OSHA Issues New “Recommended” Permissible Exposure Levels For Chemicals In The Workplace
By 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.
EPA Proposes Increased Oversight Of State Enforcement Activities
By Steven M. Siros
U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.
The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.
In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.
The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing environmental laws.
Live: Costa Concordia Salvage Operation – Italy Anticipates Minimal Environmental Impacts
By E. Lynn Grayson
Follow live as the Costa Concordia, which capsized off Giglio Island, Italy, is raised in the biggest salvage operation of its kind in maritime history. Progress has been made and the ship is slowly rightsizing with efforts expected to continue at least through Tuesday.
The efforts of 430 professionals working round the clock to right the Costa Concordia have come up against the complex reality of what has been called the most challenging salvage operation ever performed, with the granite rocks underneath the ship and rough seas.
Rescue teams have managed to stabilize the ship, which is anchored to underwater granite with four submarine anchor blocks and wires, each able to withstand a thousand-ton force. Twenty-five welders are working to reinforce the hull of the Concordia on the sea side, where the wires and hull projections used for stability and to pull up the vessel will be attached.
Salvage workers are drilling holes into the granite that will support six undersea platforms that should arrive in February. On the sea side, between the platforms and the rocks, salvagers will also place an artificial bottom made of 18,000- to 20,000-ton cement bags – about the size of three-quarters of a football field – to create an even surface on the slanting sea bottom.
Once it is sea-ready, the ship will be pulled to a large and deep harbor located a convenient distance from the shipwreck site, although few harbors in Italy fit that description.
Over all, the quality of the water around the half-submerged ship has not been significantly polluted, according to Tuscany's Regional Agency for Environmental Protection, which is in charge of monitoring the site. A fluid spill from the ship's engine room last month, and other small spills, are not of great concern, the agency said.
Investigators are expected to seek indictments of the ship's captain, Francesco Schettino, eight other crew members and Costa Cruises officials in February. Charges could include manslaughter, causing a shipwreck, abandoning ship before passengers were evacuated and causing environmental damage.
View a live cam of the salvage operation at http://www.telegraph.co.uk/news/worldnews/europe/italy/10311659/Costa-Concordia-salvage-operation-live.html.
EPA, OSHA and ATF Issue Ammonium Nitrate Chemical Advisory
By E. Lynn Grayson
EPA, OSHA and ATF have issued a chemical advisory that provides information on the hazards of ammonium nitrate (AN) storage, handling and management. This action supports the goals of President Obama's August 2013 executive order on "Improving Chemical Facility Safety and Security." The advisory provides lessons learned for facility owners and operators, emergency planners and first responders from recent incidents, including the explosion in West, Texas, involving AN in order to prevent similar incidents.
The advisory takes steps now to reduce the risks associated with AN to workers, first responders and communities. It is part of an ongoing coordinated federal government effort to improve chemical safety with regards to AN and includes information on ensuring proper building design, storage containers and fire protection at their locations; learning from other accidents; and knowing and understanding the hazards that exist when developing their emergency response plans.
Earlier this month, President Obama directed the federal government to improve operational coordination with state and local partners; enhance federal agency coordination and information sharing; modernize policies, regulations and standards; and work with stakeholders to identify best practices to improve chemical safety.
President Obama established the Chemical Facility Safety and Security Working Group. To this end, this advisory was developed by working group members and was facilitated by the working group process.
View the advisory and more information on EPA's risk management program: http://www.epa.gov/emergencies/content/rmp/index.htm.
View President Obama's Executive Order: http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
NIOSH Study Finds That Workers’ Silica Exposure At Fracking Sites Exceeds Occupational Health Criteria
By 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.
Jenner & Block Program: “Professional Responsibility And Ethics For Environmental Lawyers” – May 8th
By E. Lynn Grayson
You are invited to join us on Wednesday, May 8, at 12:00 noon on the 45th Floor of the Chicago office for a program entitled "Professional Responsibility and Ethics for Environmental Lawyers." This professional responsibility and ethics program will focus not only on a general update of these issues but discuss legal scenarios and situations unique to environmental law practices.
Our two speakers will be: 1) Miranda K. Mandel, Loss Prevention Counsel, Attorneys' Liability Assurance Society, Inc. (ALAS); and, 2) Michael L. Shakman, Partner, Miller Shakman & Beem LLP.
Enjoy lunch, network with fellow environmental lawyers and learn what experts suggest we do to manage difficult situations that arise in our law practices.
Please forward any RSVPs to Jan Wall (firstname.lastname@example.org).
ELI and Jenner & Block Program: “Obama’s Second Term: Implications For Environmental Practice” – April 24th
By E. Lynn Grayson
You are invited to join us on Wednesday, April 24, at 12:00 noon on the 45th Floor of the Chicago Office, for an important luncheon program we are co-sponsoring with the Environmental Law Institute ("ELI") entitled "Obama's Second Term: Implications for Environmental Practice." This program will bring together three speakers, each of whom played a key role in environmental matters during President Obama's first term, and each of whom is very knowledgeable concerning EPA enforcement trends, emerging environmental issues, and environmental policy challenges.
