Toxic Tort Feed

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:

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


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

Beach

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:

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


Minnesota House and Senate Each Pass Bills Banning The Sale and Manufacture of Products Containing Plastic Microbeads

Bandza_Alexander_COLORBy Alexander J. Bandza

 

"Microbeads" are synthetic microspheres widely used in cosmetics, skin care and personal care products, which are added as exfoliating agents.  Public interest groups have expressed concern that, because wastewater systems may be unable to filter microbeads from effluent released into public waterways, microbeads are entering the marine food chain.  This week, the Minnesota House and Senate each passed bills that would ban the manufacture and sale of products containing plastic microbeads. 

Both bills contain the same phased timeline:

  • Effective December 31, 2018, no one can sell personal care products containing synthetic plastic microbeads, but persons can continue selling over-the-counter drugs containing synthetic plastic microbeads.  However, that same day, no one can manufacture for sale over-the-counter drugs that contains synthetic plastic microbeads. 
  • Effective December 31, 2019, no one can sell over-the-counter drugs containing synthetic plastic microbeads.

Continue reading "Minnesota House and Senate Each Pass Bills Banning The Sale and Manufacture of Products Containing Plastic Microbeads" »


Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee

Siros_Steven_COLORBy Steven M. Siros

 

At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee.  Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.

Several of these key changes include:

Continue reading "Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee" »


Earth Day 2015: Beach Clean Up!

Grayson_Lynn_COLORBy E. Lynn Grayson Jenner & Block Earth Day 2015

 

On Friday, April 17th, Jenner & Block partnered with ComEd and Exelon to clean up the 12th Street beach at Northerly Island, in cooperation with the Alliance for the Great Lakes. Our group picked up over 85 pounds of broken glass, plastic beverage containers, food wrappers, cigarettes, and other miscellaneous trash and debris.

The Adopt-a-Beach program is the premier volunteer initiative for the Alliance for the Great Lakes. Teams remove litter and enter results into the Adopt-a-Beach online system to share with local beach authorities, educate the public, and improve the beaches and the health of the Great Lakes.

This picture shows our team after clean up efforts at 12th Street beach: 

Beach Day Cleanup

 

What will you do to celebrate Earth Day 2015? How about participating in the Adopt-a-Beach program?

To learn more about beach clean up opportunities or to schedule an event, visit http://www.greatlakes.org/.

A special thanks to our own Gay Sigel for organizing the Jenner & Block team. Thanks, Gay!


Criminal Asbestos Case Against Tennessee Salvage Company

Grayson_Lynn_COLORBy E. Lynn Grayson

 

U.S. District Judge Ronnie Greer sentenced five people to prison terms in federal court in Greeneville, Tennessee, this week for conspiring to commit Clean Air Act offenses in connection with the illegal removal and disposal of asbestos-containing materials at the former Liberty Fibers Plant in Hamblen County, Tennessee, the Justice Department announced. A&E Salvage had purchased the plant out of bankruptcy in order to salvage metals which remained in the plant after it ceased operations.

U.S. District Judge Greer sentenced Mark Sawyer, 55, of Morristown, Tennessee, a former manager of A&E Salvage, to the statutory maximum of five years in prison, to be followed by two years of supervised release. A&E Salvage manager Newell Lynn Smith, 59, of Miami, Florida, was sentenced to 37 months and two years of supervised release. A&E Salvage Manager Eric Gruenberg, 50, of Lebanon, Tennessee, received a 28-month sentence. Armida, 56, and Milto DiSanti, 54, of Miami, Florida, each received sentences of six months in prison, to be followed by six months of home confinement. The judge ordered all the defendants to pay restitution of more than $10.3 million, which will be returned to Environmental Protection Agency's (EPA) Superfund, which was used to clean up the plant site contamination.

According to court documents, all the defendants pleaded guilty to one criminal felony count for conspiring to violate the Clean Air Act's "work practice standards" salient to the proper stripping, bagging, removal and disposal of asbestos. According to the EPA, the individuals engaged in a multi-year scheme in which substantial amounts of regulated asbestos containing materials were removed the former Liberty Fibers plant without removing all asbestos prior to demolition and stripping, bagging, removing and disposing of such asbestos in illegal manners and without providing workers the necessary protective equipment. 

While managing asbestos in renovations and demolition projects can be challenging from an environmental and worker safety perspective, there clearly is a right way to do it and a wrong way. This case serves as a good reminder that taking shortcuts to save time and/or money has significant consequences.


