Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Larry Burke

Larry Burke represents clients in citizen suits and in other matters related to RCRA, CERCLA, the Clean Air Act, the Clean Water Act and California's Proposition 65. He brings technical experience to a range of cases, including those involving groundwater contamination, storm water runoff, subsidence, toxic torts, and insurance coverage disputes. Larry also assists major manufacturing and other facilities in air permitting and auditing, hazardous waste, Superfund and OSHA matters. Larry's representative clients include: Chevron, Comcast and Washington County, Ore.

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Fundamental Hazard Communications to Control Risk

Posted in Environmental Quality, Health and Safety
To assure environmental health and safety, businesses must let their employees know the potential chemical hazards in the workplace. Businesses with such hazards were required to implement OSHA’s revised Hazard Communications Standard (“HCS”) in 2016. Safety Data Sheets (“SDS”) are a key component of HCS, and SDS issues are one of the most frequently cited… Continue Reading

Hazardous Waste Transporters Beware !

Posted in Environmental Quality
The Oregon Supreme Court upheld a penalty assessed against a hazardous waste Transporter for failure to manifest hazardous waste regardless of whether it reasonably relied on a determination by the generator that the waste was not hazardous. This ruling suggests an affirmative duty on transporters to make their own determinations. By way of background, the… Continue Reading

Steps to Keep OSHA from Raising the Retaliation Issue

Posted in Health and Safety
OSHA’s new anti-retaliation provisions go into effect on August 10, 2016.  The provisions require employers to:  1) inform employees of their right to report work-related injuries and illnesses without being subjected to retaliation; and 2) establish procedures for reporting work-related illnesses and injuries that are reasonable and do not discourage reporting. Employees may already file anti-retaliation… Continue Reading

When is a reward a bribe? OSHA policy limits workplace safety incentive programs

Posted in California, Federal, Health and Safety, Northwest
Years ago, my employer gave employees a coaster every quarter that the group had no OSHA reportable incidents. Now it would have been in violation to have such a program. Despite criticism from workers compensation carriers who recognize the benefits of incentive programs, OSHA has reiterated its policy and it continues to enforce against companies… Continue Reading

Electronic Disclosure of Violations Coming This Fall

Posted in EPA, Rulemakings
Under EPA’s Audit Policy, those who discover,  promptly disclose and correct environmental violations may have penalties reduced or eliminated. 60 Fed Reg 66, 705 et seq. (1995);  65 Fed Reg 19, 617, et seq.  (2000) EPA recently hosted a webinar on its proposed “eDisclosure” portal for reporting Emergency Planning and Community Right-to-Know Act (EPCRA) and… Continue Reading

OSHA Rules for Injury Reporting Change

Posted in California, Federal, Northwest, Rulemakings
Starting January 1, 2015, OSHA rules will require companies nation-wide to report all work-related in-patient hospitalizations, amputations and eye losses within 24 hours.  Oregon is one of 6 states that already require employers to report single in-patient hospitalizations.  Previously, employers in most other states were only required to report in-patient hospitalizations if three or more… Continue Reading

West Virginia Chemical Spill Likely to Bring Oil and Chemical Inspections and Perhaps Regulatory Changes for Facilities with Large Above Ground Storage Tanks (“AST’s”)

Posted in Environmental Quality, Federal, Health and Safety
Last Thursday residents of Kanawha County reported a foul licorice odor in the air. State and local officials traced the smell to a leak from a 35,000-gallon above ground storage tank along the Elk River.The chemical had overflowed a containment area around the tank, then migrated over land and through the soil into the river.… Continue Reading

OSHA Takes the “M” Out of MSDS and Changes Chemical Labeling Requirements

Posted in Federal, Health and Safety
In 2012, the Occupational Safety and Health Administration (“OSHA”) revised the Hazard Communication System (“HCS”) and other regulations to conform them to the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). Fed. Reg. Vol. 77, No. 58, p. 17573 et seq. (5/15/12). By Dec. 1, 2013, employers must have trained their… Continue Reading

Free Advice on OSHA Compliance!

Posted in Federal, Health and Safety
Oregon published a schedule of training dates on its website which are a convenient way to catch up on programs that your business needs.  The folks from the agency are great to deal with in this setting and you may learn of areas where you actually do need to check with an attorney.  Additionally, the… Continue Reading

It Is Easy to Lose the Privilege Protecting Audit Documents

Posted in Environmental Quality, Natural Resources
In a recent case, documents related to an audit which was described in internal correspondence as being done to assess general compliance were not privileged in later civil litigation since the Court found: (1) the audit was conducted as a regular business activity; and (2) defendants could not establish that litigation was the “driving force”… Continue Reading

Maximizing the Benefit of Appropriate Inquiry: CERCLA & Prospective Purchaser Considerations

Posted in CERCLA, Environmental Quality, Land Use
By: Larry Burke, Davis Wright Tremaine & John Foxwell, R.G., Ash Creek Associates As mentioned in Cheyenne Chapman’s Oregon State Bar Environmental and Natural Resources Section  E-Outlook article earlier this year (2012, Issue No. 3), Prospective Purchaser Agreements (“PPAs”) are an innovative approach to address barriers to the cleanup and redevelopment of contaminated sites. According to… Continue Reading

Oregon Clarifies Authority of the DEQ to Release Brownfield Purchasers from Liability

Posted in Environmental Quality, Northwest
Oregon House Bill 3325 provides the Department of Environmental Quality (DEQ) a mechanism to give potential purchasers a higher level of certainty regarding potential environmental liability.  This legislation clarifies DEQ’s authority to provide a prospective property owner with a release from liability for existing spills or releases of oil and other hazardous substances and for… Continue Reading

When is a Corporation Like the Emperor’s New Clothes?

Posted in Uncategorized
 Sometimes folks might take an investment risk as shareholders in a corporation or members of an LLC in situations where they wouldn’t risk their personal assets. People may think that forming a limited liability entity to hold contaminated properties or manage businesses with environmental risks protects them from liability beyond their investment. In environmental law… Continue Reading

Oregon Stormwater Permits Corrected

Posted in Northwest, Water Law
The general stormwater permits applicable to industrial sites near the Columbia Slough and elsewhere in Oregon were issued with numerous errors and omissions last year.  DEQ has corrected the errors relating to sampling and reporting requirements and reissued the general permits. If these permits apply to you then you will want to check the changes… Continue Reading

OSHA Inspection Plan for 2012

Posted in Federal, Health and Safety
The U.S. Department of Labor’s Occupational and Health Administration (“OSHA”) has an inspection plan for 2012. OSHA’s new target list of companies now includes companies employing 20 to 40 persons as well as larger companies. In addition, OSHA targets high-risk hazards and industries. For 2012, its targets include operations involving: Lead Crystalline silica Petroleum refineries… Continue Reading