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February 11, 2014 EPA Signs Final E-Manifest Rule

Grayson_Lynn_COLORBy:  E. Lynn Grayson


EPA signed a final rule authorizing the use of electronic manifests for hazardous waste transportation as an alternative to paper manifests traditionally relied upon. The final rule will authorize the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (e-manifest). The modification will provide waste handlers with the option to complete, sign, transmit, and store manifest information electronically in the electronic system. States that currently receive and collect paper manifest copies will receive copies of manifest data electronically from the system.

On October 5, 2012, President Obama signed into law, the Hazardous Waste Electronic Manifest Establishment Act which authorizes the EPA to implement a national electronic manifest system. Commonly referred to as "e-manifest", this national system is envisioned to be implemented by the EPA in partnership with industry and states.

Milestones for EPA Actions:

  • The Act requires that the e-Manifest Information Technology (IT) system must be up and running within three years after the Act is passed
  • The EPA must issue regulation authorizing use of electronic manifests within one year after the Act is passed
  • The EPA must establish a System Advisory Board within three years after the Act is passed in order to advise the EPA on system performance and user fees

Scope provisions:

  • e-Manifest extends to all federally- and state-regulated wastes requiring manifests
  • Allows that the use of electronic manifests is optional for users, and authorizes centralized collection of data from electronic and paper manifests

Fee and spending provisions:

  • Authorizes the EPA to collect reasonable user fees for all system related costs including development and maintenance

The rule is intended to streamline the uniform manifest system making it more cost-effective and user friendly. A pre-publication version of the final rule is available on the EPA website via

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort

January 16, 2014 EU Evaluates Banning Flame Retardants and Phthalates In Electronic And Electrical Goods

Siros_Steven_COLORBy:  Steven M. Siros


In light of a recent study conducted on behalf of the European Commission (which is the executive body of the European Union (EU) responsible for proposing legislation), the Commission is expected to ban certain phthalates and flame retardants in electronic and electrical goods. More specifically, the Commission is expected to add a flame retardant (hexabromocyclododecane) and three phthalates (bis (2-ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), and dibutyl phthalate (DBP)) to Annex II of the Restriction of Hazardous Substances Directive (RoHS). Under RoHS, Annex II chemicals are banned in electronic and electrical goods in excess of .1% weight.

 The addition of these specific chemicals to the RoHS Annex II would most directly impact importers of electronic and electrical equipment into the EU as EU's REACH program has already banned the use of these chemicals in the EU after February 21, 2015 (unless specific use authorizations are obtained). As a general matter (subject to several exceptions), importers of electronic and electrical goods into the EU are not currently subject to REACH. However, compliance with RoHS is mandatory for all products produced and/or imported in the EU.

In reality, however, manufacturers of any product that contains phthalates would be well advised to take steps to ensure that the phthalate content in those products is below the .1% weight threshold.  Numerous regulatory bodies have already banned phthalates in excess of the .1% weight threshold.  For example, California's Prop. 65 regulations require notification where the phthalate content exceeds .1% in products sold in California.


November 1, 2013 Institute for Legal Reform Issues Report Assessing Litigation Trends Affecting the Business Community

Essig_Genevieve_COLORBy: Genevieve Essig


In October, the U.S. Chamber Institute for Legal Reform issued a report, The New Lawsuit Ecosystem: Trends, Targets and Players, presenting an analysis of the “lawsuit ‘ecosystem’ for the areas of litigation abuse of most concern to the business community” and the direction in which the associated litigation trends are heading.  The report covers a wide variety of subject matters, including class action litigation, mass tort litigation, asbestos litigation, securities and M&A litigation, False Claims Act litigation, and wage and hour litigation.  The following observations from the report may be of particular interest to environmental attorneys:

  • There has been a rise in lung cancer claims in asbestos litigation
  • A few areas of mass tort litigation are waning, including climate change litigation and welding fume litigation (alleging that the manganese in welding fumes causes neurological injury)
  • There has been a renewed interest in “fear of disease” claims / claims seeking medical monitoring for exposure to potentially harmful substances

