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TSCA Reform Bill Now LawJune 22, 2016

President Obama signs the long awaited Toxic Substances Control Act reform bill into law after a more than three year effort to reform the 40 year old law. The Frank R. Lautenberg Chemical Safety for the 21st Century Act is a bipartisan law that will update the rules regarding chemicals and will provide the United States Environmental Protection Agency with greater authority to regulate toxic substances.

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Congress Passes TSCA Reform BillJune 9, 2016

The Senate unanimously passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, named for New Jersey’s late Senator. This legislation will reform the Toxic Control Substances Act after nearly 40 years. President Obama is certain to sign the legislation, which will put into law legislation that has been working its way through Congress since before Senator Lautenberg’s death three years ago.

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The Second Circuit Orders New Trial For Defendants in Asbestos Abatement CaseJune 13, 2014

On June 10, 2010 a federal grand jury in the Northern District of New York returned an indictment against Certified Environmental Services, Inc. (“CES”), Nicole Copeland, a former CES Technical Services Manager (“Copeland”) and Elisa Dunn, a former CES air monitor and field supervisor (“Dunn”). The indictment charged the defendants with impeding the regulatory functions of the United States Environmental Protection Agency (“EPA”) and the Occupational Health and Safety Administration (“OSHA”), violation of the Clean Air Act, the Toxic Substances Control Act (“TSCA”) and the mail fraud statute.  Substantively, the government charged the defendants with aiding two asbestos companies with performing illegal asbestos removals.  The asbestos companies engaged in “rip and run” removals, in which asbestos is stripped and removed dry, often without the safeguards needed to ensure that the surrounding area is not contaminated.  These removals are cheaper to perform, but require an abatement contractor to obtain clearance of its air monitoring results from a company like CES. 

At trial, the jury found CES, Copeland and Dunn guilty of all of the counts against them.  The defendants appealed the convictions and sought a new trial based upon (1) improper “bolstering”of Government witnesses based upon those witnesses’ cooperation agreements; (2) the exclusion of evidence related to the defendants’ good faith; (3) the Government’s belated production of certain discovery material in violation of Brady v. Maryland; and (4) improper remarks in the Government’s rebuttal summation.

On appeal, the Circuit Court found that the Government, despite warnings by the trial judge, improperly attempted to bolster the credibility of key witnesses by referring to provisions of their cooperation agreements, in the absence of any attack on their credibility by the defense. The Court further held that the district court abused its discretion in several evidentiary rulings, and that the prosecutor made improper comments in his rebuttal summation, including personally vouching for an expert witness .  With regard to the Brady material, the Court found that “the district court’s ruling here reduced any prejudice to a minimum.”  The Court noted that it was disappointed by the Government’s failure to disclose evidence in a timely fashion, but that it was not grounds for a new trial.

The Court acknowledged that it “would hesitate to vacate and remand this case for a new trial based on any one of the errors . . . or perhaps even any one category of those errors.  But considering the record as a whole, [it was] compelled to conclude a new trial is warranted.”  The Court continued ”to conclude that the totality of the Government’s misconduct in this case, combined with the district court’s erroneous exclusion of evidence favorable to the defense, denied the defendants a right to a fair trial.”  The Court ordered a new trial for CES, Copeland and Dunn.  Allen previously entered into a plea agreement.

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