Corporate Environmental Lawyer

Compliance With FIFRA Regulations Provides Defense From Product Liability Lawsuit

By Steven M. Siros

An Indiana appellate court recently affirmed summary judgment on behalf of The Dow Chemical Company and Dow AgroSciences, LLC (collectively "Dow"), in a personal injury lawsuit premised on alleged design defect and failure to warn claims. See Gresser et al. v. The Dow Chemical Company, Inc., et al. (Ind. Ct. App. April 30, 2013). Plaintiffs purchased a home that had been treated with the pesticide, Dursban TC. Shortly after moving into the home, plaintiffs allegedly experienced adverse health impacts that they attributed to the pesticide. Plaintiffs therefore filed product liability claims against Dow and negligence claims against the pesticide applicator.

Dow filed for summary judgment, arguing (1) that the Dursban was not a defective product and (2) that plaintiffs' claims were preempted under federal law. The trial court granted summary judgment, finding that Dursban was not a defective product and that plaintiffs' claims were preempted. On appeal, the Indiana appellate court noted that Indiana's Product Liability Act ("IPLA") provides a rebuttable presumption that a product is not defective where, before the sale, the manufacturer complies with all applicable codes, standards, regulations or specifications established by an agency of the United States or Indiana. Because Dow had registered the pesticide in compliance with the applicable FIFRA regulations, the court found that Dow was entitled to a statutory presumption that its product was not defective. Plaintiffs presented no admissible evidence to rebut this presumption, and therefore, the court found that Dow was entitled to summary judgment under the IPLA.

With respect to Dow's alternative preemption argument, however, the court found that the trial court's grant of summary judgment on this ground was improper. The court cited to Dow Chemical Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001), noting that "the use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden an applicator's compliance with FIFRA."

To see a copy of this opinion, please click here.

Jenner & Block Program: “Professional Responsibility And Ethics For Environmental Lawyers” – May 8th

By E. Lynn Grayson

You are invited to join us on Wednesday, May 8, at 12:00 noon on the 45th Floor of the Chicago office for a program entitled "Professional Responsibility and Ethics for Environmental Lawyers." This professional responsibility and ethics program will focus not only on a general update of these issues but discuss legal scenarios and situations unique to environmental law practices.

Our two speakers will be: 1) Miranda K. Mandel, Loss Prevention Counsel, Attorneys' Liability Assurance Society, Inc. (ALAS); and, 2) Michael L. Shakman, Partner, Miller Shakman & Beem LLP.

Enjoy lunch, network with fellow environmental lawyers and learn what experts suggest we do to manage difficult situations that arise in our law practices.

Please forward any RSVPs to Jan Wall (jwall@jenner.com).

ELI and Jenner & Block Program: “Obama’s Second Term: Implications For Environmental Practice” – April 24th

By E. Lynn Grayson

You are invited to join us on Wednesday, April 24, at 12:00 noon on the 45th Floor of the Chicago Office, for an important luncheon program we are co-sponsoring with the Environmental Law Institute ("ELI") entitled "Obama's Second Term: Implications for Environmental Practice." This program will bring together three speakers, each of whom played a key role in environmental matters during President Obama's first term, and each of whom is very knowledgeable concerning EPA enforcement trends, emerging environmental issues, and environmental policy challenges.

The three speakers will be (1) John Cruden, currently the President of ELI, who previously served for many years as the Deputy Assistant Attorney General in charge of environmental enforcement at the Department of Justice; (2) Thomas Perrelli, Chair of the Government Controversies and Public Policy Litigation Practice at Jenner & Block, who recently returned to Jenner & Block and who previously was directly involved in environmental matters as one of the key former heads of the Justice Department; and (3) Robert Kaplan, who presently serves as Regional Counsel for Region 5 of the EPA. These speakers will share lessons learned, including what we can expect will affect business and environmental regulation during President Obama's second term.

We are privileged to partner in this program with ELI, one of the preeminent, non-partisan environmental law organizations in the country. Headquartered in Washington, DC, ELI has played a pivotal role since the early 1970s in helping to shape environmental law, policy, and management, both domestically and abroad. This program will present an insider's viewpoint on what we anticipate in environmental enforcement and regulation from the DOJ, EPA, and White House over the next four years.

Please forward any RSVPs to Elizabeth Wong (elizabethwong@jenner.com).

 

LexisNexis “Real Law” Article Addresses Water Risks

By E. Lynn Grayson

LexisNexis has posted an article "Navigating the Growing Body of Legal Issues Related to Water" in its "This Is Real Law" series. The article addresses water scarcity issues in the U.S. and discusses emerging legal implications. This special news story was published in recognition of World Water Day and the fact that the UN has declared 2013 the Year of International Water Cooperation. The "Real Law" series focuses on key topics of interest to all lawyers in their law practices.

