Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
- Issues relating to the Corps’ jurisdiction under the Clean Water Act;
- Fallout under the Safe Drinking Water Act after Flint;
- U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
- Status of TSCA reform efforts;
- Litigation relating to GMOs under FIFRA;
- RCRA waste regulation amendments;
- OSHA penalty updates;
- U.S. EPA challenges;
- Water scarcity and sustainability; and
- Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
Yesterday evening, the Department of Health and Human Services designated Dr. Nicole Lurie, an agency assistant secretary, to lead the federal government’s response to the elevated lead levels allegedly found in the drinking water being provided by the City of Flint, Michigan, to its residents. This designation came on the heels of a meeting between Flint’s mayor and Valerie Jarrett in Washington, D.C. The federal government has elected to play a significant role in addressing this crisis, with President Obama signing an emergency declaration on Saturday which provided Flint with access to up to $5 million in federal funds. The crisis began in 2014 when Flint stopped getting water from Detroit and began obtaining its drinking water from the Flint River in an effort to lower costs.
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
World leaders and delegates from over 150 nations have converged in Paris, France for the United Nations Climate Change Conference (also referred to as COP21). The conference, which is scheduled to run from November 30th through December 11th, has as its goal achieving a legally binding agreement intended to limit greenhouse gas emissions in order to ensure that global average temperatures do not increase in excess of two degrees Celsius over pre-industrial global temperatures.
Leaders of both the United States and China addressed the conference attendees. President Obama noted that recent economic growth in the United States has come despite a lack of growth in carbon emissions, proving that climate advancements need not come at the expense of the economy or individual livelihoods. Chinese President Xi Jinping struck a somewhat different tone, saying that the conference "is not a finish line, but a new starting point" and that "any agreement must take into account the differences among nations” and that “countries should be allowed to seek their own solutions, according to their national interest."
Prior to the conference, countries had voluntarily submitted climate action plans referred to as Intended Nationally Determined Contributions (“INDCs”) that are intended to form the basis for any agreement that might be reached over the next two weeks. According to the United Nations Secretary General, more than 180 countries have submitted their INDCs which covers almost 100% of global greenhouse gas emissions. However, in order to reach the above-referenced goal of less than a two degree temperature increase, the Secretary General noted that developed countries would need to be prepared to expend $100 billion dollars by 2020. What if anything the developing countries would need to contribute is much more nebulous but is a topic that is certain to be discussed at the conference.
We will continue to blog on COP21 over the next several weeks while the conference is in session.
A Jenner & Block team including Partner Gabrielle Sigel and Associate Alexander Bandza of the Firm’s Environmental and Workplace Health & Safety group, supported by Partner Jessica Ring Amunson and Associate Amir Ali of the Firm’s Washington, D.C. office, won a significant victory in federal court environmental and pipeline litigation on behalf of clients Apex Oil Co., Inc. and Petroleum Fuel & Terminal Co. (PF&T). Apex and PF&T are defendants in a cost recovery and injunction action brought against them by Chevron U.S.A. Inc. in the U.S. District Court for Maryland. Chevron’s lawsuit concerns a pipeline that PF&T purchased from Chevron in 1994. Chevron has claimed more than $30mm in damages for costs of remediating pollution allegedly caused by discharges from the pipeline over the course of approximately 20 years.
U.S. EPA Releases One-Week Internal Review on the Colorado Mine Blowout, Concludes the Incident Was “Inevitable”
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.
On August 5, 2015, contractors working for U.S. EPA at the Gold King Mine near Durango, Colorado, triggered the release of more than 3,000,000 gallons of highly contaminated water into the Animas river. More specifically, U.S. EPA contractors were in the process of conducting an investigation of the Gold King Mine to assess on-going water releases from the mine. While excavating materials around the entrance to the mine, loose material gave way allowing water from the closed mine to spill into the nearby river. As of Sunday afternoon, the mine continued to discharge approximately 500 gallons per minute although U.S. EPA notes that the polluted water is being contained and treated in two ponds near the site.
