Continuing Efforts to Ban Microbeads

GraysonBy E. Lynn Grayson 

Microbeads in waterThe District of Columbia (D.C.)  is the latest to propose a ban on microbeads starting January 1, 2018. The proposed ban, part of D.C.’s omnibus fisheries and wildlife bill aimed at ensuring marine areas and waterways remain pollutant-free, is one of the more aggressive approaches prohibiting the supply, manufacture, or import of personal care products containing microbeads. Fines up to $37,500 may be imposed for failure to comply with the ban.

Eight states, including Colorado, Connecticut, Illinois, Indiana, Maine, Maryland, New Jersey, and Wisconsin, as well as Erie County, New York, have laws banning the manufacture of personal care products containing microbeads starting as early as January 1, 2017.

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You Are Invited: Environmental Attorney Reception at Jenner & Block

Essig_Genevieve_COLOR By Genevieve J. Essig

On October 5, 2015, from 5 p.m. to 7 p.m., the CBA Environmental Law Committee, CBA Young Lawyers Section Environmental Law Committee, ISBA Environmental Law Section and ABA Section of Environment, Energy, and Resources will be hosting a networking reception for environmental attorneys at Jenner & Block's offices in Chicago. There will be brief remarks from IIT Chicago-Kent Professor Dan Tarlock on U.S. Supreme Court environmental cases in the upcoming term.

A summary of the details is below.  If you would like to join us at the reception, please RSVP here.

Environmental Attorney Reception

October 5, 2015 
5:00 pm - 7:00 pm

Jenner & Block 
45th Floor Conference Center

353 N Clark Street
Chicago, IL 60654

Seventh Circuit Opens the Door for End Run on General Causation in Toxic Tort Cases

Siros_Steven_COLORBy Steven M. Siros


ImagesA recent decision by the Seventh Circuit Court of Appeals may significantly lower the causation bar for plaintiffs in toxic tort cases. In the case C.W. & E.W. v. Textron, Inc., the Seventh Circuit was called on to evaluate a district court decision that excluded plaintiffs' experts for failing to meet the admissibility requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. The Seventh Circuit's analysis of the district court's decision was relatively straightforward and the Seventh Circuit acknowledged that the district court had carefully considered the methodology employed by plaintiffs' experts. The Seventh Circuit concluded that the district court had properly exercised its gatekeeper role under Daubert in concluding that there simply was too great an analytical gap between the data and the expert opinion being offered such that the opinion amounted to nothing more than the ipse dixit of the expert.

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US EPA Publishes Proposed List of National Enforcement Initiatives for FY2017–19

Bandza_Alexander_COLOR By Alexander J. Bandza


On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19.  This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering. 

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Wind Power Companies Further Commit to Protection of Bats


GraysonBy E. Lynn Grayson

The American Wind Energy Association (AWEA) announced that seventeen of its members have agreed to voluntary operating restrictions to reduce wind turbine speeds in the fall to minimize the number of bats killed during their migration season. According to the AWEA, the new policy results from more than 10 years of research by the Bats and Wind Energy Cooperative and others. It is anticipated that the changes may reduce adverse impacts to bats from operating wind turbines by as much as 30 percent.

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U.S. EPA Ordered to Pay Attorneys' Fee Sanction In Clean Water Act Lawsuit

Blog 1

Siros_Steven_COLORBy Steven M. Siros


On August 30, 2015, a federal district court judge in Texas granted a developer’s motion for summary judgment against the United States and ordered the Government to reimburse the developer’s legal fees incurred in defending the Government’s lawsuit as a result of conduct that the court characterized as being “oppressive and dishonest.”  According to the district court, in 2004, the developer began developing several tracts of land located in north Houston.  In 2007, an investigator with the United States Environmental Protection Agency (U.S. EPA) advised the developer to stop developing its property because the property contained wetlands that U.S. EPA contended constituted jurisdictional waters of the United States.  In May 2010, the United States sued the developer for violations of the Clean Water Act (CWA), and more specifically, for discharging fill into what the United States contended were waters of the United States without a CWA permit.

The court rejected the United States’ claims that the developer filled wetlands constituting jurisdictional waters of the United States finding instead that:

“Mill Creek and Dry Creek, as the latter’s name suggests, are little more than drainage ditches that conduct water only after a rain—a country boy could easily jump them.  The same is true for the three tributaries.  They are not permanent waters.  The government’s characterization as seasonal is generous and accurate only insofar as they are wet in the Spring and Fall after is has rained.  They are wetlands only in the same way that the entire area is coastal prairie.”

