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Corporate Environmental Lawyer Blog

June 1, 2015 Corporate Environmental Lawyer celebrates five years of blogging with a new design!

In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:

  1. Mobile and tablet responsive technology
  2. A trending-categories cloud list
  3. Easy-to-use social sharing buttons
  4. Streamlined navigation menus

  5. Access to all five years of posts

In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics.  We look forward to continuing to provide content covering the issues that are driving changes in environmental law.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Keri L. Holleb Hotaling, Stephen H. Armstrong, Robert L. Byman, Anne Samuels Kenney (Andi), Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

May 1, 2015 EPA Request for Public Comments on 1,4-Dioxane

Grayson photoBy E. Lynn Grayson

On April 28, 2015, EPA announced the availability of a problem formulation and initial assessment document for the Work Plan Chemical 1,4-Dioxane and opened a 60-day public comment period until June 29. The notice also seeks input on EPA's Office of Pollution Prevention and Toxics' (OPPT) initial concerns about the industrial solvent 1,4-Dioxane.

Following receipt of comments on the problem formulation and initial assessment document and consideration of any additional data or information received, EPA will initiate a risk assessment which is the process to estimate the nature and probability of adverse health and environmental effects in humans and ecological receptors from chemical contaminants that may be present in the environment.

CATEGORIES: Cercla, Climate Change, Hazmat, OSHA, RCRA, Sustainability, TSCA

April 23, 2015 Earth Day 2015: Trivia — April 23 (Answers)

By Genevieve J. Essig

1. Alphabetically, what are the second three states with OSHA-approved State Plans? Connecticut, Hawaii, and Illinois. See the full list here.

2. The following provision is known as what?

"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

The General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act of 1970).

CATEGORIES: OSHA

April 23, 2015 Earth Day 2015: Safer Chemicals: Protecting Employees and the Earth at the Same Time

Kenney photoBy Andi S. Kenney

Chemicals, natural and synthetic, are all around us.  We can’t live life without them--and we wouldn’t want to.  But some chemicals are toxic to humans and the flora and fauna with which we share the earth.   Replacing toxic substances found in the workplace, distributed in commerce and contained in wastes with less harmful materials protects employees, consumers and the environment at the same time.  Safe Chemical and Green Chemistry initiatives seek to do just that.

OSHA estimates that each year more than 190,000 employees become ill and 50,000 die as a result of chemical exposures.  Environmental and health and safety regulations restrict only a small percentage of the chemicals in use.  Active chemical management systems designed to minimize or eliminate chemical hazards by finding safer alternatives can have a significant impact on employee health.  Employers have often found that switching to safer chemicals reduces costs by reducing employee absences, medical expenses, disposal costs, and sometimes material costs.  Additional benefits often include greater efficiencies and/or performance, improved employee morale and the benefits associated with being an industry leader and socially responsible employer.

OSHA has developed a tool kit to help employers interested in transitioning to safer chemicals.  The tool kit outlines a seven step approach to understanding the chemicals being used in the workplace and finding and evaluating opportunities for improvements. It also includes a number of links to additional useful information.  The tool kit can be found here.

Removing harmful chemicals from the workplace reduces the presence of harmful chemicals on our jobsite, on our roads, rails and waterways, in our products and ultimately in our landfills—a win for everyone and the environment.

CATEGORIES: Hazmat, OSHA, Sustainability

PEOPLE: Anne Samuels Kenney (Andi)

April 23, 2015 Earth Day 2015: Trivia — April 23

By Genevieve J. Essig

1. Alphabetically, what are the second three states with OSHA-approved State Plans?

2. The following provision is known as what?

"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

Please submit your answer to me and indicate whether you would mind us sharing your name in a later post, should you be the first correct responder.

CATEGORIES: OSHA

December 24, 2014 Governor Quinn Nixes Illinois Statute of Repose for Construction Asbestos Claims

Siros photoBy 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.

CATEGORIES: Air, OSHA, Toxic Tort, TSCA

PEOPLE: Steven M. Siros

June 9, 2014 Illinois Amendment Strips Third Party Safety Consultants of Workers’ Comp Exclusivity Protection

By Andi S. Kenney

On June 5, 2014, Governor Quinn signed a bill amending the Illinois Workers' Compensation Act and limiting protection for third party safety consultants from workers' suits. The Workers' Compensation Act prevents employees who sustain personal injuries or death in the line of duty from suing their employers for damages—establishing the workers' compensation program as the exclusive remedy. Prior to the Amendment, Section 5 of the Act explicitly stated that there is no common law or statutory right to recover damages from the employer, the employer's insurer, broker or "service organization retained y the employer, his insurer or his broker to provide safety service, advice or recommendations to the employer." The Amendment, which became PA 098-0633, limits the scope of protection from civil lawsuits to service organizations that are "wholly owned by the employer, his insurer or his broker and that provides safety service, advice or recommendations." The result is that independent, third-party safety consultants retained by employers in Illinois can no longer claim that they are covered by the workers' compensation exclusivity provision. Those safety consultants are now potentially subject to suit by injured employees who may claim their injuries are the result of the advice the consultants provided to their employers.

