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.

By The Way . . .

Comment Period Extended for Financial Assurance Advanced Notice of Proposed Rulemaking 2/4/2010

On February 4, 3020 EPA extended the comment period until April 6, 2010 on its Advanced Notice of Proposed Rulemaking (ANPR) published January 6, 2010, which identified classes of facilities that EPA intends to develop regulations requiring financial assurance under Section 108(b) of Superfund. In its January 6, 2010 ANPR, EPA identified three industries, Chemical Manufacturing (NAICS 325), the Petroleum and Coal Products Manufacturing (NAICS 325), and the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211) as those industries for which EPA planned to develop financial assurance regulations. These regulations, unlike those under the Resource Conservation and Recovery Act, would cover potential releases of hazardous substances (regardless of whether such substances are wastes) as opposed to potential releases of hazardous or solid waste.

Newman to Speak on the OSHA Global Harmonization & National Emphasis Program
2/3/2010

Meagan Newman will be speaking on the OSHA Global Harmonization & National Emphasis Program at the March 11, 2010 General Membership meeting of the Chemical Industry Council of Illinois. The CICI meeting will be attended by leaders in the chemical industry throughout Illinois. Meagan will present an industry rebuttal to comments on the same topic by the OSHA Assistant Area Director for Enforcement.

SEC To Emphasize The Need for Climate Change Disclosure
1/29/2010

On January 27, 2010, the Securities and Exchange Commission voted to issue an “interpretative release” regarding Climate Change disclosure. An interpretative release is guidance and does not create new legal requirements or modify existing ones. Even so, while intended to provide clarity and enhance consistency, the action is a significant reminder of a public company’s existing obligation to evaluate the impact of climate change on its operations. Under the rubric of materiality, SEC’s disclosure rules cover a company's risk factors, business description, legal proceedings and management's discussion and analysis.
The SEC said the interpretive release would be posted on its Web site as soon as possible. That release will touch on  4 areas for company consideration and, if necessary, disclosure:

(1) The impact of existing (and as appropriate, potential) legislation and regulation.
(2) The risks or effects of international accords and treaties relating to climate change on its business.
(3) Indirect consequences of regulation or business trends; for example, the potential that a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products
(4) Physical impacts of climate change; for example, an insurance company may consider whether there is a risk of increased insurance claims in coastal regions as a result of severe weather or changes in sea levels.

What to Expect from the Occupational Safety & Health Administration in 2010
1/29/2010

On Wednesday, February 17, 2010, Brent Clark, Jim Curtis, and Mark Lies will present a webinar, "What to Expect from the Occupational Safety & Health Administration in 2010." With a new Assistant Secretary of Labor for Occupational Safety and Health and a Secretary of Labor who is dedicated to ensuring that the Occupational Safety & Health Administration (OSHA) is “back in the enforcement business,” employers are facing a new frontier of OSHA enforcement. Based on our observations, OSHA has become much more aggressive in issuing citations, increasing the characterization of the citations issued, and proposing higher penalties. We expect to see even further increases in 2010.  To register for this event, please visit www.seyfarth.com/webinar021710.   

Acquiring, Developing, and Disposing of Brownfield Sites
1/15/2010

On January 21, 2010, Joe Pellis of Seyfarth Shaw, and Victor Miller, Vice President, General Counsel, of Honeywell Defense & Space, will be making a presentation on "Acquiring, Developing, and Disposing of Brownfield Sites," at the American Conference Institute's Environmental Regulation and Enforcement Conference, in Washington D.C.  To learn more about the event, please click here.

New Guidance for Vapor Intrusion Expected
1/8/2010

A recent report issued by the Government Accountability Office concludes that EPA should update its vapor intrusion guidance (Lack of Final Guidance on Vapor Intrusion Impedes Efforts to Address Indoor Air Risks, Report No. 10-P-0042). Part of the recommendations ask EPA to identify and publicly report the portions of OSWER’s November 2002 draft vapor intrusion guidance that remain valid and the portions that should be updated. EPA plans to act on the recommendations, but that still could take a number of months - or years - to implement. Vapor intrusion analysis is complex and state's seeking such as part of compelled or voluntary remediations have varying approaches, many of which are not well supported scientifically.