The authors of the report note that lung cancer cases are “ideal” for plaintiffs’ lawyers because the life-threatening nature of the disease will support a trial preference regardless of the etiology of the disease. Further, despite causation challenges, the claims can involve significant damages and settlement value.  The authors report that in Madison County, Illinois, lung cancer claims exceeded mesothelioma claims for the first time in 2012 (though the surge apparently subsided as of June 2013).  A rise in such claims has been observed in other jurisdictions as well.

As for medical monitoring claims, the authors recount opinions of the U.S. Supreme Court and a number of state supreme courts in the late 1990s and early 2000s resisting medical monitoring claims in recognition of the possibility that permitting recovery for medical monitoring could divert resources from individuals who actually become sick or may become sick to those who are not sick and may never become sick as a result of their alleged exposure, but observe that the holdings in a handful of more recent cases indicate that “the pendulum has started to swing back toward permitting medical monitoring claims, in some circumstances.” 

CATEGORIES: Climate Change, Toxic Tort

October 31, 2013 EPA Ordered To Move Forward With Coal Ash Waste Rule

Torrence_Allison_COLORBy Allison A. Torrence


On October 29, 2013, a federal district court judge ordered EPA to submit to the court within 60 days a plan and schedule for finalizing coal ash rules under the Resource Conservation and Recovery Act (RCRA). Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. Oct. 29, 2013). Coal ash, also called coal combustion residuals (CCRs), is created as a byproduct of coal combustion at power plants. Coal ash is generally disposed of in either liquid form in surface impoundments or in solid form at landfills and is largely exempt from hazardous waste and solid waste regulations under RCRA.

Recent interest in regulating coal ash waste was prompted by the December 2008 spill at a coal ash storage facility for the Tennessee Valley Authority’s Kingston Fossil Plant. An estimated 1 billion gallons of coal ash slurry was released from the Kingston facility after a retaining wall in the surface impoundment failed. In response to the coal ash spill, in June 2010, EPA proposed to regulate coal ash to address the risks from the disposal of coal ash waste. The 2010 proposed rules provided two options for regulating coal ash: (1) regulate coal ash as a special waste under RCRA’s hazardous waste regulations; or (2) regulate coal ash under RCRA’s non-hazardous solid waste regulations. EPA has received approximately 450,000 comments on these proposed rules and has published additional data on the proposed rules, but has yet to finalize any regulations. Under the solid waste proposed rule, current surface impoundments would have to be retrofitted with new composite liners or cease operations within five years. Existing landfills would not need new liners, but would require groundwater monitoring. In the event that EPA were to elect to regulate coal ash as a special waste, coal ash impoundments or landfills would need RCRA permits and surface impoundments would effectively be phased out of use due to land disposal restrictions. Although EPA has indicated that the second option - regulating coal ash as a non-hazardous solid waste - is the most likely outcome, it has yet to issue final regulations.

After almost four years of inaction on the regulatory front, several environmental organizations sued EPA under the citizens’ provisions of RCRA for failure to finalize its RCRA regulations for coal ash. The environmental groups argued that under the statutory language in RCRA, EPA is required to review and, if necessary, revise hazardous waste and solid waste regulations every three years. Thus, they argued that EPA was required to review its decision not to regulate coal ash as a hazardous waste or solid waste at least every three years, which it has failed to do. In his October 29th Memorandum Opinion, District Court Judge Walton ruled in favor of EPA on a number of counts, holding that coal ash is exempted from RCRA’s general review and revision process for hazardous wastes. Nevertheless, Judge Walton ruled in favor of the environmental groups on the issue of non-hazardous solid waste regulations. Judge Walton held that EPA has a non-discretionary duty to review and, if necessary, revise solid waste regulations concerning coal ash at least every three years. Judge Walton declined to provide a set deadline for EPA to issue its review or regulations. Instead, he ordered EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations under RCRA. EPA must submit this proposed schedule within 60 days (by December 30, 2013), at which point the environmental groups will have an opportunity to file a response to EPA’s proposed schedule.