The release has resulted in a visible plume that extends almost 80 miles down the Animas River. According to preliminary water quality tests, arsenic levels in the Animas River are more than 300 times normal levels and lead had peaked at 3,500 times normal levels. U.S. EPA is working cooperatively with Region 6 and Region 9 and the states of Colorado, New Mexico, Utah and the Southern Ute tribe to address the contamination in the Animas river. The Navajo Nation, however, has declared an emergency and shut down its drinking water systems that rely upon water from the Animus river. Navajo President Russell Begaye has already indicated that the Navajo Nation intends to sue U.S. EPA for damage to the Navajo Nation’s natural resources. In addition, Colorado Governor John Hickenlooper has declared a disaster emergency for the Animas river which makes $500,000 from Colorado's Disaster Emergency Fund eligible to be used to remediate the contamination.
It is unknown at this time what long-term impacts this release might have on the Animas river which ultimately discharges into the San Juan and Colorado rivers. U.S. EPA has acknowledged that metals are likely to settle down to the bottom of the river bed and long-term monitoring will be required.
Cross-border pipelines have been the subject of much controversy, primarily related to the highly-publicized Keystone pipeline. Despite a flurry of legislative activity earlier this year, the fate of the Keystone pipeline that would expand Canadian oil distribution to the U.S. remains uncertain.
The State Department approved the transfer of ownership of the Express Pipeline to Spectra Energy Partners. This pipeline runs from Hardisty, Alberta, Canada to Casper, Wyoming. The permit allows Spectra to connect, operate, and maintain the existing pipeline facilities at the U.S.-Canada border to transport crude oil.
The State Department also approved the transfer of ownership of a pipeline running from El Paso, Texas to the Rio Grand River on the U.S.-Mexico border to Magellan Pipeline Company. The permit allows Magellan to connect, operate, and maintain existing pipeline facilities at the U.S.-Mexico border to transport liquid petroleum products.
In addition to the Keystone pipeline controversy, cross-border pipelines in general are the subject of significant public and regulatory scrutiny. Another recent example is the Alberta Clipper pipeline from Hardisty, Alberta, Canada to Superior, Wisconsin, where the State Department was accused of accelerating pipeline approval from Enbridge Energy—facts now at issue in litigation filed by a coalition of environmental groups opposed to the pipeline.
EPA’s Safer Choice program (formerly Design for the Environment) recognizes products that meet stringent ingredient and product level criteria. Safer Choice products do not contain carcinogens or reproductive or developmental toxins. The program helps consumers and commercial buyers identify and select products with safer chemical ingredients without sacrificing quality or performance.
According to EPA, there are over 2,000 products that currently qualify for the Safer Choice label. This summer, EPA’s new Safer Choice labels began appearing on consumer products such as household soaps and cleaners. To qualify for the Safer Choice label, a product must meet stringent human and environmental health criteria.
In the first year of the Safer Choice Partner of the Year awards, the Chicago/Region V area has more winners than any other part of the country. Local award winners include: AkzoNobel/Chicago; ISSA, The Worldwide Cleaning Industry Association/Northbrook; Jelmar, LLC/Skokie; Loyola University Chicago, Institute of Environmental Sustainability/Chicago; and Stepan Company/Northfield. Nationwide, 21 entities won EPA Safer Choice Partner of the Year awards. EPA confirms there are nearly 500 formulator-manufacturer partners that make more than 2,000 products for retail and institutional customers.
More information about the Safer Choice program is available at http://www2.epa.gov/saferchoice.
Pope Francis this week is visiting Ecuador and has called for increased protection of the Amazon rain forest and in general has made environmental protection a central theme in his comments. Pope Francis noted, “The tapping of natural resources, which are so abundant in Ecuador, must not be concerned with short term benefits. As stewards of these riches which we have received, we have an obligation towards society as a whole, and towards future generations.”
Read more about Pope Francis’ visit and environmental issues in Ecuador in the New York Times article by Jim Yardley.
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
- Mobile and tablet responsive technology
- A trending-categories cloud list
- Easy-to-use social sharing buttons
Streamlined navigation menus
- Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
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.
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:
- Sustainable equity mutual funds met or exceeded the median return of traditional equity funds for 64% of the time periods examined.
- Sustainable equity mutual funds also had equal or lower median volatility for 64% of the time periods examined.
- 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).
- 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.
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.
At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee. Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.
