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March 2015

EPA Proposes New Nanoscale Chemical Reporting Rule

Grayson_Lynn_COLORBy E. Lynn Grayson

 

EPA has proposed one-time reporting and record keeping requirements on nanoscale chemical substances in the marketplace. The proposed rule contains a 90-day public comment period. After the comment period, EPA will review and consider those comments before issuing any final rule. EPA also anticipates a public meeting during the comment period to obtain additional public input.

Specifically, EPA proposed requiring companies that manufacture or process (or intend to manufacture or process) chemical substances in the nanoscale range to electronically report information, including the specific chemical identity, production volume, methods of manufacture, processing, use, exposure and release information, and available health and safety data. The proposed rule would apply to chemical substances that have unique properties related to their size. The proposed rule contains exclusions for chemical substances in the nanoscale range that would not be subject to the rule. In addition to this proposed one-time reporting on chemical substances manufactured or processed as nanoscale materials already in commerce, EPA currently reviews new chemical substances manufactured or processed as nanomaterials prior to introduction into the marketplace to ensure that they are safe.

Chemical substances that have structures with dimensions at the nanoscale -- approximately 1-100 nanometers (nm) -- are commonly referred to as nanoscale materials or nanoscale substances. A human hair is approximately 80,000-100,000 nanometers wide. These chemical substances may have properties different than the same chemical substances with structures at a larger scale, such as greater strength, lighter weight, and greater chemical reactivity. These enhanced or different properties give nanoscale materials a range of potentially beneficial public and commercial applications; however, the same special properties may cause some of these chemical substances to behave differently than conventional chemicals under specific conditions.

EPA is proposing this new requirement under TSCA Section 8(a) to determine if further action, including additional information collection, is needed.

More information about the proposed rule, including the Federal Register notice, EPA fact sheet and press release, are available at http://www.epa.gov/oppt/nano/.

World Water Day 2015

Grayson_Lynn_COLORBy E. Lynn Grayson

 

Designated by the UN General Assembly in 1993, World Water Day is celebrated each March 22nd. This year's theme for World Water Day is "Water and Sustainable Development." It is about how water links to all areas we need to consider to create a more sustainable future.

According to UN Water, a day for water and water for sustainable development includes the following considerations:

  1. Water is health – clean hands can save your life.
  2. Water is nature – ecocystems lie at the heart of the global water cycle.
  3. Water is urbanization – every week one million people move into cities.
  4. Water is industry – more water is used to manufacture a car than fill a swimming pool.
  5. Water is energy – water and energy are inseparable friends.
  6. Water is food – to produce two steaks, you need 15,000 liters of water.
  7. Water is equality – every day women spend millions of hours carrying water.

http://www.unwater.org/

FY2016 EPA Budget Proposal

Grayson_Lynn_COLOR

By E. Lynn Grayson

 

EPA Administrator Gina McCarthy recently testified before the Senate Environment and Public Works Committee regarding EPA's proposed 2016 fiscal year budget. EPA's 2016 fiscal year from October 1, 2015 through September 30, 2016. EPA is seeking an increase of $453M over the FY2015 budget to $8.6B proposed in FY2016.

FY2016 budget highlights include funding to address:

1.     Making a visible difference in communities across the country—efforts focused on coordination with other federal agencies, states, tribes and stakeholders to provide community support for needed assistance and support for capacity building, planning, and implementation of environmental protection programs;

2.    Addressing climate change and improving air quality—actions to reduce climate change and support the President's Climate Action Plan including new proposed funding for greenhouse gases through commonsense standards, guidelines and voluntary programs;

3.    Protecting the Nation's Waters—focus on to ensure waterways are clean and drinking water is safe because there are far reaching effects when rivers, lakes and oceans become polluted;

4.    Taking steps to improve chemical facility safety—support to improve the safety and security of chemical facilities and reduce the risks of hazardous chemicals to facility workers and operators, communities and responders;

5.    Protecting our lands—continued work to cleanup hazardous and nonhazardous wastes that can migrate to air, groundwater and surface water and soils;

6.    Ensuring the safety of chemicals and preventing pollution—expand chemical safety programs and enhance quality, accessibility and usefulness of information about commercial chemicals and pesticides;

7.    Continuing EPA's commitment to innovative research & development—R&D efforts to address the interplay between air quality, climate change, water quality, healthy communities and chemical safety;

8.    Supporting state and tribal partners—new funds for categorical grants and setting the bar for continuing partnership efforts with states and tribes;

9.    Maintaining a forward looking and adaptive EPA—emphasis on physical footprint including space optimization and essential renovations of laboratories throughout the U.S.; and,

10.    Reducing and eliminating programs—elimination of programs that have served their purpose and accomplished their mission for a cost savings of $44M.