CATEGORIES: Cercla, Greenhouse Gas, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA, Water

October 25, 2013 OSHA Issues New “Recommended” Permissible Exposure Levels For Chemicals In The Workplace

Siros_Steven_COLORBy Steven M. Siros


In lieu of formal notice and comment rulemaking, the Occupational Safety and Health Administration ("OSHA") recently issued new "voluntary" standards for workplace chemical exposure. These new voluntary exposure limits can be found on OSHA's website in a tabular format, allowing for side-by-side comparisons of OSHA's existing permissible exposure limits ("PELs") with these new, voluntary exposure levels recommended by organizations such as the National Institute for Occupational Safety and Health and the American Conference of Governmental Industrial Hygienists. 

According to David Michaels, OSHA's existing chemical standards are not adequately protective and he advises employers to utilize these recommended exposure limits "since simply complying with OSHA's antiquated [PELs] will not guarantee that workers are safe." Of course, from a regulatory perspective, OSHA can only enforce its existing PELs. From a toxic tort exposure perspective, however, plaintiffs' counsel are sure to argue that these "voluntary" standards establish the appropriate exposure threshold and that any exposure above these voluntary standards is harmful (and in turn, compensible). For many chemicals, the difference between the enforceable PEL and the voluntary limit is substantial. For example, the OSHA PEL for tetrachloroethylene is 100 ppm and the new voluntary standard is 25 ppm.

Please click here to see a copy of the OSHA news release on this topic.


October 18, 2013 Stay Indoors--Outdoor Air (Pollution) Added To List Of Cancer-Causing Substances

Siros_Steven_COLORBy Steven M. Siros


The World Health Organization has now classified outdoor air pollution as a human carcinogen. According to a press release from the International Agency for Research on Cancer ("IARC"), based on its review of available scientific literature, there is now sufficient evidence that exposure to outdoor air pollution causes lung cancer. As a result, IARC has classified outdoor air pollution as "carcinogenic to humans". In addition, IARC noted that there was also a positive association between outdoor air pollution and an increased risk of bladder cancer. According to IARC's Director, "[c]lassifying outdoor air pollution as carcinogenic to humans is an important step.  There are effective ways to reduce air pollution and, given the scale of the exposure affecting people worldwide, this report should send a strong signal to the international community to take action without further delay." Unfortunately, IARC's press release provides little guidance on how to avoid exposure to what now is a pervasive carcinogenic substance; we will have to stay tuned for more information from the World Health Organization on this important issue.

CATEGORIES: Air, Toxic Tort

October 18, 2013 Alex Bandza: 2013 Stephen E. Hermann Environmental Writing Award

Grayson_Lynn_COLORBy E. Lynn Grayson


Incoming associate Alexander Bandza has been selected by the American College of Environmental Lawyers to receive the prestigious Stephen E. Hermann Environmental Writing Award in 2013. Alex's law school note "Epidemiological Study Reanalyses and Daubert: A Modest Proposal to Level the Playing Field in Toxic Tort Litigation" was awarded first place in this legal writing competition. The note was published in UC Berkeley School of Law's Ecology Law Quarterly.

Next month, Alex will be joining Jenner & Block's Environmental and Workplace Health and Safety Practice Group.

Congratulations, Alex!

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort

October 9, 2013 Governor Approves Bill That Could Curb Some Proposition 65 Claims

Siros_Steven_COLORBy Steven M. Siros


California Governor Jerry Brown recently signed into law a measure that may curb what many believe to be meritless Proposition 65 claims against certain businesses in California. The current modus operandi for the Proposition 65 plaintiffs' bar in California is to hire people to visit restaurants, bars, and other businesses in the hope that the requisite Proposition 65 warnings have not been posted. A 60-day notice letter is then sent out and in most cases, the targeted business quickly settles the claim with plaintiffs' counsel pocketing a significant percentage of the settlement as "attorneys' fees".