Several of these key changes include:
On Friday, April 17th, Jenner & Block partnered with ComEd and Exelon to clean up the 12th Street beach at Northerly Island, in cooperation with the Alliance for the Great Lakes. Our group picked up over 85 pounds of broken glass, plastic beverage containers, food wrappers, cigarettes, and other miscellaneous trash and debris.
The Adopt-a-Beach program is the premier volunteer initiative for the Alliance for the Great Lakes. Teams remove litter and enter results into the Adopt-a-Beach online system to share with local beach authorities, educate the public, and improve the beaches and the health of the Great Lakes.
This picture shows our team after clean up efforts at 12th Street beach:
What will you do to celebrate Earth Day 2015? How about participating in the Adopt-a-Beach program?
To learn more about beach clean up opportunities or to schedule an event, visit http://www.greatlakes.org/.
A special thanks to our own Gay Sigel for organizing the Jenner & Block team. Thanks, Gay!
While much progress has been made in the U.S. to address water quality since the first Earth Day in 1970, increasingly the critical issue of the day is water quantity and specifically sufficient availability of safe water for everyone. According to the World Water Council, 1 in 9 people in the world, or approximately 750 million individuals, lacks access to safe water. In January 2015, the World Economic Forum identified water scarcity as the #1 global risk based upon possible impact to society. These issues exist worldwide, including throughout the U.S.
This month, California Governor Jerry Brown announced the state's first-ever mandatory effort to cope with four years of the worst drought in California's history including a 25% use reduction on cities and towns. There are 5 things you need to know about California's water situation, according to National Geographic's ongoing research and study of water scarcity issues in the Western U.S.:
- The state (and much of the West) relies heavily on snowpack each winter to resupply surface water streams and lakes. Because of a lack of winter storms and record high temperatures this past winter, snowpack in California is at an all-time low. This is the fourth consecutive year that the snowpack has been below normal. The state's hydropower supply is also threatened when snowpack is scarce.
- When surface water supplies are low, hidden water supplies beneath the surface in aquifers, or groundwater, are drilled to make up the shortfall. A large aquifer under the Central Valley is being rapidly depleted to make up for shortfalls in surface water supply. A 2011 study indicated that the Central Valley Aquifer is losing an amount of water each year equivalent to the nearly 29 million acre-feet of water found in Lake Mead, the nation's largest surface reservoir on the Colorado River. (An acre-foot is one acre of ground covered one foot deep in water.) California for the first time last year passed legislation regulating groundwater use, but those restrictions will not come into effect for years.
- While the 25 percent water use restrictions announced last week are intended to help reduce demand, most of the water in California is used for farming, which was largely not included in Brown's announcement on restrictions. California's farms produce and export fruits and vegetables, hay for livestock, and meat and dairy products. Surface water for farms is allocated from state and federal water projects. Water supply restrictions for farmers may be announced soon by the state, but farmers have been drilling groundwater to compensate for surface supply shortages. Last week's rules require only that agricultural operations improve their reporting of water use to the state.
- California is not the only state in the West facing water supply issues. Winter snowpack in Oregon and parts of Washington was far below normal. The Colorado River Basin, which supplies water to Phoenix, Las Vegas, Los Angeles, and San Diego, has also been in a drought for more than a decade, and the river basin's aquifers have been declining, too.
- When California faced a major drought in the late 1970s, fewer than 20 million people lived in the state. Now nearly 40 million live there. While Californians have drastically improved the efficiency of their water use in recent years, if rain and snow do not arrive later this year, the supply of groundwater—much of which is non-renewable—will continue to decline as it is used to make up for surface shortages.
The good news is there are two technical advancements that are currently available to mitigate water scarcity issues—one more mainstream and the other yet to be a "politically correct" option given public perceptions:
- Desalination—this age old process of converting seawater to drinking water is gaining in popularity despite costs and energy demands. A $1B plant is near completion by Poseidon Resources in Carlsbad, CA and will be the largest desalination plant in the Western Hemisphere. 13-15 plants are proposed for California between Los Angeles and San Francisco. There are 300 plants in the U.S. today and over 12,500 plants worldwide, particularly in the Middle East.