For more information on the proposed budget, visit http://www2.epa.gov/planandbudget/fy2016.

Steven M. Siros and Allison A. Torrence to Participate in CBA Seminar on Environmental Litigation Skills

Essig_Genevieve_COLORBy Genevieve J. Essig

 

Tomorrow, Wednesday, March 18, the Chicago Bar Association will be hosting a CLE Seminar on Environmental Litigation Skills. Jenner & Block’s Steven M. Siros and Allison A. Torrence will be participating in the panel on Alternative Dispute Resolution, as panelist and moderator, respectively. The CLE program will also include panels on discovery in environmental litigation and working with experts. You can register on the CBA’s website here. Event details are as follows:

Environmental Litigation Skills
Date: 03/18/2015
Time: 3:00 PM - 6:00 PM
Location: The Chicago Bar Association, 321 South Plymouth Court, Chicago, IL 60604
Presented by: Environmental Law
Experience Level: Intermediate
MCLE Credit: 2.75 IL MCLE Credit


EPA TSCA Penalty Struck Down

Siros_Steven_COLORBy Steven M. Siros

 

On March 13, 2015, the Environmental Appeals Board ("EAB") struck down a landmark $2,751,800 penalty that had been imposed on Elementis Chromium for its alleged failure to comply with the Toxic Substances Control Act's ("TSCA") reporting obligations under Section 8(e). Under TSCA Section 8(e), companies are obligated to report information showing that chemicals and/or mixtures that they manufacture pose substantial health or environmental risks unless it can be demonstrated that U.S. EPA has been "adequately informed" of the health and/or environmental risks.

In November 2013, an Administrative Law Judge ("ALJ") ruled that Elementis had violated Section 8(e) by failing to report to U.S. EPA a 2002 study that allegedly showed an increased risk of lung cancers for workers exposed to hexavalent chromium and upheld a $2.5 million penalty that had been imposed by U.S. EPA. On appeal, Elementis argued that U.S. EPA's guidance on what needed to be reported under TSCA Section 8(e) was ambiguous and that Elementis could not have known that the 2002 study needed to reported, especially in light of the fact that OSHA had concluded that the study lacked any new risk information. Elementis also argued that the five-year statute of limitations provided for in 28 U.S.C. 2462 rendered U.S. EPA's claims time-barred (more than five years had lapsed between the time that Elementis had received the study in 2002 and U.S. EPA's 2010 enforcement proceeding).

The EAB agreed that Elementis was not required to provide the 2002 study to U.S. EPA. The link between hexavalent chromium and lung cancer has been known for decades and none of the information in the 2002 epidemiological study showed that hexavalent chromium exposure results in a more severe effect than lung cancer or a shorter time to the onset of lung cancer than was already documented in prior studies. The EAB noted that U.S. EPA's long-standing interpretive guidance provides that information is exempt from TSCA Section 8(e) reporting if it is corroborative of information U.S. EPA already is aware of. Per U.S. EPA, information is "corroborative" if it does not show that well-established adverse effect is of a more serious degree or different kind than previously known. Information may very well be new, different, and valuable without showing an adverse effect to be substantially more serious. However, unless such new information shows a more serious or different risk, per the EAB ruling, it does not need to be reported under TSCA Section 8(e).

Although the EAB reversed the ALJ's penalty determination, it did give U.S. EPA a victory on the statute of limitations issue. The EAB rejected Elementis' statute of limitations argument, finding that TSCA Section 8(e) imposed a continuing duty to report health and safety information. As such, a Section 8(e) violation constitutes a "continuing violation" for statute of limitations purposes. Thus, the period of limitations for a Section 8(e) violation commences anew each day that the information is not reported to U.S. EPA.

Please click here to read a copy of the EAB's March 13, 2015 decision.