Under the new law, businesses that are targeted by a Proposition 65 plaintiff for allegedly failing to post the requisite warning regarding exposure to alcoholic beverages, tobacco smoke, engine exhaust, and potentially harmful chemicals formed during the cooking process would have 14 days to post the requisite notice and pay a $500 fine. Assuming that the notice is posted within this 14-day period and the fine paid, no further action could be taken by a private plaintiff (it should be noted that this new law would not prohibit the Attorney General from bringing a separate action for violation of the Proposition 65 statute).

Since it will no longer be profitable for the Proposition 65 plaintiffs' bar to bring these types of claims, the expectation is that California restaurants and other similar businesses will no longer be targeted simply for having served a hamburger or operating a parking lot without having posted a warning.  Of course, that probably just means that the plaintiffs' bar will focus more attention on other consumer products and businesses would be well served to verify that the products that they sell and distribute in California are compliant with Proposition 65.


October 4, 2013 FAA Seeks To Penalize Model Airplane (aka "Drone") Pilot

Siros_Steven_COLORBy Steven M. Siros


In what appears to be a case of first impression, a drone operator that had been hired to take aerial photographs for an advertising agency was assessed a civil penalty of $10,000 for operating an "Unmanned Aircraft System" ("UAS") in a careless or reckless manner in violation of Federal Aviation Regulations. According to pleadings filed by the drone operator, the "Unmanned Aircraft System" in question was a five-pound radio-controlled Styrofoam model airplane that was mounted with a small camera.  In its complaint, the Federal Aviation Administration ("FAA") alleged that this model airplane was being operated in a reckless manner  and being flown at low altitudes near buildings and public streets. 

Although the FAA has yet to formally promulgate regulations that would govern UAS operations, the FAA apparently was relying on a 2007 policy statement that requires that UAS that are operated for "commercial" purposes require a "certificate of airworthiness" and be subject to Federal Aviation Regulations. However, the FAA's 2007 policy statement was never formally promulgated as a regulation, according to a motion to dismiss that was filed by the drone operator.

As the private and commercial uses of UAS increase, it will likely only be a matter of time before the FAA promulgates regulations that govern these activities.  Since that has not yet occurred, however, it will be interesting to see if the drone operator is successful in getting the civil penalty dismissed. Here are links to the FAA Administrator's Order of Assessment and the drone operator's Motion to Dismiss

CATEGORIES: Sustainability, Toxic Tort

September 20, 2013 Will Phthalates Go The Way of BPA?

Siros_Steven_COLORBy Steven M. Siros


Recent actions taken by retailer Walmart may have sounded the death knell for phthalates, especially with respect to personal care products.  Phthalates are a group of chemicals that are typically used to soften and increase the flexibility of plastics and vinyl. In chemical mixtures, phthalates can also carry other chemicals and are often found in fragrances and other consumer products. Certain categories of phthalates have been found to have caused adverse reproductive effects on laboratory animals, albeit at concentrations many orders of magnitude higher than typically found in consumer products. Phthalates are already subject to extensive regulation in both the United States and the European Union. For example, phthalates are on the list of California Proposition 65 chemicals that require warnings if sold in California and are subject to use prohibitions under the Consumer Product Safety Improvement Act in children's toys and certain child care articles. 

In September 2013, Walmart released its Policy on Sustainable Chemistry in Consumables which will require disclosure of ingredients contained in household cleaning, personal care, beauty and cosmetic products by January 2015. Walmart also identified a list of ten "high priority chemicals" which it targeted for continuous reduction, restriction and elimination. Although Walmart did not identify which specific chemicals are on its list, Procter & Gamble's and Johnson & Johnson's recent announcements that they would be eliminating phthalates from their beauty and personal care product lines would seem to suggest that phthalates made Walmart's list. 