The article may be viewed at http://www.thisisreallaw.com/hot-topics/2013/03/21/world-water-day.html.

EPA Is Seeking Public Comments On Revised Waste Analysis Guidance

By Allison  A. Torrence

The United States Environmental Protection Agency ("EPA") is seeking public comments on a revision to "Waste Analysis at Facilities That Generate, Treat, Store, and Dispose of Hazardous Wastes: A Guidance Manual." The guidance manual was last updated in 1994. The current version of the guidance manual (dated January 2013) is available here.

The manual provides guidance on how to develop and implement a Waste Analysis Plan in accordance with the Resource Conservation and Recovery Act ("RCRA"). The primary audiences for the manual are hazardous waste generators and owners/operators of treatment, storage, and disposal facilities ("TSDFs").

EPA has identified the following areas as in particular need of clarification in the revised guidance manual:

• Design of characterization studies;
• Recharacterization frequency;
• How to address issues of waste variability;
• Establishing and employing data quality objectives;
• Selection of indicator parameters to reduce testing costs;
• Measurement uncertainty; and
• Using statistical concepts to guide the characterization process.  

The EPA is inviting operating TSDFs, permit writers, trade associations, and environmental groups to provide comments on the updated guidance. EPA will accept comments through April 30, 2013. More information is available on the EPA website.

Water Scarcity Creates Opportunities For Water Services Industry

By E. Lynn Grayson

According to a recent report from Bank of America Merrill Lynch Global Research titled "A Blue Revolution – global water," some companies in the water services industry are in the strongest position to benefit from the global dynamics of water supply and demand. The global water services industry is set to double to $1 trillion dollars in annual revenues by 2020 responding to water scarcity problems.

According to the report and as commonly outlined in other recent water stress studies, water is on course to be scarcer than oil by 2030, with demand outstripping water supply by 40 percent. Close to half of the world's population will be living in water-stressed areas. The report opines that unless more sustainable water management practices are adopted, 45 percent of projected 2050 global GDP at 2000 prices could be at risk or about $63 trillion dollars.

The report highlights three themes in addressing water scarcity: 1) water treatment; 2) water management; and 3) water infrastructure and supply, addressing each as follows:

Water treatment – emerging market growth driving demand

Rising water scarcity and growing demand from agriculture, housing and industry will increase demand for water treatment. The report details how agriculture accounts for 70 percent of water use and demand is rising as diets change. As industries across emerging markets expand, their demand for water rises. Municipal and residential water use is also growing on the back of urbanization. Wastewater reuse stands at only 2.41 percent of all water withdrawals globally.

The report outlines opportunities in areas such as producing drinking water, irrigation, or returning water to the natural environment. It focuses on sectors with heavy volumes and environmental constraints (such as utilities, oil and gas, and mining), those with strict water constraints (food and beverage, cosmetics) and variable effluents (petrochemicals, energy, and breweries). The report highlights how desalination could emerge as a $25 billion industry by 2025.

Water management – smarter irrigation is key

Against the backdrop of growing water scarcity, fragmented water management and conflicting interests of stakeholders are too expensive and unsustainable in the long term. There is growing recognition that the water crisis is as much a consequence of weak policies and poor management as natural scarcity. Effective water management enables users to cut their use of water. It also mitigates the risks associated with water shortage and reduces the need for capex-intensive solutions.

With up to 60 percent of water used in agriculture wasted, smarter irrigation is essential. Household water management has huge potential – if all U.S. households installed water-saving features, the dollar-volume savings would be more than $4 billion per year. Companies involved in areas such as drought-resistant seeds and crops and smart metering are poised to benefit from appetite for water management.

Water infrastructure and supply – growing role of private finance

The report highlights the global need for water infrastructure. Developed markets need to replace crumbling and incomplete infrastructure while emerging markets need to build infrastructure for the first time. Annual water investment needs are estimated to rise to more than $770 billion for the OECD and BRICs by 2015. With public funding increasingly under financial pressure, we believe the private sector will need to play an increasingly important role.

Water infrastructure is currently a $360 billion-plus market and is registering growth of up to 6 percent in some segments. Scope for growth is especially strong in Latin America and Asia. Companies involved in engineering, construction and consulting, pipes, pumps and valves and sewage treatment will benefit.

Citing the World Resources Institute – Aqueduct Project, the report details supply-side water pressures noting these concerns are further exacerbated by a lack of freshwater, its uneven distribution, widely varying quality and emerging climate change risks. "Every region of the world…" is impacted by water scarcity.

The report provides significant data including companies at risk because of water reliance, companies with opportunities as well as countries suffering the most significant water stress, water scarcity and absolute water scarcity.

While an economic market analysis report for investors, this report provides good insight into the business, regulatory, political, social and legal issues at play related to water scarcity now and into the future. To view the report, go to http://www.merrilledge.com/Publish/Content/application/pdf/GWMOL/ABlueRevolution-globalwater.pdf.

