, each able to withstand a thousand-ton force. Twenty-five welders are working to reinforce the hull of the Concordia on the sea side, where the wires and hull projections used for stability and to pull up the vessel will be attached.
Salvage workers are drilling holes into the granite that will support six undersea platforms that should arrive in February. On the sea side, between the platforms and the rocks, salvagers will also place an artificial bottom made of 18,000- to 20,000-ton cement bags – about the size of three-quarters of a football field – to create an even surface on the slanting sea bottom.
Once it is sea-ready, the ship will be pulled to a large and deep harbor located a convenient distance from the shipwreck site, although few harbors in Italy fit that description.
Over all, the quality of the water around the half-submerged ship has not been significantly polluted, according to Tuscany's Regional Agency for Environmental Protection, which is in charge of monitoring the site. A fluid spill from the ship's engine room last month, and other small spills, are not of great concern, the agency said.
Investigators are expected to seek indictments of the ship's captain, Francesco Schettino, eight other crew members and Costa Cruises officials in February. Charges could include manslaughter, causing a shipwreck, abandoning ship before passengers were evacuated and causing environmental damage.
View a live cam of the salvage operation at http://www.telegraph.co.uk/news/worldnews/europe/italy/10311659/Costa-Concordia-salvage-operation-live.html.
EPA, OSHA and ATF have issued a chemical advisory that provides information on the hazards of ammonium nitrate (AN) storage, handling and management. This action supports the goals of President Obama's August 2013 executive order on "Improving Chemical Facility Safety and Security." The advisory provides lessons learned for facility owners and operators, emergency planners and first responders from recent incidents, including the explosion in West, Texas, involving AN in order to prevent similar incidents.
The advisory takes steps now to reduce the risks associated with AN to workers, first responders and communities. It is part of an ongoing coordinated federal government effort to improve chemical safety with regards to AN and includes information on ensuring proper building design, storage containers and fire protection at their locations; learning from other accidents; and knowing and understanding the hazards that exist when developing their emergency response plans.
Earlier this month, President Obama directed the federal government to improve operational coordination with state and local partners; enhance federal agency coordination and information sharing; modernize policies, regulations and standards; and work with stakeholders to identify best practices to improve chemical safety.
President Obama established the Chemical Facility Safety and Security Working Group. To this end, this advisory was developed by working group members and was facilitated by the working group process.
View the advisory and more information on EPA's risk management program: http://www.epa.gov/emergencies/content/rmp/index.htm.
View President Obama's Executive Order: http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
NIOSH Study Finds That Workers’ Silica Exposure At Fracking Sites Exceeds Occupational Health Criteria
A groundbreaking recent study authored by the National Institute for Occupational Safety and Health (NIOSH), “Occupational Exposures to Respirable Crystalline Silica During Hydraulic Fracturing,” discusses the harm related to an employee’s exposure to respirable crystalline silica during hydraulic fracturing (“fracking”). The study also includes recommendations for companies which utilize fracking in their operations.
Fracking involves the high pressure injection of large volumes of water or sand, and smaller amounts of well treatment chemicals, into a gas or oil well to fracture shale or other rock formations and release the hydrocarbons trapped inside. Crystalline silica (also known as “frac sand”) is often used as a proppant to hold open cracks and fissures created by the hydraulic pressure. The mechanical handling of frac sand creates respirable crystalline silica dust, which is a potential exposure hazard for workers. Specifically, frac sand is moved along transfer belts and by trucks for its use in the fracking process. This process often involves hundreds of thousands of pounds of frac sand, which creates airborne silica dust. Occupational exposure to respirable crystalline silica is already an established hazard in many industries, including those which involve mining, sandblasting, foundry work, agriculture, and construction, but not yet for oil and gas extraction work.
According to the authors, this new NIOSH study is the “first [known] systematic study of work crew exposures to crystalline silica during hydraulic fracturing.” The study cites occupational health knowledge gaps relating to fracking, including:
1) understanding which job titles have risks of chemical exposures;
2) quantifying the magnitude of exposure risks for both chemicals and minerals; and
3) understanding the relative contribution of all likely routes of exposure, including inhalation, dermal exposures, and ingestion.
