Toxic Tort Feed

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.

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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Sustainable Energy Developments

GraysonBy E. Lynn Grayson 

A youth cools himself off at a water fountain near Marina Bay in Singapore July 27, 2015. Fifty years ago, Singapore was rationing water and struggling with smelly rivers devoid of fish and choked with waste from shipbuilding, pig and duck farms, and toilets that emptied directly into the streams. At that time, the 700 sq km island nation relied on three protected reservoirs and water imported from neighbouring Malaysia. Today, Singapore collects rainwater from two-thirds of its land through an 8,000-km drain network into 17 reservoirs; reclaims "used water" from a deep tunnel sewerage system up to 60 m below ground; and is developing technology to halve the energy used to desalinate seawater. Picture taken July 31, 2015. REUTERS/Edgar Su  - RTX1MS4LToday Thomson Reuters’ published my blog, Executive Perspective: UN Sustainable Development Summit: Sustainable Energy Developments. The blog details the new 2030 UN Sustainability Development Agenda and how the recently adopted sustainable developments goals (SDGs) will influence sustainable energy growth around the world in the coming years.

Thomson Reuters’ Sustainability blog provides a wealth of information and resources on this important topic. I like to review the Editors’ Picks to get see the latest and most interesting sustainability developments.

Seventh Circuit Opens the Door for End Run on General Causation in Toxic Tort Cases

Siros_Steven_COLORBy Steven M. Siros


ImagesA recent decision by the Seventh Circuit Court of Appeals may significantly lower the causation bar for plaintiffs in toxic tort cases. In the case C.W. & E.W. v. Textron, Inc., the Seventh Circuit was called on to evaluate a district court decision that excluded plaintiffs' experts for failing to meet the admissibility requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. The Seventh Circuit's analysis of the district court's decision was relatively straightforward and the Seventh Circuit acknowledged that the district court had carefully considered the methodology employed by plaintiffs' experts. The Seventh Circuit concluded that the district court had properly exercised its gatekeeper role under Daubert in concluding that there simply was too great an analytical gap between the data and the expert opinion being offered such that the opinion amounted to nothing more than the ipse dixit of the expert.

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US EPA Publishes Proposed List of National Enforcement Initiatives for FY2017–19

Bandza_Alexander_COLOR By Alexander J. Bandza


On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19.  This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering. 

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OSHA Proposes 10-Fold Reduction in Beryllium Workplace Exposure Limit

Torrence_Allison_COLORBy Allison A. Torrence

On August 7, 2015, the Occupational Safety and Health Administration (OSHA) published a proposed rule in the federal register that would reduce exposure limits for occupational exposure to beryllium. Beryllium is a strong but lightweight metal (it is stronger than steel, but lighter than aluminum) used primarily in the aerospace and defense industries and is classified as a strategic and critical material by the U.S. Department of Defense. OSHA estimates that approximately 35,000 workers are potentially exposed to beryllium in approximately 4,088 establishments in the United States.

Beryllium exposure is an occupational health concern because inhalation or contact with beryllium particles can cause an immune response that results in beryllium sensitization. Individuals with beryllium sensitization can develop a disease of the lungs called chronic beryllium disease (CBD) if they inhale airborne beryllium after becoming sensitized. OSHA states that beryllium exposure has also been linked to other adverse health effects such as acute beryllium disease and lung cancer.

OSHA’s current eight-hour permissible exposure limit (PEL) for beryllium is 2.0 micrograms per cubic meter of air. The current PEL was set over 40 years ago – in 1971. OSHA’s proposed rule would reduce the eight-hour PEL to 0.2 micrograms per cubic meter and require additional protections such as personal protective equipment, medical exams, other medical surveillance and training. OSHA estimates that the new rule could prevent almost 100 deaths and 50 serious illnesses each year.

OSHA’s press release on the proposed rule is available here and the full text of the proposed rule is published in the federal register. Comments on the proposed rule must be submitted to OSHA before November 5, 2015.

State Department Approves Two Cross-Border Pipelines

PipelinePresidential permits are required for cross-border pipeline projects, and the State Department recently approved transferring ownership of two existing cross-border pipelines.

Cross-border pipelines have been the subject of much controversy, primarily related to the highly-publicized Keystone pipeline. Despite a flurry of legislative activity earlier this year, the fate of the Keystone pipeline that would expand Canadian oil distribution to the U.S. remains uncertain.

The State Department approved the transfer of ownership of the Express Pipeline to Spectra Energy Partners. This pipeline runs from Hardisty, Alberta, Canada to Casper, Wyoming. The permit allows Spectra to connect, operate, and maintain the existing pipeline facilities at the U.S.-Canada border to transport crude oil.

The State Department also approved the transfer of ownership of a pipeline running from El Paso, Texas to the Rio Grand River on the U.S.-Mexico border to Magellan Pipeline Company. The permit allows Magellan to connect, operate, and maintain existing pipeline facilities at the U.S.-Mexico border to transport liquid petroleum products.

In addition to the Keystone pipeline controversy, cross-border pipelines in general are the subject of significant public and regulatory scrutiny. Another recent example is the Alberta Clipper pipeline from Hardisty, Alberta, Canada to Superior, Wisconsin, where the State Department was accused of accelerating pipeline approval from Enbridge Energy—facts now at issue in litigation filed by a coalition of environmental groups opposed to the pipeline.

Corporate Environmental Lawyer celebrates five years of blogging with a new design!

In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:

  1. Mobile and tablet responsive technology
  2. A trending-categories cloud list
  3. Easy-to-use social sharing buttons
  4. Streamlined navigation menus

  5. Access to all five years of posts

In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics.  We look forward to continuing to provide content covering the issues that are driving changes in environmental law.

EPA Revises Its Regulatory Agenda, A Flurry of Activity Expected in the Next Few Months

Bandza_Alexander_COLORBy Alexander J. Bandza


Last week, the EPA-specific listing on the website of the Office of Information and Regulatory Affairs was updated with timelines on the EPA’s regulatory efforts.   Of potential interest, in chronological order of expected release, are the following rules:

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New Jersey Assembly Unanimously Passes Bill Broadly Allocating Liability and Damages for Hazardous Substance Discharges from Offshore Drilling Platforms


Bandza_Alexander_COLORBy Alexander J. Bandza


Last week, the New Jersey Assembly unanimously passed a bill, A4258, which is notably broad in its language on allocating liability and damages for releases of hazardous substances from offshore drilling platforms.  The bill would supplement N.J.S.A. 58:10-23.11, the New Jersey Spill Compensation and Control Act, which defines hazardous substances to include petroleum and petroleum products.  The bill sets out that potentially liable parties include “[a]ny person who discharges a hazardous substance from a drilling platform” or “is in any way responsible for a hazardous substance that is discharged from a drilling platform.”  (Emphasis added.)  This discharge need not occur within the jurisdiction of New Jersey so long as the hazardous substance eventually “enters the waters of the State.”  Persons that meet the above two conditions are “strictly, jointly and severally [liable], without regard to fault,” for:

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