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May 2012

OSHA Issues Directive for Approach to Deceased Workers’ Families

Sigel_Gabrielle_COLORBy Gabrielle Sigel


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.

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U.S. Court of Appeals Mandates Decision on Act of War Defense to WTC CERCLA Claims

Sigel_Gabrielle_COLORBy Gabrielle Sigel


The U.S. Court of Appeals for the Second Circuit has issued a mandate to the U.S. District Court for the Southern District of New York, requiring the lower court to determine whether contamination from the collapse of the World Trade Center buildings are subject to the "act of war" affirmative defense from liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In re Sept. 11th Litigation: Cedar & Washington Assoc. LLC v. Port Authority of New York and New Jersey, No. 10-CV-9197 (U.S. Dist. Ct. S.D. N.Y. May 23, 2012).

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OSHRC Clarifies Who Is Responsible Executive for Injury Recording Purposes

Sigel_Gabrielle_COLORBy Gabrielle Sigel


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.

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100 Hour CAA Exemption For Backup Generators Used For Demand Response Programs

Siros_Steven_COLORBy Steven M. Siros


On May 22, 2012, U.S. EPA issued a proposed rule, that among other things, would allow backup stationary electricity-generating engines to operate for up to 100 hours during demand response emergency and peak-use periods without having to comply with emissions limitations applicable to non-emergency engines. The provision governing operating hours is part of a series of amendments to the NESHAP ZZZZ standards governing reciprocating internal combustion engines. Under the proposed rule, backup generators would be able to be operated for up to 100 hours per year for the following purposes:  (1) monitoring and testing; (2) demand response for Energy Emergency Alert Level 2 situations; or (3) when there is at least a five percent or more change in voltage. Through 2017, for engines located at sites that are sources for hazardous air pollutants, 50 of the 100 allowable hours could be used for non-emergency purposes and to meet peak power demand.  U.S. EPA will accept comments on the proposed rule for the next 45 days.  Please click here to go the Federal Register notice.

Corporate Purchaser Not Liable to the Government for CERCLA Liability; Former Operator Must Begin Cleanup

Sigel_Gabrielle_COLORBy Gabrielle Sigel


In long-running litigation regarding one of the costliest Superfund cleanups in the country, the U.S. District Court for the Eastern District of Wisconsin reversed a decision it reached just 5 months earlier and found that Appleton Papers Inc. ("API") was not liable to the federal government for performance of a cleanup. U.S. v. NCR Corp. And Appleton Papers Inc., No. 10-6-910 (U.S. Dist. Ct. E.D. Wis. Apr. 10, 2012). The cleanup involves PCBs discharged into the Fox River for decades before CERCLA was enacted, by a division of NCR Corp. then called the Appleton Papers Division.

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MIT Climate Change Report Addresses Impacts To Cities

Grayson_Lynn_COLORBy E. Lynn Grayson


Cities around the world are increasingly aware of the need to prepare for greater variability in temperature, precipitation, and natural disasters expected to take place as a result of global climate change. To gain insight into the status of adaptation planning globally, approaches cities around the world are taking, and challenges they are encountering, a survey was sent to communities that are members of International Council for Local Environmental Initiatives (ICLEI) Local Governments for Sustainability. A total of 468 cities (44%) completed the 40-question survey, with the majority of respondents being from the U.S. since this is where ICLEI has the largest membership.

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Federal Court Finds CERCLA Insurance Case Filed 7 Years After Notice, Timely

Sigel_Gabrielle_COLORBy Gabrielle Sigel


In Wiseman Oil Co., Inc. v. TIG Ins. Co., the federal court refused to dismiss claims for breach of the insurer's duty to defend and duty of good faith in an insurance coverage action filed in 2011 seeking to recover for CERCLA claims brought in 1997 by the federal government. No. 2:11-CV-1011-JFC-LPL (U.S. Dist. Ct. W.D. Pa. May 22, 2012).

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New USGS Studies Show Effects Of Climate Change On Water Availability In 14 U.S. Local Basins

Grayson_Lynn_COLORBy E. Lynn Grayson


According to the USGS, climate change projections indicate an increase in temperature progressing through the 21st century, generally resulting in snowpack reductions, changes to timing of snowmelt, altered streamflows and reductions in soil moisture. These factors will affect water management, agriculture, recreation, hazard mitigation and ecosystems throughout the U.S. New studies show, however, that climate change will affect specific water basins in the U.S. differently based upon the particular hydrologic and geologic conditions present.

To date, the USGS has applied models to fourteen basins:

  • Sprague River Basin, Oregon
  • Sagehen Creek Basin, California
  • Feather River Basin, California
  • Naches River Basin, Washington
  • Yampa River Basin, Colorado
  • East River Basin, Colorado
  • Black Earth Creek Basin, Wisconsin
  • Flint River Basin, Georgia
  • Pomperaug River Watershed, Connecticut
  • Clear Creek Basin, Iowa
  • Cathance Stream Basin, Maine
  • Trout Lake Basin, Wisconsin
  • Starkweather Coulee Basin, North Dakota
  • South Fork of the Flathead River, Montana

"The advantage of these studies is that they demonstrate that there is not just one hydrological response to climate change: the predictions account for essential local factors that will govern the timing, severity, and type of impact, whether it be water shortage, drought, or flood," said USGS Director Marcia McNutt. "This is exactly the sort of information communities need to know now, because we are unlikely to see a 'water-as-usual' future."

More information about the USGS climate change studies conducted to date is available at

Federal Appellate Courts Limit OSHA Injury Recordkeeping Enforcement

Sigel_Gabrielle_COLORBy Gabrielle Sigel


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.

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Sustainability Remains A Challenge For U.S. Businesses

Grayson_Lynn_COLORBy E. Lynn Grayson


Two new reports recently released by EIRIS and CERES suggest that U.S. businesses are making progress on sustainability initiatives but may lag behind European companies. On May 1st, EIRIS released On Track for Rio+20: How are Global Companies Responding to Sustainability? On April 25th, Ceres released The Road to 2020: Corporate Progress on the Ceres Roadmap to Sustainability.

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U.S. EPA Releases 2012 IRIS Agenda

Siros_Steven_COLORBy Steven M. Siros


On May 7, 2012, U.S. EPA announced its 2012 Integrated Risk Information System ("IRIS") agenda which adds seven new chemicals to the IRIS program while withdrawing four chemicals from the program.  The new IRIS chemicals are chlorobenzene, decamethylcyclopentasiloxane, octamethylcyclotetrasiloxane, element mercury, methyl mercury, vanadium, and 1,2,3-trimethylbenzene.  The four withdrawn chemicals are alkylates, bisphenol A, mirex and refractory ceramic fibers.  There are now a total of 51 chemicals on the IRIS evaluation list.   U.S. EPA intends to have have initiated the assessment process for all 51 chemicals by fiscal 2014.  Click here to go to U.S. EPA's IRIS website.

DOE Identifies Possible Carbon Sequestration Storage Sites

Siros_Steven_COLORBy Steven M. Siros


On May 1, 2012, the Department of Energy released the North American Storage Atlas that maps the potential carbon dioxide storage capacity in North America. According to the Atlas, there is at least 500 years of geologic storage capacity for carbon dioxide in North America. In addition to identifying the locations with large carbon dioxide storage capacity, the Atlas also identifies the location of approximately 2,250 large stationary sources of carbon dioxide. The Atlas was developed by the Department of Energy, Natural Resources Canada and the Mexican Ministry of Energy.