The three speakers will be (1) John Cruden, currently the President of ELI, who previously served for many years as the Deputy Assistant Attorney General in charge of environmental enforcement at the Department of Justice; (2) Thomas Perrelli, Chair of the Government Controversies and Public Policy Litigation Practice at Jenner & Block, who recently returned to Jenner & Block and who previously was directly involved in environmental matters as one of the key former heads of the Justice Department; and (3) Robert Kaplan, who presently serves as Regional Counsel for Region 5 of the EPA. These speakers will share lessons learned, including what we can expect will affect business and environmental regulation during President Obama's second term.
We are privileged to partner in this program with ELI, one of the preeminent, non-partisan environmental law organizations in the country. Headquartered in Washington, DC, ELI has played a pivotal role since the early 1970s in helping to shape environmental law, policy, and management, both domestically and abroad. This program will present an insider's viewpoint on what we anticipate in environmental enforcement and regulation from the DOJ, EPA, and White House over the next four years.
Please forward any RSVPs to Elizabeth Wong (email@example.com).
Navy Shipbuilders Avoid Asbestos Product Liability Claims
By Steven M. Siros
On October 3, 2012, the United States District Court for the Eastern District of Pennsylvania decided two questions of first impression under maritime law: (1) does maritime law recognize the sophisticated user and/or sophisticated purchaser defenses and (2) is a Navy ship a "product" for purposes of strict product liability law? The plaintiff was a welder who claimed that he was exposed to asbestos aboard various Navy ships during the 1960s and 1970s. He brought both negligence and strict product liability claims alleging that the defendants (Navy shipbuilders) had failed to warn him of the hazards of asbestos in the Navy ships.
The court first evaluated the application of the sophisticated user/purchaser defenses. After considering the policy objectives of maritime law, the court found the sophisticated purchaser defense to be unavailable for asbestos claims under maritime law. The court was concerned that application of the sophisticated purchaser defense would have the effect of leaving all Navy personnel without a remedy since Navy personnel are already precluded from recovering from the United States government for their asbestos-related injuries. With respect to the sophisticated user defense, however, the court noted that recognition of this defense under maritime law would serve to "encourage participation in maritime commerce by limiting—in a reasoned manner—potential liability of those involved in such commerce while continuing to protect those sea workers in need of protection (i.e., those workers who are not sophisticated as to the hazards to which their work exposes them)." The court therefore found the sophisticated user defense to be applicable to negligence claims under maritime law.
Relying on the Restatement (Second) of Torts, the court limited the applicability of the sophisticated user defense to negligence claims and found that the defense was not a bar to plaintiff's strict liability claims. The court therefore proceeded to evaluate whether the Navy ship is a "product" for purposes of strict product liability under maritime law. The court found that as between a shipbuilder and the manufacturer of the various products within the ship, the entities best able to protect sea-bound workers and to bear the burden of preventing harm to these workers are the manufacturers of the various products aboard the ship. The court was concerned that to place upon a Navy shipbuilder potential liability for the tens of thousands of products assembled in a Navy ship pursuant to Navy specifications would "be an undue, unmanageable, and cumulative burden likely to discourage the activity of shipbuilding." The court therefore found that the Navy ship was not a "product" within the meaning of maritime strict product liability law.
To view a copy of the court's order in Mack v. General Electric Company et al., please click here.
Sequestration To Cut $716 Million From U.S. EPA Budget
By Steven M. Siros
If budget sequestration takes effect on January 2, 2013, U.S. EPA will face a $716 million budget cut. According to a September 14, 2012 report from the White House Office of Management and Budget ("OMB"), U.S. EPA's budget would be reduced from approximately $8.4 billion to $7.7 billion. The OMB report projects that the Superfund program would face cuts of approximately $122 million; state and tribal assistance grants would be cut by approximately $293 million; and U.S. EPA's program account would be cut by approximately $220 million. The OMB report goes on to acknowledge that these cuts would degrade U.S. EPA's "ability to protect the water we drink and the air we breathe" and encourages Congress to act to prevent these cuts from being triggered. According to an U.S. EPA official, U.S. EPA is developing its 2014 fiscal year budget without accounting for these significant budget cuts. To see a copy of the OMB report, please click here.
September 11th CBA and ISBA Environmental Networking Reception
By Allison A. Torrence
The Chicago Bar Association (CBA) Environmental Law Committee, the CBA Young Lawyers Section Environmental Law Committee, and the Illinois State Bar Association (ISBA) Environmental Law Section are hosting an Environmental Networking Reception on September 11, 2012, from 4 pm to 6 pm. The networking reception will be held at the Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois.
