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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 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

July 17, 2013 CEC Approves New Operational Plan For 2013-2014

Grayson_Lynn_COLORBy E. Lynn Grayson


Last week the Council of the Commission for Environmental Cooperation (CEC) agreed to a new Operational Plan for 2013-2014 that focuses on collaborative actions in three strategic areas to maximize the overall impact: greening transportation, tackling climate change while improving air quality, and addressing waste in trade. Key developments included:

  • Participants at the town hall meeting on transportation and the environment, as well as the Joint Public Advisory Committee members during their round table on sustainable transportation yesterday, called for action to reduce the environmental impact from CEC member transportation networks that serve as vital links between our countries. To this end, we are announcing new initiatives to reduce emissions from trucks and buses, as well as from maritime transportation, especially at our borders and along our coasts.
  • We have also decided to bolster joint efforts to combat climate change as well as harmful air pollutants that threaten the health of our communities and our economies. These efforts are intended to focus on reducing carbon in the atmosphere through protecting coastal and forest ecosystems, avoiding black carbon emissions, collecting and disseminating reliable and comparable data on greenhouse gas emissions and other pollutants, and promoting green building construction.
  • The management of hazardous wastes in trade, including electronic wastes and spent lead-acid batteries (SLABs), requires particular attention from our governments. The CEC Secretariat's recent Hazardous Trade? report on SLABs made specific recommendations that have been considered in developing a North American response, through our enforcement and regulatory officials, to ensure that these wastes are properly managed to avoid harming the environment and the health of our communities.
  • Finally, as part of the new Operational Plan, CEC intends to continue the collaboration on key North American initiatives tracking pollutants, protecting shared ecosystems, reducing risks from chemicals, and coordinating environmental enforcement.

Meeting in Canada in 2014, CEC plans to celebrate the 20th anniversary of the North American Agreement on Environmental Cooperation, an agreement of historic significance borne out of trade agreement negotiations, which has enabled our three countries to work together on issues affecting our shared environment.

The CEC was established by Canada, Mexico and the United States to build cooperation among the NAFTA partners in implementing the North American Agreement on Environmental Cooperation (NAAEC). The CEC addresses environmental issues of continental concern according to the priorities and objectives set out in the Council Strategic Plan.

The Council, the CEC's governing body, is composed of the federal environment ministers (or equivalent) of the three countries, and meets at least once a year. The Council members are Canadian Environment Minister Peter Kent, Mexican Secretary for Environment and Natural Resources Juan José Guerra, and Acting US Environmental Protection Agency Administrator Bob Perciasepe. The Joint Public Advisory Committee (JPAC) is a 15-member, volunteer body that provides independent advice and public input to Council on any matter within the scope of NAAEC.

For more information on any of the topics reviewed by Council, visit

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA, Water

June 10, 2013 USGS Releases Water And Sediment Priority Constituents Monitoring Report

Grayson_Lynn_COLORBy E. Lynn Grayson


The USGS has released a new report, Prioritization of Constituents for National and Regional Scale Ambient Monitoring of Water and Sediment in the United States, that addresses the methodology used to prioritize constituents to be assessed. This effort was undertaken in preparation for the third decade of the National Water – Quality Assessment Program (NAWQA) including the time period 2013-2023.

Constituents were prioritized by the NAWQA National Target Analyte Strategy Work Group on the basis of available information on physical and chemical properties, observed or predicted environmental occurrence and fate, and observed or anticipated adverse effects on human health or aquatic life.

The constituents were ranked in three tiers:

  • Tier 1 with those having the highest priority on the basis of their likelihood of environmental occurrence in ambient water or sediment, or likelihood of effects on human health or aquatic life;
  • Tier 2 for constituents of intermediate priority on the basis of their lower likelihood of environmental occurrence or lower likelihood of effects on human health or aquatic life; and
  • Tier 3 of those with low or no priority for monitoring. 

Overall, 2,541 constituents were assessed with 1,081 constituents identified for ranking in Tier 1. Constituent groups included volatile organic compounds in water; pesticides in water or sediment; pharmaceuticals and hormones in water or sediment; trace elements and other inorganic constituents in water or sediment; cyanotoxins in surface water; lipophilic organic compounds in sediment; disinfection byproducts in water; high-production-volume chemicals in water; wastewater-indicator and industrial compounds in water; and radionuclides in water.