Like BPA several years ago, phthalates are one of several groups of chemicals that have been recently targeted by various consumer activists groups. These groups have been very successful in convincing major retailers to stop selling and consumers to stop buying products containing certain chemicals such as BPA and phthalates. In light of these efforts, it is likely that even in the absence of action by U.S. EPA and other regulatory entities, phthalates and other similarly situated chemicals will be phased out of personal care products in the near future. 


September 3, 2013 New Preliminary Risk Data Available For Explosives

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA is announcing a public meeting to provide an opportunity for public input and discussion on preliminary materials for Integrated Risk Information System (IRIS) chemicals prior to the development of the assessments for the following chemicals:

  • ethyl tert-butyl ether (ETBE)
  • tert-butyl alcohol (tert-butanol)
  • hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX)

New materials recently posted provide EPA's strategy for identifying relevant scientific literature for its planned IRIS assessment of RDX, preliminary health effects identified, and dose levels studies causing some or no effects. The documents are among information on five chemicals EPA released prior to its first public bimonthly IRIS meeting scheduled Oct. 23-24.

The chemicals and associated materials under discussion include:

ethyl tert-butyl ether (ETBE) – Chemical Manager: Keith Salazar

  • Preliminary draft literature search and associated strategy and evidence tables for ETBE 
  • All references sorted by author 
  • Systematic review of the ETBE literature
  •  Opportunity to provide comments on these materials in the ETBE docket

tert-butyl alcohol (tert-butanol) – Chemical Manager: Janice Lee

  • Preliminary draft literature search and associated strategy and evidence tables for tert-butanol
  • All references sorted by author (tert-Butanol)
  • Systematic review of the tert-Butanol literature
  • Opportunity to provide comments on these materials in the t-butanol docket

hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX) – Chemical Manager: Louis D'Amico

  • Preliminary draft literature search and associated strategy and evidence tables for RDX
  • All references sorted by author (RDX)
  • Systematic review of the RDX literature 
  • Opportunity to provide comments on these materials in the RDX docket 

More information about newly posted data and upcoming meeting is available at

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort

August 14, 2013 Environmental Group Ordered To Pay Disney’s Attorneys’ Fees For Filing Baseless Reverse False Claims Act Lawsuit

Siros_Steven_COLORBy Steven M. Siros


In the latest saga of what has become a long running dispute between plaintiff RBC Four Co. LLC ("RBC") and the Walt Disney Company ("Disney"), a federal district court judge dismissed RBC's reverse False Claims Act allegations and ordered RBC to reimburse Disney for its attorneys' fees incurred in defending what the court determined to be baseless claims. According to the RBC complaint, since at least 1991, Disney has dumped dangerous chemicals into the waters surrounding its Burbank, California studios. In 1991, U.S. EPA sent Disney an information request seeking information relating to contamination at a Superfund Site in the San Fernando Valley and Disney was alleged to have responded to U.S. EPA with misleading statements and/or documents concerning its handling of hazardous materials at the Burbank site.  In its complaint, RBC argues that Disney's misleading response to U.S. EPA's information request and other information it provided to regulators over the past decade constituted efforts by Disney to avoid payment of obligations owed to the Government pursuant to various environmental laws and regulations, including the Clean Water Act and CERCLA.

The court found RBC's complaint to be devoid of any facts showing a particular legal obligation that Disney avoided by making allegedly false representations to the Government. In support of its decision to dismiss RBC's complaint without leave to replead, the court noted that the type of "obligations" that might give rise to a reverse False Claims Act claim do not extend to potential liabilities under an environmental statute as alleged by plaintiffs.

