Corporate Environmental Lawyer

WHO Issues Indoor Air Quality Guidance

By E. Lynn Grayson

The World Health Organization (WHO) recently issued its first guidance on indoor air quality concerns. The new report titled WHO Guidelines for Indoor Air Quality-Selected Pollutants evaluates exposure risks and other considerations for nine chemicals commonly found in indoor air. The nine chemicals addressed in the report are benzene, carbon monoxide, formaldehyde, naphthalene, nitrogen dioxide, polycyclic aromatic hydrocarbons, radon, trichloroethylene, and tetrachloroethylene.

The U.S. EPA's Review of the Draft 2002 Subsurface Vapor Intrusion Guidance

By James A. Vroman

On August 30, 2010, the U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") published its "Review of the Draft 2002 Subsurface Vapor Intrusion Guidance."  OSWER's Review of the Draft 2002 Guidance suggests that when OSWER finalizes the Draft 2002 Guidance, which it has promised will be done by November of 2012, the final version of the Guidance will present a more rigorous and comprehensive, and, thus, a more expensive, Soil Vapor Intrusion ("SVI") assessment process than the one presented in the Draft 2002 Guidance.  For example, the Review advised that the EPA plans to include in the final version of the SVI Guidance, in addition to the list of chemicals that will trigger a SVI assessment, "chemical-specific characteristics" that will be used to identify chemicals of concern that may generate vapors.  The EPA will also update the toxicity values of a number of the chemicals listed in Table 1 of the Draft 2002 Guidance.  In addition to these changes to the Draft Guidance, OSWER noted that the SVI assessment process that will be presented in the final version of the SVI Guidance will recommend that the assessment evaluate multiple lines of evidence rather than a single line of external evidence such as soil-gas samples or externally collected groundwater samples.  Consistent with this recommendation, the Review also noted that the final version of the Guidance will provide that the SVI assessment should expand its evaluation of SVI risks beyond single-family residential buildings to include other types of buildings such as non-residential and mixed-use buildings. 

Mine Safety & OSHA Reform Bill Approved by House Committee

By Gabrielle Sigel

On July 21, 2010, the Education and Labor Committee for the House of Representatives voted 30-17 to send to the full House the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663). The bill incorporates portions of the previously introduced Protecting America's Workers Act (H.R. 2067, S. 1580) and addresses safety in both mines and other workplaces. With respect to revisions to the Occupational Safety and Health Act, the Byrd bill increases civil and criminal penalties, expands family members' rights in settlement of violations, requires abatement during the period that citations are contested, and enhances protection for whistleblowers. The Committee also passed amendments to H.R. 5663 which affects the employer's burden of proof and the statutory standard for criminal liability. In addition, the Committee approved providing OSHA enhanced mechanisms for requiring state plan programs to conform to federal requirements. The authority of the Mine Safety and Health Administration ("MSHA") would be expanded to allow for increased penalties and enhanced enforcement, including with respect to the right to close down an unsafe mine, subpoena documents and testimony, and require additional training for miners. Republican efforts to modify these expansions of OSHA's and MSHA's authority were largely rejected, and the bill was voted out of Committee along party lines.

U.S. Chemical Safety Board Investigating Deepwater Horizon Oil Rig Blowout

By Gabrielle Sigel

On June 25, 2010, Congress confirmed the appointments to the two last vacant positions on the U.S. Chemical Safety Board ("CSB"): Dr. Rafael Moure-Eraso, as CSB Chairman; and Mark Griffon, as CSB Member. On June 18, 2010, the CSB also informed Congressmen Waxman and Stupak, of the House Committee on Energy and Commerce, that the CSB intends to investigate the April 20, 2010 Deepwater Horizon oil rig explosion. This investigation is occurring in response to a request made by the Congressmen earlier in June. The CSB, in operation since 1998, is an independent agency charged with investigating industrial chemical incidents. It has no authority to issue fines or citations, but its recommendations are often relied on by other government agencies, industry organizations, and unions.

In its June 18, 2010 letter confirming that the CSB intends to proceed with its investigation of the "root causes" of the Deepwater Horizon incident, then Chairman John Bresland stated that the CSB was uniquely able to assess the incident due to its "past work on BP's culture and corporate safety oversight." In particular, it noted that CSB's investigators of the Deepwater Horizon incident will include those who investigated the March 23, 2005 explosion at BP's Texas City refinery. However, the CSB emphasized that it did not intend to investigate the response to, or the impact of, the Gulf oil spill.

Finally, the CSB informed Congress that to conduct the Deepwater Horizon explosion investigation it would need to rapidly wind down or terminate other investigations, and that it would be requesting additional funding, as needed, from Congress. The CSB noted that the investigation of the Texas City refinery incident alone cost the agency approximately $2.5 million. In its letter, the CSB did not inform Congress of any target date for the conclusion of its Deepwater Horizon investigation.

Promoting Transparency for Nanomaterials

By James A. Vroman

On June 25, 2010, the Government Accountability Office (GAO) published a report entitled Nanotechnology:  Nanomaterials Are Widely Used in Commerce, but EPA Faces Challenges Regulating Risk (See GAO Report).   In this report, the GAO notes that companies are increasingly using nanoparticles in the products they manufacture and that industry is diligently conducting research and development in new and innovative ways to incorporate nanoparticles into new materials and products that will reach the market in the not-to-distant future.  The GAO acknowledges that the body of research on nanomaterials is growing.  However, at the same time, the GAO notes that little is known about the risks nanomaterials pose to human health and the environment.  As a result, the GAO strongly encourages the U.S. EPA to expand and improve its efforts to collect data and information on nanomaterials so that it may effectively regulate the manufacture and distribution of products containing nanoparticles. 