California Seeks to Amend Proposition 65

Siros_Steven_COLORBy Steven M. Siros

 

On January 12, 2015, California's Office of Environmental Health Hazard Assessment ("OEHHA") proposed modifications to California's controversial Proposition 65 regulations. As any company that does business in California should know, Proposition 65 requires that a warning be provided for any product that contains one of hundreds of chemicals identified on the Proposition 65 list if there is any risk of a person being exposed to the listed chemical above a specified threshold. As a result, one is bombarded with Proposition 65 warnings from the point one disembarks onto the jet bridge until the time one arrives at his/her hotel and orders room service. OEHHA's proposed amendments to Proposition 65 appear to do little to ease the regulatory burden on companies that do business in California and/or minimize the burden of having to read all of the Proposition 65 warnings.

Overview of Proposed Changes

Warnings Must Now Identify Specific Chemicals: OEHHA has listed the following 12 chemicals which must be identified by name in any Proposition 65 warning: Acrylamide; Arsenic; Benzene; Cadmium; Carbon Monoxide; Chlorinated Tris; Formaldehyde; Hexavalent Chromium; Lead; Mercury; Methylene Chloride; and Phthalates.

Modified "Safe Harbor" Language: In order to avail oneself of the "safe harbor" warning, the warning must state that a product "can expose you" to a chemical or chemicals as opposed to the old "safe harbor" language that merely required that the warning state that the product "contains a chemical" that is known to the State to cause cancer or reproductive toxicity. In addition, for the following consumer products and services, specific warnings would be required: food and dietary supplements; alcoholic beverages; restaurant foods and non-alcoholic beverages; prescription drugs; dental care; furniture; diesel engine exhaust; parking facilities; amusement parks; designated smoking areas; petroleum products; service station and vehicle repair facilities.

New Lead Agency Website: The proposed regulations would also create a new section on the OEHHA website that would provide detailed information on products and exposures. OEHHA would also have the authority to request that businesses provide more detailed information, including estimated levels of exposure for listed chemicals.

Limited Responsibility for Retailers: Retailers would be relieved from Proposition 65 liability in most circumstances and the responsibility for providing the requisite Proposition 65 warning would fall squarely on the manufacturer, distributer, producer and/or packager.

OEHHA will be accepting written comments on the proposed changes until April 8, 2015. Not surprisingly, OEHHA's proposed regulations have not been warmly received by industry and it is expected that affected businesses and trade associations will be submitting comments in opposition to these proposed amendments. Please click here and here to see the text of the proposed amendments.


Environmental Groups Sue Over Applicability of TRI Data

Grayson_Lynn_COLOR

By E. Lynn Grayson

 

A recent lawsuit filed by 10 environmental groups against EPA alleges that EPCRA Section 313 Toxic Release Inventory (TRI) reporting should apply to oil and gas extraction companies. The environmental groups want TRI data regulatory requirements about releases to the environment to apply to oil drilling and exploration, hydraulic fracturing and natural gas processing activities.

According to the lawsuit recently filed in the U.S. District Court for the District of Columbia, EPA conducted rulemaking in the 1996-1997 time frame to consider adding other industry sectors to the list of facilities required to complete TRI reporting. At that time, EPA concluded that "oil and gas extraction classified in SIC code 13 is believed to conduct significant management activities that involve EPCRA Section 313 chemicals." EPA did not regulate the oil and gas industry following these earlier rulemaking efforts and for that reason, in 2012, environmental groups petitioned EPA to initiate rulemaking to add the oil and gas industry to TRI reporting requirements. The lawsuit alleges that EPA has not responded to that petition.

The environmental groups also allege that 127 tons of hazardous air pollutants are released by the oil and gas industry annually as well as other releases to the environment through discharges to surface waters, contamination of groundwater, underground injection and disposal in landfills. The lawsuit contends that regulation of the oil and gas industry is even more important today given the expansion of hydraulic fracturing and  horizontal drilling.

The environmental groups bringing the lawsuit include the: Environmental Integrity Project, Center for Effective Government, Chesapeake Climate Action Network, Citizens for Pennsylvania's Future, Clean Air Council, Delaware Riverkeeper Network, Natural Resources Defense Council, Responsible Drilling Alliance, and Texas Campaign for the Environment.

The oil and gas industry has concluded that TRI requirements never were intended to cover such facilities given the few employees typically involved in these operations and the multitude of other regulations applicable to the oil and gas industry. They also look to the 1996-1997 rulemaking effort but with a different recollection recalling that EPA confirmed at that time that "…This industry group is unique in that it may have related activities located over significantly large geographic areas. While together these activities may involve the management of significant quantities of EPCRA section 313 chemicals in addition to requiring significant employee involvement, taken at the smallest unit (individual well), neither the employee nor the chemical thresholds are likely to be met." Industry advocates have criticized these environmental groups, and particularly the Environmental Integrity Project, for attempting to manipulate data in order to oppose oil and gas development and seeking to impose additional regulatory requirements on an industry already heavily regulated.