USGS began the NAWQA program in 1991 to develop long-term and consistent information on U.S. streams, rivers, and groundwater, how the conditions are changing over time, and how natural features and human activities affect these features, according to the USGS website.

The USGS report is available at

CATEGORIES: Cercla, FIFRA, Hazmat, RCRA, Toxic Tort, Water

May 24, 2013 Pesticide Use Data Now Available From USGS

Grayson_Lynn_COLORBy E. Lynn Grayson


The USGS recently made available detailed maps identifying annual usage of 459 pesticides throughout the U.S. The Pesticide National Synthesis Project manages pesticide data from 1992-2009 and provides specific statistics associated with pesticide use per crop and within each county.

The maps were developed for use in national and regional water-quality assessments. The USGS data was collected from surveys of farm operations and USDA statistics on annual harvest-crop acreage. This information was used to calculate use rates for each crop per year.

These maps show interesting information about the nature of pesticide use around the country. Data includes insight into the quantity of pesticide use per U.S. county as well as the specific crop growing in the same area.

The usage maps for all 459 pesticides can be accessed at

CATEGORIES: Cercla, FIFRA, Hazmat, RCRA, Toxic Tort, Water

May 21, 2013 High Court Refuses to Take Up Kivalina Climate Suit

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling


On May 20, 2013, the United States Supreme Court denied the Alaska town of Kivalina’s petition for writ of certiorari in its public nuisance lawsuit against Exxon Mobil Corp. and other energy companies. Kivalina contended that the energy companies were injuring the small Eskimo village by causing global warming and a commensurate sea level rise, and, as a result, inhabitants were forced to leave and relocate further inland. Because the Supreme Court has opted not to hear the case, the Ninth Circuit’s ruling in favor of the energy companies will stand. The Ninth Circuit largely followed the reasoning of the Supreme Court in American Electric Power Co., Inc. v. Connecticut, ---U.S.---, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), in affirming the dismissal of the action by the district court and finding that the Clean Air Act (“CAA”) displaced Kivalina’s claim for $400 million in damages to fund a relocation project. (SeeNinth Circuit Affirms Dismissal of Federal Common Law Nuisance Claim for Global Warming.”) Kivalina urged the Supreme Court in its February petition that the case be controlled by Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), which held that the Clean Water Act, a statute like the CAA, did not displace a federal common law damages claim. The case is Native Village of Kivalina, et al. v. Exxon Mobil Corp., et al., Case Number 12-1072, U.S. Supreme Court.

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Keri L. Holleb Hotaling

May 9, 2013 Compliance With FIFRA Regulations Provides Defense From Product Liability Lawsuit

Siros_Steven_COLORBy Steven M. Siros


An Indiana appellate court recently affirmed summary judgment on behalf of The Dow Chemical Company and Dow AgroSciences, LLC (collectively "Dow"), in a personal injury lawsuit premised on alleged design defect and failure to warn claims. See Gresser et al. v. The Dow Chemical Company, Inc., et al. (Ind. Ct. App. April 30, 2013). Plaintiffs purchased a home that had been treated with the pesticide, Dursban TC. Shortly after moving into the home, plaintiffs allegedly experienced adverse health impacts that they attributed to the pesticide. Plaintiffs therefore filed product liability claims against Dow and negligence claims against the pesticide applicator.

Dow filed for summary judgment, arguing (1) that the Dursban was not a defective product and (2) that plaintiffs' claims were preempted under federal law. The trial court granted summary judgment, finding that Dursban was not a defective product and that plaintiffs' claims were preempted. On appeal, the Indiana appellate court noted that Indiana's Product Liability Act ("IPLA") provides a rebuttable presumption that a product is not defective where, before the sale, the manufacturer complies with all applicable codes, standards, regulations or specifications established by an agency of the United States or Indiana. Because Dow had registered the pesticide in compliance with the applicable FIFRA regulations, the court found that Dow was entitled to a statutory presumption that its product was not defective. Plaintiffs presented no admissible evidence to rebut this presumption, and therefore, the court found that Dow was entitled to summary judgment under the IPLA.

With respect to Dow's alternative preemption argument, however, the court found that the trial court's grant of summary judgment on this ground was improper. The court cited to Dow Chemical Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001), noting that "the use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden an applicator's compliance with FIFRA."

To see a copy of this opinion, please click here.