Further, in noting the seriousness of the health impacts of crystalline silica, the study observes that the inhalation of respirable crystalline silica can cause health issues such as silicosis, lung cancer, autoimmune disorders, kidney disease, and an increased risk of tuberculosis.
NIOSH initiated the study to assess chemical exposures to oil and gas extraction workers in 2010. Approximately 435,000 workers were employed in the U.S. oil and gas extraction industry in 2010, nearly half of which were employed by well servicing companies, including companies that conducted fracking. To date, exposure assessments for respirable crystalline silica during fracking efforts have been the predominant focus of the NIOSH field effort.
In conducting the study, researchers at NIOSH collected personal breathing zone samples at well sites in five states (Colorado, Texas, North Dakota, Arkansas, and Pennsylvania) from workers with different job titles between August 2010 and September 2011, to evaluate worker exposure. At all sites, there were respirable silica samples which exceeded the occupational health criteria (e.g., The Occupational Safety and Health Administration’s (OSHA’s) personal exposure limit, the NIOSH recommended exposure limit, and/or the American Conference of Governmental Industrial Hygienists threshold limit value). In some instances, these crystalline silica exposures exceeded ten or more times the applicable occupational health criteria. Based on these evaluations, an occupational health hazard was determined to exist. In addition, seven points of dust generation were identified, including sand handling machinery and the dust generated from a work site itself.
According to the study, companies are just starting to implement controls to limit silica-containing dust generation during fracking due to the relatively recent understanding of the magnitude and hazards of exposure risks. Recommendations for companies that conduct hydraulic fracturing using frac sand include product substitution when feasible, engineering controls or modifications to sand handling machinery, administrative controls, and the increased use of proper personal protective equipment.
The study, published in the Journal of Occupational and Environmental Hygiene, is available here.
Jenner & Block Program: “Professional Responsibility And Ethics For Environmental Lawyers” – May 8th
You are invited to join us on Wednesday, May 8, at 12:00 noon on the 45th Floor of the Chicago office for a program entitled "Professional Responsibility and Ethics for Environmental Lawyers." This professional responsibility and ethics program will focus not only on a general update of these issues but discuss legal scenarios and situations unique to environmental law practices.
Our two speakers will be: 1) Miranda K. Mandel, Loss Prevention Counsel, Attorneys' Liability Assurance Society, Inc. (ALAS); and, 2) Michael L. Shakman, Partner, Miller Shakman & Beem LLP.
Enjoy lunch, network with fellow environmental lawyers and learn what experts suggest we do to manage difficult situations that arise in our law practices.
Please forward any RSVPs to Jan Wall (firstname.lastname@example.org).
ELI and Jenner & Block Program: “Obama’s Second Term: Implications For Environmental Practice” – April 24th
You are invited to join us on Wednesday, April 24, at 12:00 noon on the 45th Floor of the Chicago Office, for an important luncheon program we are co-sponsoring with the Environmental Law Institute ("ELI") entitled "Obama's Second Term: Implications for Environmental Practice." This program will bring together three speakers, each of whom played a key role in environmental matters during President Obama's first term, and each of whom is very knowledgeable concerning EPA enforcement trends, emerging environmental issues, and environmental policy challenges.
The three speakers will be (1) John Cruden, currently the President of ELI, who previously served for many years as the Deputy Assistant Attorney General in charge of environmental enforcement at the Department of Justice; (2) Thomas Perrelli, Chair of the Government Controversies and Public Policy Litigation Practice at Jenner & Block, who recently returned to Jenner & Block and who previously was directly involved in environmental matters as one of the key former heads of the Justice Department; and (3) Robert Kaplan, who presently serves as Regional Counsel for Region 5 of the EPA. These speakers will share lessons learned, including what we can expect will affect business and environmental regulation during President Obama's second term.
We are privileged to partner in this program with ELI, one of the preeminent, non-partisan environmental law organizations in the country. Headquartered in Washington, DC, ELI has played a pivotal role since the early 1970s in helping to shape environmental law, policy, and management, both domestically and abroad. This program will present an insider's viewpoint on what we anticipate in environmental enforcement and regulation from the DOJ, EPA, and White House over the next four years.