The TRI program is an expansive regulatory initiative that mandates annual reporting obligations for certain facilities that fall within specific industry sectors, have 10 or more full time employees and manufacture or process 25,000 pounds of toxic chemicals subject to EPCRA Section 313 or otherwise use 10,000 pounds of these same chemicals in any given year. It is typically the case that  many of the oil and gas extraction operations would not meet these reporting thresholds as previously concluded by EPA. It appears, however, that this issue may be debated once again in the context of this case.


Texas Petrochemical Refinery Achieves Reasoned Victory Against Clean Air Act Citizen Suit

Bandza_Alexander_COLORBy  Alexander J. Bandza

 

ExxonMobil Corp. (Exxon) operates a refinery complex in Baytown, Texas, which is the largest petroleum and petrochemical complex in the U.S.  This Complex is governed by Title V operating permits issued by the Texas Commission on Environmental Quality (TCEQ).  In a 2010 citizen lawsuit, Environmental Texas Citizen Lobby Inc. and the Sierra Club alleged that, since 2005, equipment breakdowns, malfunctions and other non-routine incidents at the Complex caused illegal emissions of benzene, hydrogen chlorides, sulfur dioxide, hydrogen sulfide, carbon monoxide, and other substances.  Plaintiffs sought $641 million in damages.  On December 17, 2014, the District Court declined to impose any penalty, finding that the $1.4 million penalty and stipulation on future corrective action that Exxon previously agreed to with TCEQ was sufficient.

The case illustrates that a proactive EHS effort can pay real dividends in defending against citizen suits or enforcement actions, even if the number of violations are not in the company’s favor.  By way of background, all parties stipulated to Exxon’s indications of noncompliance, described as:

  •  241 “reportable emissions events” (i.e., those events “that release greater than a certain threshold quantity of pollutants” and are reported to TCEQ);
  • 3,735 “recordable emissions events” (i.e., those events “that release less than the aforementioned threshold quantity of pollutants” but are not reported to TCEQ); and
  • 901 Title V deviations.

TCEQ investigates all reportable emissions events.  After investigating, TCEQ assessed about $1.1 million in penalties against Exxon, and Harris County assessed about $0.3 million in penalties.  Furthermore, in 2012, TCEQ and Exxon entered into an agreed enforcement order, which stipulated penalties for future reportable emissions events and mandated four environmental improvement projects.  The projects would cost about $20 million.

Finding as a threshold matter that not all of Plaintiffs’ counts were actionable, the court declined to assess penalties for any of Plaintiffs’ remaining counts.  The Court was not persuaded that the number of events and deviations meant anything: “Despite good practices, it is not possible to operate any facility—especially one as complex as the Complex—in a manner that eliminates all Events and Deviations.”  Rather, the Court was persuaded that Exxon’s efforts to conduct an internal investigation and implement corrective actions after every discovery of a potential non-compliance event, which conformed to or exceeded industry practice, meant that Exxon “made good faith efforts to comply with the CAA.”  Furthermore, the Court was not persuaded that the violations were serious or lengthy in duration, nor was it persuaded that Exxon gained any economic benefit from non-compliance.  The Court entered judgment for Defendants.

The findings of fact are available here.


Governor Quinn Nixes Illinois Statute of Repose for Construction Asbestos Claims

Siros_Steven_COLORBy Steven M. Siros

 

In one of his last acts on the way out of office, Governor Quinn gave what some describe as a "big Christmas gift for the plaintiffs' bar" when he signed into law a bill that exempts construction-related asbestos personal injury claims from Illinois' ten-year statute of repose. SB 2221 was targeted at plaintiffs suffering from mesothelioma, a form of lung cancer with a long latency period. The bill will go into effect on June 1, 2015.

The bill was opposed by pro-business groups which argued that the bill only further reinforced Illinois' reputation for having an abusive legal climate. According to Illinois Lawsuit Abuse Watch, Madison County, Illinois is home to a quarter of the nation's asbestos litigation and this bill will certainly enable additional asbestos litigation. On the other hand, the bill's sponsors contend that the bill levels the playing field for those suffering from mesothelioma, a disease for which the symptoms may not present themselves for more than 20 years after exposure. Please click here to see a copy of the bill that was signed into law by Governor Quinn.