Promoting Transparency for Nanomaterials
By James A. Vroman
On June 25, 2010, the Government Accountability Office (GAO) published a report entitled Nanotechnology: Nanomaterials Are Widely Used in Commerce, but EPA Faces Challenges Regulating Risk (See GAO Report). In this report, the GAO notes that companies are increasingly using nanoparticles in the products they manufacture and that industry is diligently conducting research and development in new and innovative ways to incorporate nanoparticles into new materials and products that will reach the market in the not-to-distant future. The GAO acknowledges that the body of research on nanomaterials is growing. However, at the same time, the GAO notes that little is known about the risks nanomaterials pose to human health and the environment. As a result, the GAO strongly encourages the U.S. EPA to expand and improve its efforts to collect data and information on nanomaterials so that it may effectively regulate the manufacture and distribution of products containing nanoparticles.
OSHA Implements Severe Violators Enforcement Program
By Gabrielle Sigel
On June 18, 2010, OSHA implemented its Severe Violators Enforcement Program ("SVEP") against employers who have "demonstrated indifference" to OSH Act compliance. (Click here to read OSHA's SVEP Instruction in its entirety.) The OSHA Instruction describing the program, CPL 02-00-149, replaces OSHA's Enhanced Enforcement Program, which was first announced in 2003.
An employer is deemed to qualify as one who has demonstrated indifference if any of the following criteria are met:
OSHRC Refuses to Find Asbestos Exposure a Serious OSH Act Violation
- Fatality or catastrophe (3+ employees hospitalized) after one or more willful or repeat violations or a failure to abate a serious violation.
- Two or more willful, repeat or failure-to-abate violations based on high gravity serious violations of a "High-Emphasis Hazard." A High-Emphasis Hazard includes fall hazards in all industries and amputation, combustible dust, crystalline silica, lead, excavation/trenching, and shipbreaking hazards as covered by OSHA National or Special Emphasis Programs.
- Three or more willful, repeat, or failure-to-abate violations based on high gravity serious violations related to hazards from the release of a highly hazardous chemical, as defined in the Process Safety Management Program, 29 CFR § 1910.119.
By Gabrielle Sigel
In Secretary of Labor v. ConocoPhillips Bayway Refinery, OSHRC No. 07-1045 (June 15, 2010), the Occupational Safety & Health Review Commission ("OSHRC") modified the judgment of an Administrative Law Judge ("ALJ") who had affirmed OSHA's citation of violations of the asbestos regulations as "serious violations." (Click here to read OSHRC's Decision and Order) In this case, Conoco employees were working in an underground pipeline when they chipped and cut through tar-like material containing asbestos at between 2 to 25%. OSHA found that Conoco had violated the "asbestos in construction" standard, 29 CFR § 1926.1101. OSHA characterized all of the violations as "serious," and the ALJ affirmed that characterization and assessed a penalty of $1,875 for each of the nine cited items.
OSHRC reversed the "serious" characterization, finding that OSHA had not proven that the 20-30 minutes of work on the coating around a pipe sleeve "could have generated, and exposed Conoco employees to, a harmful amount of asbestos." OSHRC Opinion at p. 3. The employees were found to be doing Class II asbestos work, which is "not presumed to generate any particular level of asbestos." Id. at p. 4.
Given that the Secretary of Labor had failed to introduce "case-specific evidence" of an exposure to a harmful amount of asbestos, OSHRC changed the violations' characterization to "other-than-serious" and reduced the penalty to $350 per violation.
OSHA Moves on Walking-Working Surfaces Revisions . . . Again
By Andi S. Kenney
On May 24, OSHA published a proposed rule to amend its walking-working surfaces and personal protective equipment standards, Subparts D and I of the General Industry Standards. The proposed revisions are intended to reduce the number of workplace injuries and fatalities due to slips, trips and falls by requiring the use of updated technologies and current industry practices. Among other changes, the revisions in Subpart D would require employers to provide fall protection to all employees working at heights of four feet or more and would establish specific requirements for the fall protection system used. Revisions to Subpart I would establish criteria and performance requirements for the use of personal fall protection systems.
The revisions would also make general industry requirements more consistent with those in the construction and maritime industries. Like the construction standard, the proposed rule would eliminate the preference for guardrails and would, instead, permit employers to choose from one of several conventional fall protection systems (guardrail systems, safety net systems, travel restraint systems, and personal fall protection systems) or non-conventional means, such as establishing designated areas for work, provided established criteria are met.