Minnesota Bans Triclosan For State Government

By E. Lynn Grayson

Minnesota is believed to be one of the first state governments to stop buying products containing triclosan, an antibacterial commonly used in soap and cosmetics. Through its combined buying power, the state purchases about $1 million worth of cleaning products a year.

While there is uncertainty about whether triclosan is hazardous to humans, there also is no evidence that hand soaps and/or hand sanitizers containing triclosan are better than regular soap and water at preventing infections. Laboratory studies have found that triclosan may disrupt hormones, interfere with muscle function and promote the growth of stronger bacteria. In addition, there is growing concern suggesting a buildup in the environment may present risks to wildlife.

Triclosan also is known as 2,4,4'-trichloro-2'-hydroxydiphenyl ether, 5-chloro-(2,4-dichlorophenoxy) phenol, trichloro-2'-hydroxydiphenyl ether, CH-3565, Lexol 300, Irgasan.

In the environment, triclosan becomes a dioxin, a family of environmental contaminants linked to a variety of health risks, from cancer to hormone disruption, and which persist in the environment for years. They once came largely from industrial sources such as paper pulp mills and garbage incinerators, but increasingly stringent regulations have greatly reduced their emissions.

The recent study of triclosan in eight Minnesota lakes, conducted by scientists at the University of Minnesota and the Science Museum of Minnesota, found that triclosan and the dioxins it forms have increased in sediment while other kinds have decreased. In short, even though the water-treatment process removes most of the triclosan, antibacterial products are now the primary source of dioxins in the lakes and rivers.

There is growing concern about Triclosan and its impact on humans and the environment. This recent action by the State of Minnesota is the latest development for a substance that is undergoing continuing scrutiny in the United States and in other countries as well.

Illinois Working On Development Of Fracking Regulations

By Steven M. Siros

Although leases have been signed on thousands of acres of land in southern Illinois, oil and gas companies have yet to aggressively initiate hydraulic fracturing in Illinois in large part because of the absence of laws regulating that practice. That may soon change, however, in light of efforts underway in Springfield to craft comprehensive fracking rules.

The Illinois Hydraulic Fracturing Act (H.B. 25), which was introduced in the the Illinois House of Representatives on February 21, 2013, would grant the Illinois Department of Natural Resources the authority to promulgate rules and issue permits with respect to hydraulic fracturing activities.  The proposed bill would further require the disclosure of chemicals used in the fracking process, impose well construction standards to minimize source water contamination, establish setbacks with regard to residential and nearby water sources, and provide public input opportunities when fracking permits are issued.  

The bill represents the collaborative efforts of industry, environmental groups and the Illinois Attorney General. We will continue to track this bill as it makes its way through the Illinois legislature.

State of Green Business 2013

By: E. Lynn Grayson

GreenBiz and Trucost have released a new report State of Green Business 2013 that details natural capital or environmental costs as well as identifies the top ten sustainable business trends in 2013.

Environmental cost data addressed include for example:

• Environmental costs rose 8% between 2007-2011
• Environmental costs in 2011 for U.S. companies was $352 million
• "absolute" environmental cost or financial value of companies environmental impacts was $351.6 billion in 2011 for U.S. companies

The top ten sustainable business trends of 2013, briefly summarized, are as follows:

1. companies take stock of natural capital
2. sustainability becomes a matter of risk and resilience
3. corporate reporting gets integrated
4. the sharing economy makes its mark
5. commerce gets relocalized
6. machine to machine (M2M) enables to use of greener machines
7. sustainability goes app crazy
8. materiality becomes material for investors
9. companies look past their goals
10. peak sustainability threatens corporate progress

This report is rich with data addressing, among other topics: direct and supply chain environmental impacts; absolute environmental costs; energy consumption rates; GHG emissions; water intensity; air emissions; wastes; recycling; and, sustainability.

The report, State of Green Business 2013, is available for free download with registration at http://bit.ly/YUgOqd. 

U.S. EPA Releases Chemical Data Reporting Information

By Steven M. Siros

On February 11, 2013, U.S. EPA released 2012 Chemical Data Reporting ("CDR") information on more than 7,600 chemicals in commerce.  Under the CDR rule, which was promulgated under TSCA, companies are required to report manufacturing and import data if the site-specific production or import volume of the chemical exceeds 25,000 pounds.  According to U.S. EPA Administrator Lisa Jackson, "[t]he 2012 Chemical Data Reporting information will help EPA and others to better assess chemicals, evaluate potential exposures and use, and expand efforts to encourage the use of safer chemicals."  Administrator Jackson further noted that "[t]he CDR data also highlight the clear need for TSCA reform."   The 2012 CDR information is available at http://www.epa.gov/oppt/cdr/index.html.