EPA Proposes New  Rule Identifying Additional Industries for Superfund Financial Assurance
1/6/2010

On January 6, 2010, EPA published an Advance Notice of Proposed Rulemaking pursuant to Section 108(b) of Superfund, a long-ignored provision that required EPA, by 1983, to identify classes of facilities that should be subject to financial responsibility because they manage hazardous substances.  EPA issued the notice after a federal district court in California granted a motion brought by the Sierra Club and ordered EPA to finally comply with the Superfund provision. In a July 28, 2009, notice, EPA identified facilities within the Hardrock Mining industries as those for which it will first develop financial assurance rules. In the new notice, EPA identifies classes of facilities within three more industries: Chemical Manufacturing (NAICS 325); Petroleum and Coal Products Manufacturing (NAICS 324); and the Electric Power Generation, Transmission and Distribution industry (NAICS 2211).  The Agency also identified four other industries as "requiring further study." These are: the Waste Management and Remediation Services industry (NAICS); the Wood Product Manufacturing industry (NAICS 321); the Fabricated Metal Product Manufacturing industry (NAICS 332); the Electronics and Electrical Equipment Manufacturing industry (NAICS 334 and 335); as well as recyclers of hazardous substances.  The significance of this rulemaking is that the identified facilities may some day be required to post financial assurance, in the form of a bond, letter of credit, insurance, or other mechanism, to cover the cost of cleaning up spills of hazardous substances.  As Superfund contains no threshold concentration for "hazardous substances," the regulated community will need to participate in this rulemaking to guard against over breadth.  

EPA Phasing In Electronic Reporting For Section 5 TSCA Notifications
1/6/2010

After April 6, 2012 the Agency will no longer accept paper, CDs or DVDs containing Section 5 notices; instead companies must use EPA's e-PMN software. Affected TSCA submissions include the following types of TSCA notices: PMN, SNU, low-volume exemption, low exposure/low release exemption; commencement of manufacture or import, and notices relating to genetically modified organisms. Let us know if you need information on the e-PMN software or the timing/phase-in requirements.

Post-Construction Stormwater Monitoring and Control
1/6/2010

On the heels of EPA's new final rules establishing numeric limits for stormwater associated with construction sites, and requiring certain BMPs at construction sites, EPA is now developing stormwater rules that will apply to sites post-construction. EPA is soliciting comments, and will conduct "listening sessions" to gather input into the new rulemaking. Jeryl Olson will be attending the session on January 19 in Chicago; let her know if you would like to submit comments or present information to EPA about post-construction stormwater monitoring and control at new and re-developed sites.

EPA Requests Public Comment on National Enforcement and Compliance Priorities
1/5/2010

The EPA is requesting public comments and recommendations on enforcement and compliance priorities for the fiscal years 2011–2013. EPA announced that it selects priority areas every three years in order to focus federal resources on the most important environmental problems where noncompliance is a significant contributing factor.

The Agency has published a list of "priority candidates" that is available at www.epa.gov/compliance/data/planning/priorities/index.html. It includes the following:

• Air Toxics
• Concentrated Animal Feeding Operations
• Environmental Justice—Community Based Approach
• Indian Country Drinking Water
• Marine Debris
• Mineral Processing
• Municipal Infrastructure
• New Source Review/Prevention of Significant Deterioration (NSR/PSD)
• Resource Conservation and Recovery Act (RCRA) Enforcement
• Resource Conservation and Recovery Act (RCRA) Financial Assurance
• Resource Extraction
• Pesticides at Day Care Facilities
• Surface Impoundments
• Wetlands
• Worker Protection Standards

The online list provides links to more detailed information. The Agency notice states that "EPA will consider … [public] comments as it moves forward in the decision-making process, but will not respond to all comments received."

Comments must be received on or before January 19, 2010.

OSHA's Recordkeeping National Emphasis Program
12/22/2009

Mark Lies and Dan Flynn have published an article on "Set Your Records Straight: OSHA's Recordkeeping National Emphasis Program Creates Employer Liability." Check-out a copy by clicking here.

Proposed Rule to Exempt Solvent Contaminated Wipes
12/17/2009

The EPA proposed in 2003 (but never finalized) a rule to exempt solvent contaminated wipes from regulation as hazardous waste that are sent to commercial/industrial laundries. In October of this year, the EPA issued a revised risk analysis on the proposal and asked for comments. The December 15, 2009, Federal Register contained a notice by EPA indicating that the deadline by which comments can be submitted on the revised risk analysis is being extended until February 26, 2010.

EPA Publishes Endangerment Finding
12/15/2009

EPA published its endangerment finding in the Federal Register with an effective date of January 10, 2010. In this finding, EPA concludes that six greenhouse gases -- carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride -- "endanger both the public health and the public welfare of current and future generations." EPA further finds that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines add to the "greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a)." The finding opens the door for EPA to regulate the six gases as pollutants under the Clean Air Act.