In ruling on Disney's request for sanctions, the court found that RBC's claims were "legally baseless from an objective perspective and cannot have been the product of competent inquiry." The court further noted that this was the fourth qui tam action that RBC (or one of its affiliates) had brought against Disney and is one of 12 actions that had been filed against Disney since 2007. Each of these actions has arisen out of the same or similar facts and several of those claims had been dismissed with prejudice. Although the court declined to designate RBC as a "vexatious litigant" as requested by Disney, the court noted that the record reflected that RBC had engaged in a pattern of duplicative and excessive litigation against Disney, suggesting that such a designation might be appropriate if future claims were filed. The court also ordered RBC to pay Disney's attorneys' fees and costs in defending the litigation. Please click here to see a copy of the court's order.

CATEGORIES: Cercla, RCRA, Toxic Tort, TSCA, Water

August 6, 2013 President Obama Issues Executive Order On Chemical Safety

Torrence_Allison_COLORBy Allison A. Torrence


On August 1, 2013, President Obama issued an Executive Order titled "Improving Chemical Facility Safety and Security." The Executive Order is in response to recent tragedies involving chemical accidents at U.S. facilities, most recently the explosion at a fertilizer plant in West, Texas. The Executive Order establishes the Chemical Facility Safety and Security Working Group, co-chaired by the Secretary of Homeland Security, the Administrator of the EPA, and the Secretary of Labor. The Working Group is tasked with the following goals:

  • Improving Operational Coordination with State, Local, and Tribal Partners.
  • Enhanced Federal Coordination.
  • Enhanced Information Collection and Sharing.
  • Policy, Regulation and Standards Modernization.
  • Identification of Best Practices.

Notable requirements in the Executive Order include:

  • Assessing the feasibility of sharing data related to the storage of explosive materials and chemicals that are regulated under the Chemical Facility Anti-Terrorism (CFATS) standard with State, Tribal and local emergency responders.
  • Developing recommendations on ways to identify chemical facilities that are not in compliance with all federal chemical safety requirements.
  • Developing a list of potential regulatory and legislative proposals to improve the safe, secure storage, handling and sale of ammonium nitrate (the chemical at issue in the West, Texas explosion).
  • Reviewing the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) to determine if RMP or PSM should be expanded to address additional substances.
  • Identifying any chemicals that should be added to the CFATS Chemicals of Interest list.

The Working Group is required to provide a status report to the President by April 28, 2014.

Executive Order, "Improving Chemical Facility Safety and Security" is available at:

CATEGORIES: FIFRA, Sustainability, Toxic Tort, TSCA

August 6, 2013 NIOSH Study Finds That Workers’ Silica Exposure At Fracking Sites Exceeds Occupational Health Criteria

Schriftman_Seth_COLORBy Seth J. Schriftman


A groundbreaking recent study authored by the National Institute for Occupational Safety and Health (NIOSH), “Occupational Exposures to Respirable Crystalline Silica During Hydraulic Fracturing,” discusses the harm related to an employee’s exposure to respirable crystalline silica during hydraulic fracturing (“fracking”). The study also includes recommendations for companies which utilize fracking in their operations.

Fracking involves the high pressure injection of large volumes of water or sand, and smaller amounts of well treatment chemicals, into a gas or oil well to fracture shale or other rock formations and release the hydrocarbons trapped inside.  Crystalline silica (also known as “frac sand”) is often used as a proppant to hold open cracks and fissures created by the hydraulic pressure.  The mechanical handling of frac sand creates respirable crystalline silica dust, which is a potential exposure hazard for workers.  Specifically, frac sand is moved along transfer belts and by trucks for its use in the fracking process.  This process often involves hundreds of thousands of pounds of frac sand, which creates airborne silica dust.  Occupational exposure to respirable crystalline silica is already an established hazard in many industries, including those which involve mining, sandblasting, foundry work, agriculture, and construction, but  not yet for oil and gas extraction work.

According to the authors, this new NIOSH study is the “first [known] systematic study of work crew exposures to crystalline silica during hydraulic fracturing.” The study cites occupational health knowledge gaps relating to fracking, including:

1) understanding which job titles have risks of chemical exposures;

2) quantifying the magnitude of exposure risks for both chemicals and minerals; and

3) understanding the relative contribution of all likely routes of exposure, including inhalation, dermal exposures, and ingestion. 