Jenner & Block attorney and co-chair of the CBA Young Lawyers Section Environmental Law Committee, Allison A. Torrence, will make brief remarks at the reception along with other representatives from the CBA and ISBA.
If you would like to attend, please RSVP by September 7, 2012, to Dave Scriven-Young at firstname.lastname@example.org.
ABA 2012 Blawg 100 – We Need Your Nominations!
By E. Lynn Grayson and Steven M. Siros
Thank you very much for your support of our blog – Corporate Environmental Lawyer – over the past two years. After 300 postings, we hope that you find the information on the blog to be helpful and informative. Every year, the American Bar Association publishes a list of the top 100 legal blogs (or blawgs). If you enjoy reading our blog, we would appreciate your help in nominating our Corporate Environmental Lawyer for the 2012 ABA Blawg 100. The nomination process is simple, takes less than five minutes and can be accessed by clicking on this link. Our URL is http://environblog.jenner.com/.
The nomination deadline is Friday, September 7, 2012. Thank you for considering our request.
New EPCRA Tier I and Tier II Updates
By E. Lynn Grayson
EPA has proposed changes to EPCRA Section 312 Tier I and Tier II Emergency and Hazardous Chemical Inventory Forms required under 40 CFR Part 370. The new rules become effective January 1, 2014.
The reporting requirements under the community right-to-know provisions of EPCRA sections 311 and 312 are on-going obligations. These requirements apply to owners and operators of facilities that are required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical defined under the Occupational Safety and Health Act (OSHA) Hazard Communication Standard (HCS). If the hazardous chemical is present at or above the reporting thresholds specified in 40 CFR part 370, the facility owner or operator is required to submit a MSDS or a list that contains the hazardous chemical under EPCRA section 311. Under EPCRA section 312, if a hazardous chemical is present at or above the reporting threshold specified in 40 CFR part 370, the facility owner or operator is required to submit an emergency and hazardous chemical inventory form (Tier I or Tier II) to the SERC, LEPC and the local fire department by March 1 annually.
EPA will require facilities to report whether the facility storing the chemicals is manned or unmanned and the maximum number of employees who may be present at the facility at one time on both the Tier I and Tier II forms. Additionally, companies will be required to provide contact information of the facility emergency coordinator, Tier I and Tier II contact information, as well as the email addresses of the owner or operator and emergency contact. Companies will have the option of providing facility phone numbers as well.
For the Tier II forms, EPA will also require facilities to report the latitude and longitude of storage sites as well as the identification numbers assigned under the Toxic Release Inventory and risk management program. The Tier II form also will add separate data fields to report pure chemicals as well as mixtures.
EPA had proposed requiring facilities to provide contact information for parent companies on both the Tier I and Tier II forms as well. It did not finalize that requirement. Instead, facilities will have the option to list that information.
For more information, including the new rule, visit EPA's EPCRA webpage at http://www.epa.gov/oem/content/epcra/ .
Top 10 Corporate Environmental Concerns
By E. Lynn Grayson and Katherine M. Rahill
On July 18, 2012, Jenner & Block Partners, E. Lynn Grayson and Katherine M. Rahill published a guest column in Law360 discussing new and emerging environmental issues important to in-house counsel. These issues include:
- Lack of Government Resources/Insufficient Funding
- Environmental Disclosures
- Corporate Environmental Responsibility
- Water Scarcity
- Memoranda of Understanding (MOUs)
- Financial Assurance
- Soil Vapor Intrusion
- EPA Toxicological Reviews
- Improvements in Technology
Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at email@example.com and firstname.lastname@example.org. More information is available at www.jenner.com.
To access the full article, please click here.
OSHA Issues Directive for Approach to Deceased Workers’ Families
By Gabrielle Sigel
The Occupational Safety and Health Administration ("OSHA") has issued its first official directive regarding OSHA's communications with a deceased worker's family after the occurrence of a workplace fatality. OSHA Directive No. CP: 02-00-153, effective April 17, 2012. The Directive provides guidance, not regulations, on how OSHA will communicate with the family from the point that OSHA begins its investigation of the accident through potential settlement of any citation that may be issued relating to the fatality. The Directive imposes obligations on OSHA personnel, not on an employer, but employers would be well-advised to be aware that OSHA will be initiating these ongoing communications.
OSHRC Clarifies Who Is Responsible Executive for Injury Recording Purposes
By Gabrielle Sigel
The federal Occupational Safety and Health Review Commission ("OSHRC") recently clarified who can qualify as a "company executive" authorized to certify the accuracy of a company's annual summary of workplace injuries and illnesses. Secretary of Labor v. C.P. Buckner Steel Erection Inc., No. 10-1021, OSHRC, Apr. 25, 2012. The annual summary is required by regulations under the Occupational Safety & Health Act, 29 CFR 1904.32.