OSHA Implements Severe Violators Enforcement Program

By Gabrielle Sigel

On June 18, 2010, OSHA implemented its Severe Violators Enforcement Program ("SVEP") against employers who have "demonstrated indifference" to OSH Act compliance. (Click here to read OSHA's SVEP Instruction in its entirety.) The OSHA Instruction describing the program, CPL 02-00-149, replaces OSHA's Enhanced Enforcement Program, which was first announced in 2003.

An employer is deemed to qualify as one who has demonstrated indifference if any of the following criteria are met:

• Fatality or catastrophe (3+ employees hospitalized) after one or more willful or repeat violations or a failure to abate a serious violation.
• Two or more willful, repeat or failure-to-abate violations based on high gravity serious violations of a "High-Emphasis Hazard." A High-Emphasis Hazard includes fall hazards in all industries and amputation, combustible dust, crystalline silica, lead, excavation/trenching, and shipbreaking hazards as covered by OSHA National or Special Emphasis Programs.
• Three or more willful, repeat, or failure-to-abate violations based on high gravity serious violations related to hazards from the release of a highly hazardous chemical, as defined in the Process Safety Management Program, 29 CFR § 1910.119.

OSHRC Refuses to Find Asbestos Exposure a Serious OSH Act Violation

By Gabrielle Sigel

In Secretary of Labor v. ConocoPhillips Bayway Refinery, OSHRC No. 07-1045 (June 15, 2010), the Occupational Safety & Health Review Commission ("OSHRC") modified the judgment of an Administrative Law Judge ("ALJ") who had affirmed OSHA's citation of violations of the asbestos regulations as "serious violations." (Click here to read OSHRC's Decision and Order) In this case, Conoco employees were working in an underground pipeline when they chipped and cut through tar-like material containing asbestos at between 2 to 25%. OSHA found that Conoco had violated the "asbestos in construction" standard, 29 CFR § 1926.1101. OSHA characterized all of the violations as "serious," and the ALJ affirmed that characterization and assessed a penalty of $1,875 for each of the nine cited items.

OSHRC reversed the "serious" characterization, finding that OSHA had not proven that the 20-30 minutes of work on the coating around a pipe sleeve "could have generated, and exposed Conoco employees to, a harmful amount of asbestos." OSHRC Opinion at p. 3. The employees were found to be doing Class II asbestos work, which is "not presumed to generate any particular level of asbestos." Id. at p. 4.

Given that the Secretary of Labor had failed to introduce "case-specific evidence" of an exposure to a harmful amount of asbestos, OSHRC changed the violations' characterization to "other-than-serious" and reduced the penalty to $350 per violation.

OSHA Moves on Walking-Working Surfaces Revisions . . . Again

By Andi S. Kenney

On May 24, OSHA published a proposed rule to amend its walking-working surfaces and personal protective equipment standards, Subparts D and I of the General Industry Standards.  The proposed revisions are intended to reduce the number of workplace injuries and fatalities due to slips, trips and falls by requiring the use of updated technologies and current industry practices.  Among other changes, the revisions in Subpart D would require employers to provide fall protection to all employees working at heights of four feet or more and would establish specific requirements for the fall protection system used.  Revisions to Subpart I would establish criteria and performance requirements for the use of personal fall protection systems.

The revisions would also make general industry requirements more consistent with those in the construction and maritime industries.  Like the construction standard, the proposed rule would eliminate the preference for guardrails and would, instead, permit employers to choose from one of several conventional fall protection systems (guardrail systems, safety net systems, travel restraint systems, and personal fall protection systems) or non-conventional means, such as establishing designated areas for work, provided established criteria are met.

This new proposed rule supersedes the proposal published in the Federal Register on April 10, 1990 (55 FR 47660) and republished on May 2, 2003 (69 FR 23528) but retains many of its provisions.  One notable difference, however, is that the recent proposal eliminates the option to designate qualified climbers, except in outdoor advertising.  OSHA seeks additional comment on that issue as well as on the application of the rule to rolling stock and motor vehicles, fall protection on stacked materials, and building anchorages for rope descent.  Comments are due by August 23, 2010.

The proposed rule is published at 75 FR 28862.  At 291 pages, it is broken up into six parts that can be found Part 1, Part 2, Part 3, Part 4, Part 5 and Part 6. 

EPA Says Formaldehyde Causes Cancer

By E. Lynn Grayson

EPA announced the release of the draft Toxicological Review of Formaldehyde – Inhalation Assessment in the June 2, 2010 Federal Register. EPA found that the chemical, present in a wide variety of consumer products, causes cancer when inhaled. The new findings also conclude that formaldehyde could be up to five times more likely to cause cancer in people than the EPA calculated in 1989 when it classified the chemical as a probable human carcinogen. The Centers for Disease Control and Prevention estimates that U.S. residents typically are exposed to daily formaldehyde concentrations of 10 ppb to 30 ppb indoors. By comparison, EPA’s draft assessment proposes candidate reference concentrations for this chemical ranging from 4 ppb to 9 ppb. 

The Formaldehyde Council, Inc. (“FCI”), a non-profit association that represents the leading producers and users of formaldehyde in the U.S., disagrees with EPA’s findings in the draft report. FCI plans to submit additional comments detailing the industry’s position and welcomes the further review to be conducted by the National Academy of Sciences.

EPA seeks public comments on this draft assessment through July 31st. EPA has scheduled a public listening session that will be held on July 27th.

OSHA States Policy RE Training In Foreign Language

By Gabrielle Sigel

In an April 28, 2010, memorandum to all OSHA Regional Administrators, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, reiterated OSHA’s policy that employee training must be conducted in a manner that employees can understand.  Many OSHA standards explicitly require training and some require that employees acquire knowledge about a particular issue, but none specify the language in which the training must be provided.