Please forward any RSVPs to Elizabeth Wong (email@example.com).
On October 3, 2012, the United States District Court for the Eastern District of Pennsylvania decided two questions of first impression under maritime law: (1) does maritime law recognize the sophisticated user and/or sophisticated purchaser defenses and (2) is a Navy ship a "product" for purposes of strict product liability law? The plaintiff was a welder who claimed that he was exposed to asbestos aboard various Navy ships during the 1960s and 1970s. He brought both negligence and strict product liability claims alleging that the defendants (Navy shipbuilders) had failed to warn him of the hazards of asbestos in the Navy ships.
The court first evaluated the application of the sophisticated user/purchaser defenses. After considering the policy objectives of maritime law, the court found the sophisticated purchaser defense to be unavailable for asbestos claims under maritime law. The court was concerned that application of the sophisticated purchaser defense would have the effect of leaving all Navy personnel without a remedy since Navy personnel are already precluded from recovering from the United States government for their asbestos-related injuries. With respect to the sophisticated user defense, however, the court noted that recognition of this defense under maritime law would serve to "encourage participation in maritime commerce by limiting—in a reasoned manner—potential liability of those involved in such commerce while continuing to protect those sea workers in need of protection (i.e., those workers who are not sophisticated as to the hazards to which their work exposes them)." The court therefore found the sophisticated user defense to be applicable to negligence claims under maritime law.
Relying on the Restatement (Second) of Torts, the court limited the applicability of the sophisticated user defense to negligence claims and found that the defense was not a bar to plaintiff's strict liability claims. The court therefore proceeded to evaluate whether the Navy ship is a "product" for purposes of strict product liability under maritime law. The court found that as between a shipbuilder and the manufacturer of the various products within the ship, the entities best able to protect sea-bound workers and to bear the burden of preventing harm to these workers are the manufacturers of the various products aboard the ship. The court was concerned that to place upon a Navy shipbuilder potential liability for the tens of thousands of products assembled in a Navy ship pursuant to Navy specifications would "be an undue, unmanageable, and cumulative burden likely to discourage the activity of shipbuilding." The court therefore found that the Navy ship was not a "product" within the meaning of maritime strict product liability law.
To view a copy of the court's order in Mack v. General Electric Company et al., please click here.
If budget sequestration takes effect on January 2, 2013, U.S. EPA will face a $716 million budget cut. According to a September 14, 2012 report from the White House Office of Management and Budget ("OMB"), U.S. EPA's budget would be reduced from approximately $8.4 billion to $7.7 billion. The OMB report projects that the Superfund program would face cuts of approximately $122 million; state and tribal assistance grants would be cut by approximately $293 million; and U.S. EPA's program account would be cut by approximately $220 million. The OMB report goes on to acknowledge that these cuts would degrade U.S. EPA's "ability to protect the water we drink and the air we breathe" and encourages Congress to act to prevent these cuts from being triggered. According to an U.S. EPA official, U.S. EPA is developing its 2014 fiscal year budget without accounting for these significant budget cuts. To see a copy of the OMB report, please click here.
The Chicago Bar Association (CBA) Environmental Law Committee, the CBA Young Lawyers Section Environmental Law Committee, and the Illinois State Bar Association (ISBA) Environmental Law Section are hosting an Environmental Networking Reception on September 11, 2012, from 4 pm to 6 pm. The networking reception will be held at the Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois.
Jenner & Block attorney and co-chair of the CBA Young Lawyers Section Environmental Law Committee, Allison A. Torrence, will make brief remarks at the reception along with other representatives from the CBA and ISBA.
If you would like to attend, please RSVP by September 7, 2012, to Dave Scriven-Young at firstname.lastname@example.org.
Thank you very much for your support of our blog – Corporate Environmental Lawyer – over the past two years. After 300 postings, we hope that you find the information on the blog to be helpful and informative. Every year, the American Bar Association publishes a list of the top 100 legal blogs (or blawgs). If you enjoy reading our blog, we would appreciate your help in nominating our Corporate Environmental Lawyer for the 2012 ABA Blawg 100. The nomination process is simple, takes less than five minutes and can be accessed by clicking on this link. Our URL is http://environblog.jenner.com/.