Further, in noting the seriousness of the health impacts of crystalline silica, the study observes that the inhalation of respirable crystalline silica can cause health issues such as silicosis, lung cancer, autoimmune disorders, kidney disease, and an increased risk of tuberculosis. 

NIOSH initiated the study to assess chemical exposures to oil and gas extraction workers in 2010.  Approximately 435,000 workers were employed in the U.S. oil and gas extraction industry in 2010, nearly half of which were employed by well servicing companies, including companies that conducted fracking.  To date, exposure assessments for respirable crystalline silica during fracking efforts have been the predominant focus of the NIOSH field effort. 

In conducting the study, researchers at NIOSH collected personal breathing zone samples at well sites in five states (Colorado, Texas, North Dakota, Arkansas, and Pennsylvania) from workers with different job titles between August 2010 and September 2011, to evaluate worker exposure. At all sites, there were respirable silica samples which exceeded the occupational health criteria (e.g., The Occupational Safety and Health Administration’s (OSHA’s) personal exposure limit, the NIOSH recommended exposure limit, and/or the American Conference of Governmental Industrial Hygienists threshold limit value). In some instances, these crystalline silica exposures exceeded ten or more times the applicable occupational health criteria. Based on these evaluations, an occupational health hazard was determined to exist. In addition, seven points of dust generation were identified, including sand handling machinery and the dust generated from a work site itself.

According to the study, companies are just starting to implement controls to limit silica-containing dust generation during fracking due to the relatively recent understanding of the magnitude and hazards of exposure risks.   Recommendations for companies that conduct hydraulic fracturing using frac sand include product substitution when feasible, engineering controls or modifications to sand handling machinery, administrative controls, and the increased use of proper personal protective equipment.

The study, published in the Journal of Occupational and Environmental Hygiene, is available here.


July 24, 2013 More Progress From DHS On Security Plan Approvals

Grayson_Lynn_COLORBy E. Lynn Grayson


As previously reported here on July 2, 2013, the Department of Homeland Security (DHS) continues to make progress in managing its Chemical Facility Anti-Terrorism Standards (CFATS) program. The CFATS program identifies and regulates high-risk chemical facilities to ensure they have security measures in place to reduce the risks associated with these chemicals.

With statistics through July 15, 2013, a recent June 2013 DHS fact sheet reports the following updates on the CFATS program:

  • More than 44,000 preliminary assessments were reviewed by DHS from facilities with chemicals of interest
  • 4,298 facilities are currently covered by CFATS
  • More than 3,000 facilities voluntarily removed, reduced, or modified their holdings of chemicals of interest
  • 1264 visits to assist facilities with compliance
  • 536 Security Plans authorized
  • 166 Security Plans approved following an on-site inspection

CFATS is the first DHS regulatory program focused specifically on security at high-risk chemical facilities. Federal law authorizes DHS to regulate security at chemical facilities that it determines are high-risk. DHS determines a facility's initial risk profile by requiring facilities in possession of specific quantities of specific chemicals of interest to complete a preliminary risk assessment. Facilities initially determined by DHS to be high-risk must complete and submit a Security Vulnerability Assessment. If DHS makes a final determination that a facility is high-risk, the facility must submit a Site Security Plan for DHS approval or an Alternative Security Program that includes security measures to meet applicable risk-based performance standards established by DHS.

It is interesting to note that the CFATS program is not 100% focused on chemical manufacturers. In fact, the majority of the first 100 approved security plans (26%) were at semi-conductor manufacturing sites. Approvals also have been completed for chemical and non-chemical manufacturing facilities, distribution warehouses, industrial gas plants, research and development facilities, waste management facilities, food processing plants, pest control facilities, and one university.

For more information about the CFATS program, visit or call 1-866-323-2957.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, TSCA