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June 2015

May 2015

EPA Denies Request to Ban Trisclosan

PictureBy E. Lynn Grayson

 

EPA has denied the January 14, 2010 petition submitted by the Food & Water Watch and Beyond Pesticides to ban the antimicrobial pesticide triclosan. The petition requested that EPA take the following regulatory actions:

  • Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA): (1) reopen the Reregistration Eligibility Decision (RED); (2) issue a notice of cancellation of the registrations of all products containing triclosan; and (3) concurrently issue an emergency order to immediately suspend the existing triclosan registrations.

  • Clean Water Act (CWA): (1) impose technology-based effluent limitations; (2) establish healthbased toxic pollutant water quality pretreatment requirements; and (3) impose biosolids regulation for triclosan.

  • Safe Drinking Water Act (SDWA): conduct a comprehensive assessment of the appropriateness of regulating triclosan under SDWA.

  • Endangered Species Act (ESA): (1) conduct a biological assessment; and (2) engage in consultation with the Secretary of the Interior and the Secretary of Commerce.

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Final Version of Controversial Clean Water Rule Announced: Does EPA Have Jurisdiction Over Your Ditch?

Dirtroad

Torrence_Allison_COLORBy Allison A. Torrence

 

On May 29, 2015, the Obama administration released the final version of its highly controversial Clean Water Rule. President Obama declared that the new rule “will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.” Republicans do not agree with the President’s sentiment, as was quickly made clear by House Speaker John Boehner, who sees the Clean Water Rule as “a raw and tyrannical power grab that will crush jobs.”

The main point of the Clean Water Rule is to define the scope of waters protected under the Clean Water Act (CWA). If a water is protected under the CWA, any person who discharges pollutants into that water needs a CWA permit. Likewise, operations that would dredge or fill a water under CWA jurisdiction also need permits.

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Back to the Future: EIA’s Analysis of EPA’s Clean Power Plan Concludes that Power Sector CO2 Emissions May Drop to 1980s Levels

Bandza_Alexander_COLORBy Alexander J. Bandza

 

In June 2014, EPA issued its proposed Clean Power Plan to regulate CO2 emissions from existing power plants under section 111(d) of the Clean Air Act.  The Clean Power Plan proposes to limit carbon emissions from existing fossil fuel-fired electric generating units, including steam generating, integrated gasification combined cycle, or stationary combustion turbines operating or under construction by January 8, 2014.  In August 2014, Representative Lamar Smith requested that the U.S. Energy Information Administration (EIA) analyze the effects of the Clean Power Plan on, among other things, greenhouse gas emissions, electric markets, and coal plants retired.

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EPA Revises Its Regulatory Agenda, A Flurry of Activity Expected in the Next Few Months

Bandza_Alexander_COLORBy Alexander J. Bandza

 

Last week, the EPA-specific listing on the website of the Office of Information and Regulatory Affairs was updated with timelines on the EPA’s regulatory efforts.   Of potential interest, in chronological order of expected release, are the following rules:

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New Jersey Assembly Unanimously Passes Bill Broadly Allocating Liability and Damages for Hazardous Substance Discharges from Offshore Drilling Platforms

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Bandza_Alexander_COLORBy Alexander J. Bandza

 

Last week, the New Jersey Assembly unanimously passed a bill, A4258, which is notably broad in its language on allocating liability and damages for releases of hazardous substances from offshore drilling platforms.  The bill would supplement N.J.S.A. 58:10-23.11, the New Jersey Spill Compensation and Control Act, which defines hazardous substances to include petroleum and petroleum products.  The bill sets out that potentially liable parties include “[a]ny person who discharges a hazardous substance from a drilling platform” or “is in any way responsible for a hazardous substance that is discharged from a drilling platform.”  (Emphasis added.)  This discharge need not occur within the jurisdiction of New Jersey so long as the hazardous substance eventually “enters the waters of the State.”  Persons that meet the above two conditions are “strictly, jointly and severally [liable], without regard to fault,” for:

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EPA Lacks Authority to Regulate Plastic Microbeads in Water

Grayson_Lynn_COLORBy E. Lynn Grayson

 

Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to  regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.

According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.

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New Report Confirms Environmental Sustainability is Good Business

Grayson_Lynn_COLORBy E. Lynn Grayson

 

A new study released by Morgan Stanley confirms that investors appear to place a premium on sustainability yet believe that sustainable investments require some financial sacrifice. Two key findings include: 1) nearly three-quarters (72%) of those surveyed believe that companies with good environmental, social, and governance (ESG) practices can achieve higher profitability and are better long-term investments; and 2) 54% believe that sustainable investing involves a financial trade off.