The nomination deadline is Friday, September 7, 2012. Thank you for considering our request.
EPA has proposed changes to EPCRA Section 312 Tier I and Tier II Emergency and Hazardous Chemical Inventory Forms required under 40 CFR Part 370. The new rules become effective January 1, 2014.
The reporting requirements under the community right-to-know provisions of EPCRA sections 311 and 312 are on-going obligations. These requirements apply to owners and operators of facilities that are required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical defined under the Occupational Safety and Health Act (OSHA) Hazard Communication Standard (HCS). If the hazardous chemical is present at or above the reporting thresholds specified in 40 CFR part 370, the facility owner or operator is required to submit a MSDS or a list that contains the hazardous chemical under EPCRA section 311. Under EPCRA section 312, if a hazardous chemical is present at or above the reporting threshold specified in 40 CFR part 370, the facility owner or operator is required to submit an emergency and hazardous chemical inventory form (Tier I or Tier II) to the SERC, LEPC and the local fire department by March 1 annually.
EPA will require facilities to report whether the facility storing the chemicals is manned or unmanned and the maximum number of employees who may be present at the facility at one time on both the Tier I and Tier II forms. Additionally, companies will be required to provide contact information of the facility emergency coordinator, Tier I and Tier II contact information, as well as the email addresses of the owner or operator and emergency contact. Companies will have the option of providing facility phone numbers as well.
For the Tier II forms, EPA will also require facilities to report the latitude and longitude of storage sites as well as the identification numbers assigned under the Toxic Release Inventory and risk management program. The Tier II form also will add separate data fields to report pure chemicals as well as mixtures.
EPA had proposed requiring facilities to provide contact information for parent companies on both the Tier I and Tier II forms as well. It did not finalize that requirement. Instead, facilities will have the option to list that information.
For more information, including the new rule, visit EPA's EPCRA webpage at http://www.epa.gov/oem/content/epcra/ .
On July 18, 2012, Jenner & Block Partners, E. Lynn Grayson and Katherine M. Rahill published a guest column in Law360 discussing new and emerging environmental issues important to in-house counsel. These issues include:
- Lack of Government Resources/Insufficient Funding
- Environmental Disclosures
- Corporate Environmental Responsibility
- Water Scarcity
- Memoranda of Understanding (MOUs)
- Financial Assurance
- Soil Vapor Intrusion
- EPA Toxicological Reviews
- Improvements in Technology
Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at email@example.com and firstname.lastname@example.org. More information is available at www.jenner.com.
To access the full article, please click here.
The Occupational Safety and Health Administration ("OSHA") has issued its first official directive regarding OSHA's communications with a deceased worker's family after the occurrence of a workplace fatality. OSHA Directive No. CP: 02-00-153, effective April 17, 2012. The Directive provides guidance, not regulations, on how OSHA will communicate with the family from the point that OSHA begins its investigation of the accident through potential settlement of any citation that may be issued relating to the fatality. The Directive imposes obligations on OSHA personnel, not on an employer, but employers would be well-advised to be aware that OSHA will be initiating these ongoing communications.
The federal Occupational Safety and Health Review Commission ("OSHRC") recently clarified who can qualify as a "company executive" authorized to certify the accuracy of a company's annual summary of workplace injuries and illnesses. Secretary of Labor v. C.P. Buckner Steel Erection Inc., No. 10-1021, OSHRC, Apr. 25, 2012. The annual summary is required by regulations under the Occupational Safety & Health Act, 29 CFR 1904.32.
Two recent U.S. Court of Appeals decisions limit the Occupational Safety and Health Administration's ("OSHA") ability to enforce regulations regarding workplace injury and illness reporting. OSHA requires most U.S. employers to prepare detailed logs of every significant work-related injury and illness. 29 C.F.R. Part 1904. The injury/illness must be recorded within seven days of an employer's knowledge of the incident. 29 C.F.R. 1904.29(b)(3). Two different Court of Appeals decisions addressed OSHA's enforcement with respect to the injury/illness regulations.