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EPA Announces Smart Sectors Program to Ease Regulatory Burden on Industry

Torrence_jpgBy Allison A. Torrence

US EPAOn September 26, 2017, EPA announced its new Smart Sectors program, a program aimed at easing the regulatory burden on industry. The official notice for this program was published in the Federal Register on September 26th (82 FR 44783), with a correction published on September 29th (82 FR 45586). EPA explained the purpose behind the Smart Sectors program in the notice:

EPA’s Smart Sectors program will re-examine how EPA engages with industry in order to reduce unnecessary regulatory burden, create certainty and predictability, and improve the ability of both EPA and industry to conduct long-term regulatory planning while also protecting the environment and public health.

EPA has initially identified 13 sectors of industry to work with under this program, based on each sector’s potential to improve the environment and public health:

Continue reading "EPA Announces Smart Sectors Program to Ease Regulatory Burden on Industry" »

Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14

Torrence_jpgBy Allison A. Torrence

On Thursday, September 14th, from 5 pm to 7 pm, environmental attorneys and professionals will come together for a networking reception at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. This is the third year Jenner & Block has hosted this event, which continues to grow every year. Jenner & Block will be joined by a number of bar associations and organizations:

  • CBA Environmental Law Committee
  • CBA Young Lawyers Section Environmental Law Committee
  • ISBA Environmental Law Section
  • ABA Section of Environment, Energy, and Resources
  • Air & Waste Management Association Lake Michigan States Section
  • DRI Toxic Tort and Environmental Law Committee

Jenner & Block partner Allison Torrence is a former Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.

Details for this event are below. If you would like to join us at this reception, please RSVP here.

Environmental Attorney Reception

September 14, 2017 | 5:00 pm to 7:00 pm

Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654

RSVP

Reception Sponsors:

Sponsors

Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program

Jenner Block logo

Grayson

 

By E. Lynn Grayson 

Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.

Program Details:

When: Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.

Where: Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center 

For more information about the program and to RSVP, please connect here.

Scott Pruitt Confirmed by Senate to Lead EPA

EPATorrence_jpgBy Allison A. Torrence

Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.

As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.

Continue reading "Scott Pruitt Confirmed by Senate to Lead EPA" »

Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know

Torrence_Allison_COLOR By Allison A. Torrence

 

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.

 

Are Stricter U.S. EPA Pesticide Registration Reviews on the Table for 2016?

Bees-007  Siros_Steven_COLORBy Steven M. Siros

 

 

In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees.  Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations.  In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban.  In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed.  U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions.  In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016. 

These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA).  Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.

 

U.S. EPA Releases 2015 Enforcement Statistics

Siros_Steven_COLORBy Steven M. Siros  Usepa

 

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.

 

 

Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology

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 By Allison A. Torrence

 

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Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.

The full article is available here.

Corporate Environmental Lawyer celebrates five years of blogging with a new design!

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:

  1. Mobile and tablet responsive technology
  2. A trending-categories cloud list
  3. Easy-to-use social sharing buttons
  4. Streamlined navigation menus

  5. 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.

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.

Continue reading "EPA Denies Request to Ban Trisclosan" »

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.

Continue reading "EPA Lacks Authority to Regulate Plastic Microbeads in Water" »

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.

Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee

Siros_Steven_COLORBy Steven M. Siros

 

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:

Continue reading "Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee" »

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/.

California Seeks to Amend Proposition 65

Siros_Steven_COLORBy Steven M. Siros

 

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.

Another Criminal Conviction Under the Migratory Bird Treaty Act for Wind Farms

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By E. Lynn Grayson

 

PacifiCorp Energy has agreed to pay $2.5 million to settle charges arising from bird deaths at two of its wind farms located in Wyoming. PacifiCorp pled guilty in Wyoming federal court to two misdemeanor violations of the Migratory Bird Treaty Act and was sentenced to five years' probation. The company also agreed to institute a compliance program to prevent bird deaths at the utility's four commercial wind farms in Wyoming.

According to allegations, the company failed to make all reasonable efforts to build projects in a way that would avoid risk of bird deaths by collision with turbine blades consistent with guidance finalized by the Fish & Wildlife Service in 2012. The Migratory Bird Treaty Act violations were charged following discovery of the carcasses of 38 golden eagles and 336 other protected birds at the company's Seven Mile Hill and Glenrock/Rolling Hills wind farms in Carbon and Converse counties.

This is the second prosecution of wind farm owners and operators under the Migratory Bird Treaty Act. Duke Energy was convicted last year in similar charges flowing from bird deaths at two of its wind farms also located in Wyoming. See "First Criminal Conviction Under the Migratory Bird Treaty Act for Wind Farm" blog we posted on November 26, 2013.