The study set out to analyze potential performance and risk differences between sustainable and traditional investments. A range of studies on sustainable investment performance were reviewed along with performance data for 10,228 open-ended mutual funds and 2,874 Separately Managed Accounts (SMAs) based in the U.S.  Through the review, Morgan Stanley concluded that investing in sustainability has usually met, and often exceeded, the performance of comparable traditional investments. Specific findings include:

  1. Sustainable equity mutual funds met or exceeded the median return of traditional equity funds for 64% of the time periods examined.
  2. Sustainable equity mutual funds also had equal or lower median volatility for 64% of the time periods examined.
  3. For the longest time period (seven years trailing, 2008-2014), sustainable equity mutual funds met or exceeded median returns for five out of six different equity classes examined (for example, large-cap growth).
  4. Long-term annual returns of the MSCI KLD 400 Social Index, which comprises firms scoring highly on environmental, social, and governance (ESG) criteria, exceeded the S&P 500 by 45 basis points between its inception in 1990 to the end of 2014.

The study was conducted by the Morgan Stanley Institute for Sustainable Investing. The Institute seeks to accelerate mainstream adoption of sustainable investing by developing industry-leading insights and scalable finance solutions to address global challenges.

Minnesota House and Senate Each Pass Bills Banning The Sale and Manufacture of Products Containing Plastic Microbeads

Bandza_Alexander_COLORBy Alexander J. Bandza

 

"Microbeads" are synthetic microspheres widely used in cosmetics, skin care and personal care products, which are added as exfoliating agents.  Public interest groups have expressed concern that, because wastewater systems may be unable to filter microbeads from effluent released into public waterways, microbeads are entering the marine food chain.  This week, the Minnesota House and Senate each passed bills that would ban the manufacture and sale of products containing plastic microbeads. 

Both bills contain the same phased timeline:

  • Effective December 31, 2018, no one can sell personal care products containing synthetic plastic microbeads, but persons can continue selling over-the-counter drugs containing synthetic plastic microbeads.  However, that same day, no one can manufacture for sale over-the-counter drugs that contains synthetic plastic microbeads. 
  • Effective December 31, 2019, no one can sell over-the-counter drugs containing synthetic plastic microbeads.

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CO2 Levels Cross Symbolic Threshhold

Siros_Steven_COLORBy Steven M. Siros

 

According to recently released data from the National Oceanic and Atmospheric Administration (NOAA), the monthly average carbon dioxide concentration in the atmosphere now exceeds 400 parts per million (ppm). Although this isn't the first time that the threshold had been exceeded, with observational sites in the Arctic observing exceedances in the spring of 2012 and at NOAA's Mauna Loa Observatory in 2013, this is the first time that the average has exceeded 400 parts per million on a global basis. Carbon dioxide emissions are expected to stay above this threshold through at least May, when atmospheric concentrations of carbon dioxide typically peak.

Although the consequences of climate change are not expected to change dramatically now that carbon dioxide levels exceed 400 ppm, according to Dr. Pieter Tans, who leads NOAA's Carbon Cycle Greenhouse Gases Group, passing 400 ppm is a significant milestone as it illustrates how much human activity has contributed to carbon dioxide levels. The fact that this symbolic threshold has now been eclipsed may also bring additional pressure to bear on world leaders when they get together at the 2015 United Nations Climate Change Conference in Paris in December 2015.

Please click here to go to NOAA's Earth System Research Laboratory's website.

Energy Efficiency Improvement Act of 2015

Boike_Kristen_COLORBy Kristen M. Boike

 

President Obama signed the bipartisan Energy Efficiency Improvement Act of 2015 on April 30, 2015 (the “Act”), which encourages energy and water efficiency through a variety of measures.  Authored by U.S. Senators Rob Portman, an Ohio Republican, and Jeanne Shaheen, a New Hampshire Democrat, Bill S. 535 was passed by the Senate on March 27, 2015 and by the House on April 21, 2015.

The Act is comprised of three separate sections: the Better Buildings Act of 2015, Grid-Enabled Water Heaters, and Energy Information for Commercial Buildings, and includes, among other things, the following:

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EPA Request for Public Comments on 1,4-Dioxane

Grayson_Lynn_COLORBy E. Lynn Grayson

 

On April 28, 2015, EPA announced the availability of a problem formulation and initial assessment document for the Work Plan Chemical 1,4-Dioxane and opened a 60-day public comment period until June 29. The notice also seeks input on EPA's Office of Pollution Prevention and Toxics' (OPPT) initial concerns about the industrial solvent 1,4-Dioxane.

Following receipt of comments on the problem formulation and initial assessment document and consideration of any additional data or information received, EPA will initiate a risk assessment which is the process to estimate the nature and probability of adverse health and environmental effects in humans and ecological receptors from chemical contaminants that may be present in the environment.

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