EPA Proposes Additional New Rules with Immense Implications Regarding Lead and Lead-Based Paint

On May 6, 2010, the EPA proposed additional new rules regarding lead and lead-based paint, including requirements for contractors that may disturb as little as two square feet of paint during their operations.

The proposed new rules also discuss the fact that, although "child-occupied" spaces have been regulated since 1978 as to the permitted lead content in paint, the same regulation has not been in place for commercial, industrial or public buildings. The proposed new rules address these issues.

The EPA has measured the travel capacity of lead dust from renovation and/or demolition work up to 300 yards or more (via air to soil) despite the use of wetting and other approved dust-mitigation techniques.

The implications are enormous. This will affect not only all contractors that may disturb less than two square feet of paint but will also affect owners/operators of structures that have been renovated/demolished or are likely to be renovated or demolished.

We've been talking about ensuring our contractor clients are covered for lead for weeks, but now is the time to ensure that all of our clients, including owners and operators of property are insured for this exposure.

Currently, fixed-site PLL policies exclude abatement of lead in structures, unless carved back into the policy for coverage. However, these policies currently do cover lead in soil or groundwater, as a rule.

Public comments to the proposed rules are due no later than July 6, 2010. See the full rules as proposed and discussed at 75 Fed. Reg. 87 (pages 25037, et. seq.)

Heightened public awareness about these issues will only increase the likelihood of litigation from those that perceive they have been injured by lead ingestion or that their property has been damaged by lead-dust travel.

It is time to get these exposures covered ASAP.

For more information, contact
Mary Busby: 216 367-4920  |  mbusby@oswaldcompanies.com

Social Media Risk Management: New challenges, insurance solutions exist

Facebook, Twitter and YouTube are giving life to new risks for individuals and businesses. The speed at which images and words can be cut, pasted and redistributed by anonymous sources magnifies the risks for any organization that relies on its reputation when transacting. Most people and companies using social media either don’t fully understand these risks or the potential liabilities. While there have been few legal cases yet, experts assert that it is only a matter of time before we witness multimillion-dollar court cases and insurance settlements.

Chubb Insurance, Fireman’s Fund Insurance Company and Travellers Insurance are leaders in underwriting policies for newspapers, broadcasters, movie makers and online media companies. Chubb, however, is now also recognizing the potential risks from social media participation and is investing resources to adapt its underwriting and protect client companies that are not in the business of media.

“We’re coming in and trying to wake people up,” said Ken Goldstein, Chubb’s worldwide media liability manager to The Star Ledger, New Jersey’s leading daily newspaper. “Non-media companies now have the same exposures: defamation, invasion of privacy, copyright infringements, advertising infringement, allegations of false advertising and trade libel.”

Today, non-media companies represent as much as 15 percent of Chubb’s current book of media liability insurance. The carrier anticipates that this number will climb now that social media has turned almost everyone and their mother into a publisher.  

Dealing with liability
Unlike a traditional media company, the issue for businesses putting up Facebook pages or participating in LinkedIn Groups is the law will likely consider these to be a promotional vehicle or an extension of their brand, which means these web pages and forums are governed by rules for commercial speech.

“You are more exposed to liability for false statements made in advertisements,” as told by David Heller, a senior staff lawyer for the nonprofit Media Law Resource Center, to The Star Ledger. “I think as users feel their way through the new social media, so too will lawyers and judges get a sense of what the norms are for this type of communication.”

Looking ahead

The quickly changing media landscape means companies need to rethink how to protect their brand from potentially devastating lawsuits, as any company that is involved in social media needs to reconsider securing a traditional errors and omissions insurance, even if it has never been a past requirement.

In 2009 there were hundreds of legal threats and thousands of copyright notices sent to the members of the Media Bloggers Association, said Robert Cox, the group’s president to The Star Ledger. Interestingly, he indicated that well over a third of these members write for businesses across all social media platforms.

“I have had personal experience with being legally threatened,” Cox said. “What I learned is how vulnerable we are; all the laws that apply to mainstream media don’t apply to us.”

With a little courage and a lot of common sense, the rewards from sharing information through social media outweigh the risks. These communications vehicles are just like any new business trend as they offer both an opportunity and a threat, which is why you are wise to consult professionals when weighing the costs and benefits.

For more information, contact Drew Gunn at dgunn@oswaldcompanies.com or 216 367-3286.  ■