The court went on to state that “[t]he seasonal connection of some wetlands to seasonal tributaries that feed navigable waters is too tenuous a connection to give the government jurisdiction under the [CWA].” 

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U.S. EPA Releases One-Week Internal Review on the Colorado Mine Blowout, Concludes the Incident Was “Inevitable”

Bandza_Alexander_COLORBy Alexander J. Bandza

Colorado Gold Mine Release

Earlier this week, the U.S. EPA released its “Internal Review of the A
ugust 5, 2015 Gold King Mine Blowout,” which provides the EPA Internal Review Team’s “one week rapid assessment” of the events and potential factors contributing to the Colorado mine adit blowout earlier this month.  The Review sets out a series of conclusions and recommendations, many of which lay the foundation for absolving the U.S. EPA of any wrongdoing here while proposing extensive recommendations for the future.

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2015 World Water Week

GraysonBy E. Lynn Grayson

The 2015 World Water Week, August 23-28, is the annual focal point for global water issues. Sponsored by the Stockholm International Water Institute (SIWI), the 2015 theme is Water for Development. World leaders, as well as experts, practitioners, business innovators, and other professionals from a range of sectors and countries will meet to network, exchange ideas, foster new thinking, and develop solutions to the most pressing water-related challenges.

In the world today, 750 million people still lack access to safe water. World Water Week participants will address how water is vital to sustainable development and how we can be smarter about using this very critical resource more wisely. 

A series of sessions will take place, many available to the public and available online, addressing such topics as: building urban sewerage infrastructure; creating water and climate resilient cities; the case for solar water pumps; a water secure world; and impact of subsidies on efficient water technology uptake with agriculture. Another topic to be addressed, of particular interest to U.S. participants, is the California drought and actions being taken to address the impacts and consequences of these climate changes.

In preparation for 2015 World Water Week, earlier this month SIWI issued its special report titled "Water for Development-Charting a Water Wise Path," providing important input for the annual meeting on water and development issues.

A press release issued yesterday provides an overview of meetings, programs, and activities planned this week. You can also follow World Water Week via Twitter at #WWWeek and @siwi_water or on Facebook at World Water Week in Stockholm.

Canada Takes Action to Ban Microbeads

GraysonBy E. Lynn Grayson

The Canadian government recently took action to ban microbeads, very small particles found in a variety of consumer and personal care products that may pose adverse environmental impacts in rivers, lakes, and oceans after they are washed down the drain.


Specifically, the Canadian government proposes to designate microbeads as toxic substances and to develop regulations that would prohibit the manufacture, import, and sale of consumer and personal care products containing microbeads.

A thorough scientific review that included an analysis of over 140 scientific papers, as well as consultations with experts, revealed that the presence of microbeads in the environment may have long-term effects on biological diversity and ecosystems. A summary of key findings include:

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OSHA Proposes 10-Fold Reduction in Beryllium Workplace Exposure Limit

Torrence_Allison_COLORBy Allison A. Torrence

On August 7, 2015, the Occupational Safety and Health Administration (OSHA) published a proposed rule in the federal register that would reduce exposure limits for occupational exposure to beryllium. Beryllium is a strong but lightweight metal (it is stronger than steel, but lighter than aluminum) used primarily in the aerospace and defense industries and is classified as a strategic and critical material by the U.S. Department of Defense. OSHA estimates that approximately 35,000 workers are potentially exposed to beryllium in approximately 4,088 establishments in the United States.

Beryllium exposure is an occupational health concern because inhalation or contact with beryllium particles can cause an immune response that results in beryllium sensitization. Individuals with beryllium sensitization can develop a disease of the lungs called chronic beryllium disease (CBD) if they inhale airborne beryllium after becoming sensitized. OSHA states that beryllium exposure has also been linked to other adverse health effects such as acute beryllium disease and lung cancer.

OSHA’s current eight-hour permissible exposure limit (PEL) for beryllium is 2.0 micrograms per cubic meter of air. The current PEL was set over 40 years ago – in 1971. OSHA’s proposed rule would reduce the eight-hour PEL to 0.2 micrograms per cubic meter and require additional protections such as personal protective equipment, medical exams, other medical surveillance and training. OSHA estimates that the new rule could prevent almost 100 deaths and 50 serious illnesses each year.

OSHA’s press release on the proposed rule is available here and the full text of the proposed rule is published in the federal register. Comments on the proposed rule must be submitted to OSHA before November 5, 2015.