These are very troubling cases that pit environmentalists against clean energy advocates. While wind farm energy is highly sought after in the U.S., it is clear there is an increased scrutiny on the utilities that operate these wind projects to ensure that construction, design and operation of these wind farms are protective of birds. In many ways, this seems like an almost impossible achievement for companies.


TSCA Reform Dead for 2014?

Siros_Steven_COLORBy Steven M. Siros

 

Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014.  On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate.  Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a  confidential draft version of the TSCA reform bill that was still being negotiated.  According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith.  In contrast, Senator Boxer has released our confidential proposal to the press.  That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement.  As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.

Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations.  Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment." 

Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council.  In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.

Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions

Bandza_Alexander_COLORBy: Alexander Bandza

 

As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.  The electronic (PDF) versions of these chapters are now available online:

The entire publication is available from IICLE here.

Happy Earth Day - 2014

By: Robert L. Graham and E. Lynn Grayson

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.

Robert L. Graham (rgraham@jenner.com) and E. Lynn Grayson (lgrayson@jenner.com), Co-Chairs, Environmental, Workplace Health and Safety Practice Group

IICLE Releases New Environmental Law Publication

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By: E. Lynn Grayson

 

The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.

According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.

The following chapters in this publication were authored by Jenner & Block EHS lawyers.

* * *

Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago

Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago

 * * *

Chapter 5 – Illinois Environmental Forums
Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago

 * * *

Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago

The publication is available from IICLE at http://iicle.inreachce.com/.

 

 

 

 

 

Certain Pesticides Fail New U.S. EPA Screening Guide for Volatilization Risks

Siros_Steven_COLORBy: Steven M. Siros

 

On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides"This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.

U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.

In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.

U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.


Lawsuit Seeks To Compel U.S. EPA Disclosure Of Pesticide Inert Ingredients

Siros_Steven_COLORBy: Steven M. Siros

 

On March 5, 2014, several environmental groups filed a lawsuit against U.S. EPA seeking to compel the public disclosure of "inert" ingredients in pesticide products. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), pesticide manufacturers are obligated to list "active" ingredients. However, "inert" ingredients are not currently subject to the same disclosure requirements as "active" pesticide ingredients. According to the lawsuit, U.S. EPA has authority under FIFRA to also require the disclosure of "inert" ingredients which can comprise a significant percentage of a pesticide product's formulation.

As set forth in the complaint, in August 2006, a coalition of public health and environmental organizations submitted a petition requesting that U.S. EPA require the disclosure of certain "inert" chemicals used in pesticide products. In December 2009, U.S. EPA initiated an advanced notice of proposed rulemaking that would have required this disclosure. However, U.S. EPA has taken no further action with respect to this advance notice. The lawsuit seeks to compel U.S. EPA to either complete its proposed rulemaking or otherwise take action with respect to the pending petition.

Please click here to see a copy of the complaint.


Green Climate Fund Board Makes Key Decisions On Operations

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling

 

Last week, the Board of the Green Climate Fund (the "Fund") met in Bali, Indonesia. The Fund was designated as an operating entity of the financial mechanism of the United Nations Framework Convention on Climate Change ("UNFCCC"). The Fund's purpose is to promote, within the context of sustainable development, the "paradigm shift towards low-emission and climate-resilient development pathways by providing support to developing countries to help limit or reduce their greenhouse gas emissions and to adapt to the unavoidable impacts of climate change." The United States and other industrialized countries at the 2009 climate summit in Copenhagen pledged $100 billion a year to the Fund—from public and private sources—as climate aid beginning in 2020.

During the three-day meetings in Bali, the Fund's Board members agreed, among other things, that the Fund will aim for a 50:50 balance between mitigation and adaptation efforts and designate 50% of adaptation funding for "particularly vulnerable countries," including least developed countries, small island developing states and African states. The Board of the Fund also determined that it will maximize engagement with the private sector and be a leader on "gender mainstreaming" and will define its gender action plan in October 2014. Click here for a link to the press release.

EPA 2013 Enforcement Results: Higher Penalties With Fewer Enforcement Proceedings

Siros_Steven_COLORBy:  Steven M. Siros

 

U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA. 

U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters. 

Please click here to go to U.S. EPA's 2013 enforcement results website. 

EPA Proposes Increased Oversight Of State Enforcement Activities

Siros_Steven_COLORBy Steven M. Siros

 

U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.

The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.

In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.

The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing  environmental laws.