- Janicki Bioenergy's Omni Processor—the Bill and Melinda Gates Foundation has invested in this low cost, hyper-efficient sewage treatment plant which produces clean drinking water that meets both FDA and World Health Organization standards AND generates the very energy it requires to run. Janicki Bioenergy, based in Seattle, WA, has a prototype operating in Washington State and this year enters the developing world with a plant in Dekar, Senegal. Here's how it works:
- The sewage sludge is fed into the plant by conveyor belt and dried in a tube that separates solid waste from water. The Omni Processor's intensely hot incinerator reaches 1,000 degrees Celsius, scorching enough to kill all pathogens and, perhaps more important for those living downwind, to operate without the expected offensive smell.
- Converted into vapor, the water is spun in a centrifuge to remove remaining particles and then fed through two layers of filters. Next, it is cooled and condensed, at which point it is filtered one more time. The latest model can yield 86,000 liters of pure drinking water each day.
- The remaining solids are then fed into an incinerator, yielding a high-powered steam that drives a generator, which in turn produces the very electricity that runs the plant (the Dakar unit produces 150 kW per day), plus excess energy that can be diverted back to the surrounding community. Another byproduct is a phosphorus-rich, disease-free ash that can be used as fertilizer. And the circle of life continues.
While some solutions exist, water remains a precious natural resource and there is no alternative. Every sector of society needs to do their part to conserve, protect and restore water resources in conjunction with governmental action to regulate quality concerns, improve infrastructure and water distribution systems, and address use limitations when appropriate.
For more information about water security, recent developments, and ongoing efforts to ensure the availability of access to safe water for everyone, visit Water.org at http://water.org or World Water Council at http://worldwatercouncil.org/.
On October 5, 2012, President Obama signed into law the Hazardous Waste Electronic Manifest Establishment Act (PDF), which authorizes the EPA to implement a national electronic manifest system. Commonly referred to as "e-Manifest," this national system is envisioned to be implemented by the EPA in partnership with industry and states.
EPA issued the e-manifest final rule, effective August 6, 2014, authorizing the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (79 Fed. Reg. 7518, February 7, 2014). The modification will provide waste handlers with the option to complete, sign, transmit, and store manifest information electronically in the electronic system. States that currently receive and collect paper manifest copies will receive copies of manifest data electronically from the system.
EPA Connect, the Agency's official blog, provided some updates this week on the status of the e-Manifest implementation process. EPA reported that an important next step is to establish the initial fee structure for users of the system. EPA is working with states and stakeholders to create this fee proposal. According to the blog, EPA anticipates the proposed rule establishing the fee model for the system to be available for public comment by May 2016.
When implemented, EPA estimates this rule will impact 160,000 entities in at least 45 industries that ship off-site, transport, or receive approximately 5.9 million tons of RCRA hazardous wastes annually. These entities currently use between 4.6 and 5.6 million EPA Uniform Hazardous Waste Manifests.
Further insights and regulatory developments are detailed at http://www.epa.gov/osw/hazard/transportation/manifest/e-man.htm.
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/.
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:
- Water is health – clean hands can save your life.
- Water is nature – ecocystems lie at the heart of the global water cycle.
- Water is urbanization – every week one million people move into cities.
- Water is industry – more water is used to manufacture a car than fill a swimming pool.
- Water is energy – water and energy are inseparable friends.
- Water is food – to produce two steaks, you need 15,000 liters of water.
- Water is equality – every day women spend millions of hours carrying water.
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.
The Consumer Product Safety Commission (CPSC) is seeking $7M to establish a nanotechnology center and proposes to create a five year interagency agreement with the National Science Foundation and a learning center or university to house the center. The proposed "Center for Consumer Product Applications and Safety Implications of Nanotechnology" would be a consortium of scientists tasked with researching methods to quantify and characterize the presence, release and mechanisms of consumer exposure to nanomaterials from consumer products.
Nanotechnology is the manipulation of matter on an atomic, molecular and supramolecular scale. While there is some controversy over the correct definition, nanomaterials generally are characterized by their tiny size, measured in nanometers. A nanometer is one millionth of a millimeter—approximately 100,000 times smaller than the diameter of a human hair. While nano-sized particles exist in nature, there is growing concern over the increased use of and impacts from engineered nanomaterials present in many commercial, industrial and consumer products—most nanoscale materials are too small to be seen with the naked eye or even with conventional lab microscopes, according to the National Institute of Environmental Health Sciences.