Illinois employers and their safety consultants may want to review should consider reviewing their consulting agreements to determine how the agreements address these potential risks, if at all. Likewise, safety consultants should review their insurance coverage to make sure it is adequate.

A copy of PA 098-0633, which amends the Worker Compensation Act and is effective immediately, can be found at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0633&GA=98.

CATEGORIES: OSHA

May 22, 2014 Kansas to Implement the First New OSHA State Plan of the 21st Century?

By Andi S. Kenney

On May 14, Kansas Governor Sam Brownback signed a bill directing the State Secretary of Labor to study and make recommendations by January 2015 regarding whether the State should assume responsibility for regulating workplace safety and health. The move is widely seen as the first step toward the State supplanting the authority of the Federal Occupational Safety and Health Administration (OSHA) to regulate occupational safety and health. Section 18 of the Occupational Safety and Health Act of 1970 allows states and territories to develop and enforce safety and health standards provided the state program is at least as effective as the federal program. Currently 25 states and two territories operate state plans. OSHA is responsible for establishing and enforcing workplace safety and health standards in the remaining states and Washington, D.C.

The bill tasks the Secretary with identifying the agreements necessary to implement a state plan, reviewing methods to finance a state plan, determining what personnel and statutory and regulatory changes are necessary to implement a state plan, and identifying the interactions with the federal government necessary to transfer authority for regulation from the Federal Occupational Safety and Health Administration to the State.

Proponents of state control point to opportunities for a more productive, cooperative relationship between business and a regulatory agency more in touch with local needs. Critics cite additional costs to the State and concerns about weaker enforcement. Whether Kansas ultimately moves forward with a state plan remains to be seen. If it chooses to do so, it will be the first state seeking initial approval of a full state plan in nearly 40 years . . . and the first in the 21st century.

The bill can be found here.

CATEGORIES: OSHA

May 21, 2014 Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions

Bandza_Alexander_COLORBy: Alexander Bandza

 

As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.  The electronic (PDF) versions of these chapters are now available online:

The entire publication is available from IICLE here.

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

April 23, 2014 Happy Earth Day - 2014

By: Robert L. Graham and E. Lynn Grayson

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.

Robert L. Graham (rgraham@jenner.com) and E. Lynn Grayson (lgrayson@jenner.com), Co-Chairs, Environmental, Workplace Health and Safety Practice Group

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

PEOPLE: Robert L. Byman

April 9, 2014 IICLE Releases New Environmental Law Publication

Grayson_Lynn_COLOR

By: E. Lynn Grayson

 

The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.

According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.

The following chapters in this publication were authored by Jenner & Block EHS lawyers.

* * *

Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago

Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago

 * * *

Chapter 5 – Illinois Environmental Forums
Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago

 * * *

Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago

The publication is available from IICLE at http://iicle.inreachce.com/.

 

 

 

 

 

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

April 4, 2014 Certain Pesticides Fail New U.S. EPA Screening Guide for Volatilization Risks

Siros_Steven_COLORBy: Steven M. Siros

 

On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides"This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.

U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.

In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.

U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.

CATEGORIES: FIFRA, Hazmat, OSHA, Sustainability, Toxic Tort, TSCA

January 9, 2014 NIOSH Issues Updated Nanotechnology Research And Guidance Plan

Schriftman_Seth_COLORBy:  Seth J. Schriftman

 

In December 2013, the National Institute for Occupational Safety and Health (NIOSH or "the institute") released its most updated nanotechnology strategic plan - Protecting the Nanotechnology Workforce: NIOSH Nanotechnology Research and Guidance Strategic Plan, 2013-2016 (the "Plan"). Nanotechnology involves the manipulation of matter on a near-atomic scale to produce new materials and devices. Many of these materials are already in commerce in products ranging from cosmetics, to clothing, to industrial and biomedical applications. The benefits of nanotechnology are vast, as this technology can help address global problems concerning energy, transportation, pollution, health, and food. The economic impact is also great. In fact, the National Science Foundation estimates that, by 2020, nanotechnology will have a $3 trillion impact on the global economy and employ 6 million workers in related product manufacturing.

However, the development of nanotechnology and related materials presents new challenges to understanding and managing potential employee health and safety risks. Specifically, the Plan discusses how "[m]any knowledge gaps still remain on how to work safely with all of these [nano]materials." NIOSH had previously created a series of reports and publications based on its research to address health and safety hazards related to this technology. This research identified adverse health effects in animals exposed to various nanomaterials, assessed exposure to workers, initiated epidemiologic research, and provided guidance on control technologies and medical surveillance. But, the Plan notes how, given the advanced nanomaterials currently under development, there are likely additional potentially hazardous characteristics that will need to be addressed in the future. In this regard, NIOSH's expressed goal is to continue to provide solutions that will prevent work-related illness and injury. Thus, the Plan stresses how timely and targeted research is needed to define hazards, exposures, and risks, and to provide guidance for the safe handling of nanomaterials.