This new proposed rule supersedes the proposal published in the Federal Register on April 10, 1990 (55 FR 47660) and republished on May 2, 2003 (69 FR 23528) but retains many of its provisions. One notable difference, however, is that the recent proposal eliminates the option to designate qualified climbers, except in outdoor advertising. OSHA seeks additional comment on that issue as well as on the application of the rule to rolling stock and motor vehicles, fall protection on stacked materials, and building anchorages for rope descent. Comments are due by August 23, 2010.
The proposed rule is published at 75 FR 28862. At 291 pages, it is broken up into six parts that can be found Part 1, Part 2, Part 3, Part 4, Part 5 and Part 6.
EPA Says Formaldehyde Causes Cancer
By E. Lynn Grayson
EPA announced the release of the draft Toxicological Review of Formaldehyde – Inhalation Assessment in the June 2, 2010 Federal Register. EPA found that the chemical, present in a wide variety of consumer products, causes cancer when inhaled. The new findings also conclude that formaldehyde could be up to five times more likely to cause cancer in people than the EPA calculated in 1989 when it classified the chemical as a probable human carcinogen. The Centers for Disease Control and Prevention estimates that U.S. residents typically are exposed to daily formaldehyde concentrations of 10 ppb to 30 ppb indoors. By comparison, EPA’s draft assessment proposes candidate reference concentrations for this chemical ranging from 4 ppb to 9 ppb.
The Formaldehyde Council, Inc. (“FCI”), a non-profit association that represents the leading producers and users of formaldehyde in the U.S., disagrees with EPA’s findings in the draft report. FCI plans to submit additional comments detailing the industry’s position and welcomes the further review to be conducted by the National Academy of Sciences.
EPA seeks public comments on this draft assessment through July 31st. EPA has scheduled a public listening session that will be held on July 27th.
OSHA States Policy RE Training In Foreign Language
By Gabrielle Sigel
In an April 28, 2010, memorandum to all OSHA Regional Administrators, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, reiterated OSHA’s policy that employee training must be conducted in a manner that employees can understand. Many OSHA standards explicitly require training and some require that employees acquire knowledge about a particular issue, but none specify the language in which the training must be provided.
OSHA Implements “Enhancements” To Penalty Policies
By Gabrielle Sigel
On April 22, 2010, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, after finding that OSHA’s penalties were too low to have an “adequate deterrent effect,” issued a memo to OSHA Regional Administrators implementing changes to the penalty calculation system to be used in OSHA inspections and enforcement actions. The changes will be published in OSHA’s Field Operations Manual and will go into effect over the next several months.
OSHA Holding Talks RE Injury and Illness Prevention Program Rule
By Gabrielle Sigel
The U.S. Occupational Safety & Health Administration (‘OSHA”) announced on May 4, 2010, that it will be holding three stakeholder meetings at various sites in June to promote a discussion by registered participants on OSHA’s development of a proposed Injury and Illness Prevention Program (“I2P2”) rule. OSHA seeks to use these discussions to gather information for an I2P2 rule “that will help employers reduce workplace injuries and illnesses through a systematic process that proactively addresses workplace safety and health hazards.” 75 Fed. Reg. 23638. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, has stated publicly that an I2P2 rule could be used to ensure that an employer is identifying all hazards, including ergonomic and chemical hazards. Notably, OSHA was prevented by Congressional action from implementing a rule directly regulating ergonomic hazards.
OSHA Publishes Regulatory Agenda Update
By Gabrielle Sigel
On April 26, 2010, OSHA issued its Spring 2010 semiannual regulatory agenda. The agenda includes announcement of two new actions: development for an Injury and Illness Prevention Program (“I2P2”) rule and modernizing OSHA’s recordkeeping reporting systems, which will include the use of electronic recordkeeping. OSHA’s agenda also schedules that by July 2010, OSHA will issue a final rule on recording musculoskeletal disorders and a final rule on cranes and derricks in construction, including operator training and certification. In this regulatory agenda, OSHA withdrew its rulemaking on hearing conservation for construction workers and delayed or continued its schedule on other potential rules.
Click here for OSHA’s Spring 2010 Regulatory Agenda.
January 2010 Update: Environmental Lender Liability
By Gabrielle Sigel and Genevieve Essig
CERCLA Case Law Developments
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon, U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John’s Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor’s coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon’s liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA’s objections, the court granted Vertellus’s and CBS’s motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon, No. 08-124, slip op. at 20.