On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
Yesterday evening, the Department of Health and Human Services designated Dr. Nicole Lurie, an agency assistant secretary, to lead the federal government’s response to the elevated lead levels allegedly found in the drinking water being provided by the City of Flint, Michigan, to its residents. This designation came on the heels of a meeting between Flint’s mayor and Valerie Jarrett in Washington, D.C. The federal government has elected to play a significant role in addressing this crisis, with President Obama signing an emergency declaration on Saturday which provided Flint with access to up to $5 million in federal funds. The crisis began in 2014 when Flint stopped getting water from Detroit and began obtaining its drinking water from the Flint River in an effort to lower costs.
The appointment of a federal “czar” to coordinate a federal response to contamination of a local drinking water system is somewhat unusual. However, it is likely that the political nature of this issue, coupled with the fact that U.S. EPA may have been aware as far back as April 2015 that Flint’s water supply was at risk for lead contamination, likely contributed to this decision. For those that watched the Democratic presidential debate on Sunday, the Flint water issues were discussed by the candidates, with blame not surprisingly being directed at Republican Governor Rick Snyder.
Although Flint has stopped obtaining water from the Flint River, the risk has not necessarily been alleviated due to the damage that the corrosive water likely caused the City's water distribution system, including pipes leading to individual residences. As such, there is a continuing effort to provide residents with bottled water and water filters for their homes while a more long-term solution is investigated. Several class-action lawsuits have already been filed and more are likely as this crisis continues to evolve. In addition, multiple investigations have been launched by both the Michigan State’s Attorney and the U.S. Attorney’s Office for the Eastern District of Michigan.
In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees. Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations. In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban. In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed. U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions. In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016.
These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA). Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology
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
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.
Today 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.
A 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.
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.
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.