Environmental, Safety & Toxic Torts

The Environmental, Safety & Toxic Torts (ES&TT) Group assists clients in navigating local, state and federal environmental and safety laws to find practical business solutions to environmental and safety problems. We are counselors, advisors, negotiators, trial lawyers and appellate advocates with respect to all elements of environmental and safety laws, and we take a practical, efficient, hands-on approach to addressing environmental and safety issues.

We represent a broad range of industry, including heavy industry, chemicals and pharmaceuticals manufacturing, explosives and propellants, solid and hazardous waste disposal, medium and light industrial manufacturing, ammonia and refrigerants, and tankers and transportation. We have extensive experience with solid waste disposal operations (including landfill gas), Clean Water Act and Clean Air Act permitting and compliance, alternative energy, brownfields development, toxic tort litigation and liability issues associated with contaminated property. We address the full spectrum of worker safety and chemical exposure matters, including Process Safety Management. To learn more about our specialties and areas of practice, please click here.  Please also visit the Seyfarth Shaw LLP ES&TT Group’s Linked-In Page, where you will find and may participate in recent news and discussions.

Ninth Circuit Bars CERCLA Declaratory Judgment Where Plaintiff Has Not Already Incurred Recoverable
8/4/2010

A party undertaking a remediation of contaminated property will often sue other responsible parties under CERCLA shortly after incurring some response costs. The thought is that preliminary investigatory costs are not necessarily inconsistent with the National Contingency Plan (NCP), and hence recoverable. More importantly, however, the initiation of CERCLA litigation offers the promise of obtaining a declaratory judgment of future liability, thus forcing the defendant(s) to bear all or the majority of the response costs to be incurred prospectively. Using CERCLA in this fashion allows a party to force the clean up of contaminated property through funding by other parties, either by litigation or negotiated settlement of the CERCLA claim. A recent decision by the Ninth Circuit Court of Appeals provides increased incentive to the defendant to aggressively litigate the issue of whether the incurred costs, although frequently nominal, were actually recoverable under CERCLA. If they were not recoverable, then, according to the Court in City of Colton v. American Promotional Events, Inc. - West, No. 06-56718 (Aug. 2., 2010) plaintiff cannot succeed on its declaratory judgment. Viewed differently, the plaintiff contemplating initiating a CERCLA action should take extra care to ensure that its preliminary activity will qualify as a cost recoverable under CERCLA. Otherwise, it could lose on the merits and be denied declaratory relief. The Ninth Circuit opinion notes that the Courts of Appeals are split on this issue. The ruling of the Ninth Circuit, according to the Colton Court, is in accord with that of the Second, Third and Eight Circuits. In contrast, the Circuit Courts of Appeals for the First and Tenth Circuits have ruled or suggested that a declaratory judgment can proceed under CERCLA even if the incurred costs of response are not recoverable under CERCLA. To access the complete decision click here.

Public Meeting for NPDES Electronic Reporting Rule
7/2/2010

EPA is considering an Electronic Reporting Rule for the NPDES program that could require permittees to electronically submit NPDES information directly to states and/or the EPA. On Tuesday, July 13, 2010 from 1 p.m. until 3 p.m., EPA will hold a meeting open to all stakeholders to comment on the feasibility of electronic reporting requirements, which existing reporting requirements for NPDES subprograms (e.g., pretreatment, biosolids) could be adapted into electronic reporting, costs and benefits to the states, permittees, EPA, and the public, and the timeline for implementation of the potential Rule. Any stakeholders interested in attending should contact Mr. Anuj Vaidya or Ms. Sharon Gonder no later than Wednesday, July 7, 2010 to register. Mr. Vaidya can be contacted at (202) 564-3429 or vaidya.anuj@epa.gov. Ms. Gonder can be contacted at (202) 564-5256 or gonder.sharon@epa.gov.

Employer Duty to Protect Employees Against Heat Hazards
6/30/2010

Mark Lies has released an article, "Employer Duty to Protect Employees Against Heat Hazards." As summer approaches, employers should consider the potential liabilities for not protecting employees against the hazard of heat. This hazard can involve employer legal duties under many laws, including:

• OSHA (Occupational Safety and Health Act)
• Americans with Disabilities Act
• Criminal Law
• Worker’s Compensation
• Third-Party Liability (Outside Contractors)

Click here to read more.

New Hexavalent Chromium Exposure Notification Rule Takes Effect June 15, 2010
6/8/2010

Effective June 15, 2010 employers must notify their employees of all hexavalent chromium exposures. OSHA's new rule revises a provision in the Hexavalent Chromium standard that required notification only for exposures that exceeded the permissible exposure limit. Hexavalent chromium exposure can occur in operations using certain pigments, spray paints and coatings containing chromates, as well as chrome plating baths, and welding or cutting metals containing chromium, such as stainless steel. Prolonged exposure to hexavalent chromium in high concentrations has been linked to lung cancer, and may cause irritation or damage to the eyes and skin.

Final "Tailoring Rule" Under the Clean Air Act
6/3/2010

EPA just published the final "Tailoring Rule" under the Clean Air Act, on June 3, 2010, in the Federal Register at 75 Fed.Reg. 31,514 (June 3, 2010). In short, because greenhouse gases are emitted in such large quantities by so many unregulated sources, EPA "tailored" the applicability of the Act to greenhouse gas emitters by raising the emission thresholds by over 2 orders of magnitude and phasing in the requirements through 2016. Under Section 307(b)(1) of the Administrative Procedure Act, a petition for review of this rule must be filed in the U.S. Court of Appeals for the D.C. Circuit within 60 days of publication or by August 2, 2010. Many petitions, from the full spectrum of stakeholders, are expected to be filed and reportedly, some already have been.

Final Greenhouse Gas Tailoring Rule
5/17/2010

EPA issued its final greenhouse gas (GHG) tailoring rule on May 13, 2010 in which it sets GHG emissions thresholds to define when permits under the New Source Review Prevention Significant Deterioration (PSD) and title V Operating Permit programs are required for new and existing industrial facilities. Details are provided at http://www.epa.gov/nsr/actions.html#2010.