EPA Issues Two New Findings under the Clean Air Act Setting the Stage for the Regulation of Greenhouse Gas Emissions
12/9/2009

On December 7, 2009, the EPA Administrator, Lisa Jackson, formally made two separate findings required to authorize the regulation of greenhouse gases under the Clean Air Act. Both findings pertain only to motor vehicles but set precedent for similar findings with respect to stationary sources. In the "Endangerment Finding" (proposed April 2009), EPA finds that the current and projected concentrations of the six key greenhouse gases -- carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) -- in the atmosphere "threaten the public health and welfare of current and future generations." In the "Cause or Contribute Finding," EPA concludes that the combined emissions of these "well-mixed greenhouse gases" from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare. Although these findings do not impose regulatory norms upon industry, they begin to lay the groundwork for future regulatory proposals affecting a wide range of stationary and mobile sources.

Find a more detailed analysis of the Agency's April 2009 proposal by clicking here.

Eric Boyd and Phil Comella to Speak at SWANA Landfill Symposium
12/2/2009

Eric Boyd and Phil Comella will be presenting papers at the Solid Waste Management Association of North America's 15th Annual Landfill Symposium and Planning & Management Conference (http://lfpm.swana.org), to be held April 12th -13th, 2010, in Reno, Nevada. Eric will present “SO2, CO2, and Other Emerging Air Pollutant Permitting Issues,“ and Phil will present “The Top Ten Issues in Negotiating Landfill Gas Contracts.“

New EPA Rule on Stormwater from Construction Sites
11/24/2009

A new Final Rule from the EPA sets, for the first time, monitoring requirements and numeric effluent limits on stormwater discharges to waters from construction sites. The Final Rule, which was issued pursuant to a Court Order, will be effective 60 days following publication in the Federal Register.

For more information on the new effluent limitation guidelines, visit the EPA's website: http://www.epa.gov/waterscience/guide/construction/

Effective Jan. 1, 2010 "Energy Efficiency Projects" Eligible for Illinois Financing Authority Funding
11/18/2009

Effective January 1, 2010, “Energy Efficiency Projects” will now be eligible for funding from the Illinois Financing Authority (“Authority”). The Authority was established by the Illinois Finance Authority Act (“Act”) in 2003 and has been authorized since its inception to issue bonds to fund specific energy projects. Since July 2009, three types of projects have been eligible for funding: coal projects, clean coal projects, and renewable energy projects. With Governor Quinn’s recent signing of Senate Bill 390, Energy Efficiency Projects will now also be eligible for funding from the Authority. Energy Efficiency Projects are defined broadly to include “measures that reduce the amount of electricity or natural gas required to achieve a given end use.” The Authority may issue up to $450 million in funding for any single borrower and up to $2 billion in combined financing for Energy Efficiency Projects.

Mark Lies has been advising clients regarding supervisor duties to enforce OSHA compliance in the major construction industry.  Insurance brokers have found this service valuable for their insureds. If you are interested in these services, please contact Mark Lies.

Eric Boyd and Jeryl Olson of Seyfarth Shaw will be attending the public hearings on the PSD and Title V GHG Tailoring rule on November 19, 2009 in Chicago.

On November 12, the ESTT group co-sponsored the Alternative Energy Program for the Mass. Building Congress.

EPA Proposed Rule on PSD and Title V Permitting for GHG Emissions
11/3/2009

On October 27, 2009, EPA published a proposed rule for permitting Greenhouse Gas (GHG) emissions under the PSD and Title V provisions of the Clean Air Act. The proposal seeks comments on EPA’s plan to adjust the threshold emissions triggers applicable to PSD and Title V permitting for sources that emit GHGs; EPA is “tailoring” the thresholds because there are an enormous number of GHG sources that would become subject to PSD and Title V permitting if the thresholds for applicability were set at the current PSD and Title V triggers (250 tpy and 100 tpy respectively for most types of operations). By “tailoring” the GHG thresholds to 25,000 tpy CO2e for PSD permits, and 10,000–25,000 tpy CO2e for Title V permits, EPA will avoid having to call for, review, issue, and otherwise administer the thousands of Title V and PSD permits that would be required for sources newly subject to PSD and Title V permitting requirements solely on the basis of their GHG emissions.

The comment period expires on December 28, 2009. Likely topics for comment include:

• the 25,000 tpy CO2e threshold for PSD applicability
• the 10,000–25,000 tpy CO2e threshold for Title V applicability
• USEPA authority for the rulemaking
• use of Presumptive BACT for GHG sources subject to PSD
• use of “General” Title V permits for GHG sources
• use of “Permits by Rule”-type Title V permits for GHG sources
• GHG thresholds for triggering “significance levels” under PSD rules
• effect of rulemaking on SIPs
• timing of rulemaking
• “phase in” of rules