According to the CPSC, the Woodrow Wilson International Center for Scholars issued a 2008 report evaluating the CPSC's role in nanotechnology. The report concluded that nanotechnology is used in all of the categories that CPSC regulates including toys and baby products, sports and fitness equipment, home improvement and garden equipment, clothing, appliances, computers and other electronic devices. The Wilson Center has established a Consumer Products Inventory identifying over 1,800 consumer products that contain nanomaterials.
Even though the CPSC is attempting to take a more proactive approach to nanotechnology, it is believed by many that the CPSC is behind the curve in analyzing the impacts of nanomaterials in consumer goods, particularly those associated with children's products. All agree the launch of the new nanotechnology center would be an important step for the CPSC assuming the necessary funding can be secured.
The CPSC has been active in developing agreements with other agencies to address issues related to nanotechnology and is a member of the National Nanotechnology Initiative—a group of 25 government agencies that have committed resources for the completion of nanotechnology research to assess environmental, health and safety concerns and related data gaps.
On January 12, 2015, California's Office of Environmental Health Hazard Assessment ("OEHHA") proposed modifications to California's controversial Proposition 65 regulations. As any company that does business in California should know, Proposition 65 requires that a warning be provided for any product that contains one of hundreds of chemicals identified on the Proposition 65 list if there is any risk of a person being exposed to the listed chemical above a specified threshold. As a result, one is bombarded with Proposition 65 warnings from the point one disembarks onto the jet bridge until the time one arrives at his/her hotel and orders room service. OEHHA's proposed amendments to Proposition 65 appear to do little to ease the regulatory burden on companies that do business in California and/or minimize the burden of having to read all of the Proposition 65 warnings.
Overview of Proposed Changes
Warnings Must Now Identify Specific Chemicals: OEHHA has listed the following 12 chemicals which must be identified by name in any Proposition 65 warning: Acrylamide; Arsenic; Benzene; Cadmium; Carbon Monoxide; Chlorinated Tris; Formaldehyde; Hexavalent Chromium; Lead; Mercury; Methylene Chloride; and Phthalates.
Modified "Safe Harbor" Language: In order to avail oneself of the "safe harbor" warning, the warning must state that a product "can expose you" to a chemical or chemicals as opposed to the old "safe harbor" language that merely required that the warning state that the product "contains a chemical" that is known to the State to cause cancer or reproductive toxicity. In addition, for the following consumer products and services, specific warnings would be required: food and dietary supplements; alcoholic beverages; restaurant foods and non-alcoholic beverages; prescription drugs; dental care; furniture; diesel engine exhaust; parking facilities; amusement parks; designated smoking areas; petroleum products; service station and vehicle repair facilities.
New Lead Agency Website: The proposed regulations would also create a new section on the OEHHA website that would provide detailed information on products and exposures. OEHHA would also have the authority to request that businesses provide more detailed information, including estimated levels of exposure for listed chemicals.
Limited Responsibility for Retailers: Retailers would be relieved from Proposition 65 liability in most circumstances and the responsibility for providing the requisite Proposition 65 warning would fall squarely on the manufacturer, distributer, producer and/or packager.
OEHHA will be accepting written comments on the proposed changes until April 8, 2015. Not surprisingly, OEHHA's proposed regulations have not been warmly received by industry and it is expected that affected businesses and trade associations will be submitting comments in opposition to these proposed amendments. Please click here and here to see the text of the proposed amendments.
On December 12, 2014, the Senate approved H.R. 3979, the National Defense Authorization Act for FY 2015. Buried in this bill are provisions that provide CERCLA immunity to the United States for three parcels of property that are being transferred to municipalities in Idaho and Nevada. The parcels at issues are being transferred from the United States Department of the Interior. Although the United States Environmental Protection Agency ("U.S. EPA") has generally opposed legislation that would exempt the United States from CERCLA liability, there is no indication that U.S EPA formally opposed the liability exemptions contained in H.R. 3979. The President signed the bill into law on December 19, 2014.
It is unclear whether the exemptions contained in H.R. 3979 represent an one-off event or are a precursor to future Congressional efforts to exempt the United States from CERCLA liability. Please click here to see a copy of H.R. 3979.