Notably, the NIOSH Nanotechnology Research Center (NTRC) was established in 2004 to coordinate nanotechnology across the institute. Its mission has been to provide national and world leadership for research and guidance on the implications of nanomaterials for work-related injury and illness, and for the application of nanomaterials in occupational safety and health. Ten critical areas of research have been identified, and the Plan contemplates expanding research activities in these areas: toxicity and internal dose; measurement methods; exposure assessment; epidemiology and surveillance; risk assessment; engineering controls and personal protective equipment (PPE); fire and explosion safety; recommendations and guidance; global collaborations; and applications. Additionally, the Plan focuses on addressing five NIOSH NTRC strategic goals:

  1. Increasing the understanding of new hazards and related health risks to nanomaterial workers;
  2. Expanding the understanding of the initial hazard findings of engineered nanomaterials;
  3. Supporting the creation of guidance materials to inform nanomaterial workers, employers, health professionals, regulatory agencies, and decision-makers about hazards, risks, and risk management approaches;
  4. Supporting epidemiologic studies for nanomaterial workers, including medical, cross-sectional, prospective cohort, and exposure studies; and
  5. Assessing and promoting national and international adherence with risk management guidance.

In sum, as outlined in its new Strategic Plan, NIOSH will continue to use its resources and partner with others to efficiently and effectively protect the nanotechnology workforce to ensure the responsible development of this new and ever-evolving technology.

To view the Plan, please click here.

CATEGORIES: OSHA

December 19, 2013 Environmental & Energy Cert. Petition Watch

Bandza_Alexander_COLORBy: Alexander Bandza

 

The authors of the Corporate Environmental Lawyer Blog are pleased to announce the launch of a new feature, “Environmental & Energy Cert. Petition Watch.”  This feature will provide weekly updates on petitions for certiorari filed with the U.S. Supreme Court that may be of interest to environmental and energy lawyers.  In the past week, the following EHS-related petitions have been filed, denied, or granted.  For a full list of EHS-related cert petitions submitted from August 2013 through the present (as of December 17, 2013), click here.

                   I.                        FILED

(None.)

                II.                        DENIED

Steel Institute of New York v. City of New York, No. 13-187

Lower Court:  2d. Cir.           

Subject:  Supremacy Clause

Question(s) Presented:  [W]hether state “dual impact” occupational safety and health laws that regulate workers as workers, not as members of the general public, can simultaneously be laws of general applicability that are not subject to federal preemption.

             III.                        GRANTED

(None.)

CATEGORIES: OSHA

November 15, 2013 Fifth Circuit Tackles “At Least Annually” for Purposes of Respirator Fit-Testing

By: Andi S. Kenney

On November 6, 2013, the Fifth Circuit Court of Appeals affirmed an Administrative Law Judge’s decision that Shaw Global Services, Inc. violated the respirator fit-testing requirements by allowing sixteen months between fit tests.  Shaw Global Energy Services v. Perez, Secretary of Labor, No. 12-60834 (5th. Cir., Nov. 6, 2013).  The respirator standard requires an employer to “ensure that an employee using a tight-fitting facepiece respirator is fit tested prior to initial use of the respirator, whenever a different respirator facepiece . . .  is used, and at least annually thereafter.” 29 CFR §1910.134(f)(2) (emphasis added).  The parties did not dispute that Shaw conducted appropriate initial and subsequent fit testing; the issue was whether Shaw’s subsequent fit tests were completed in a timely manner.  Shaw at 6.

The employer argued it complied with the annual fit-testing requirement because “at least annually thereafter” means that fit testing must be completed at least once each calendar year.  By conducting initial fit-testing in June 2007 and subsequent fit-testing in October 2008, Shaw concluded that it met the annual retest requirement.  The Secretary disagreed, arguing that “at least annually” meant “no later than 365 days after the previous testing.” Shaw at 7.

The court deferred to the Secretary in this instance, finding the Secretary’s interpretation consistent with the regulatory language and the purpose of the standard.  The court noted that the employer’s interpretation could lead to a twenty-three month gap if the initial fit test was in January of one year and the retest was not completed until December of the subsequent year.  Such a delay would frustrate the regulations purpose  as reflected in the preamble of “standardizing the fit-testing protocols by ensuring that there are not significant fluctuations in the amount of time between tests.” Id.  However, the court did not embrace OSHA’s interpretation in its entirely, “leav[ing] for another day the question of whether a gap between testing of a year and a few days would violate § 1910.134(f)(2).”   Shaw at 7, fn. 3.

Although the court’s opinion focused solely on the respirator standard, it may have broader applicability because many other OSHA standards require action “at least annually.”  The hearing conservation standard, for example, requires the employer to conduct audiograms at least annually (29 CFR 1910.95(g)(6)).  Likewise, the lockout/tagout standard requires the employer to conduct periodic inspections of its energy control procedures at least annually (29 CFR 1910.147(c)(6)), while the fire extinguisher standard requires the employer to conduct training at least annually for certain employees (29 CFR 1910.157(d)(3) and (g)).  Equipment inspections, chemical monitoring and medical examinations, comprehensive program reviews and retraining may also be required at least annually.   The Shaw case is a reminder that to ensure compliance, employers must not only focus on the content of their OSHA programs but must also be mindful of the calendar when implementing them.  

CATEGORIES: OSHA