Corporate Environmental Lawyer

E. Lynn Grayson And Katherine M. Rahill Speak At CBA Corporate Law Department's Committee Meeting

By E. Lynn Grayson and Katherine M. Rahill

E. Lynn Grayson and Katherine M. Rahill will speak at the CBA Corporate Law Department's Committee Meeting this Wednesday, February 22, 2012 at noon. Their presentation titled "2012 Outlook: Corporate Environmental Concerns" will address new and emerging environmental issues important to in-house counsel. These issues will include:

• Lack of Government Resources/Insufficient Funding
• Superfund/UAOs
• Environmental Disclosures
• Corporate Environmental Responsibility
• Water Scarcity
• Memoranda of Understanding (MOUs)
• Financial Assurance
• Soil Vapor Intrusion
• EPA Toxicological Reviews
• Improved/New Technology

Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at lgrayson@jenner.com and krahill@jenner.com. More information is available at www.jenner.com.

New MOU For EPA And DoD

By E. Lynn Grayson

EPA and DoD have entered into a new Memorandum of Understanding (MOU) to advance the use of innovative technologies and their mutual interests in sustainability. This MOU is entered into between EPA through its Office of Research and Development, and the Department of Defense through its Office of the Deputy Under Secretary of Defense for Installations and Environment, to establish relations between the two institutions regarding collaboration on their mutual goals.

The Office of Research and Development (ORD) is the scientific research arm of EPA, whose leading-edge research helps provide the solid underpinning of science and technology for the EPA. The work at ORD laboratories, research centers, and offices across the country helps improve the quality of air, water, soil, and the way these resources are used.

The Office of the Deputy Under Secretary of Defense for Installations and Environment ((DUSD-I&E)) is the principal advisor to the Secretary of Defense on matters related to Department of Defense (DoD) installation capabilities, programs, and budgets. Responsibilities include installation-energy programs and policy, environmental management, safety and occupational health, environmental restoration at active and closing bases, conservation of natural and cultural resources, pollution prevention, and environmental research technology.

Subject to mutual consent and availability of funding, EPA and DoD intend to carry out joint activities to advance the development and/or demonstration of new applications and technologies that can be used to achieve mutual sustainability goals. These applications and technologies will use both new and existing data about health and the environment, as well as new data developed within the scope of this MOU.

EPA and DoD intend to cooperate in research, development, and demonstration of technologies that can be used to achieve mutual goals. Joint EPA-DoD activities are expected to be undertaken subject to available funding and resources within each agency. Each party may contribute funding and in-kind resources, depending on the collaborative project, which is consistent with the goals, missions, and programmatic requirements of the party.

The MOU is effective for five (5) years until 2017.

EPA Releases DMR Pollutant Loading Tool

By E. Lynn Grayson

EPA recently released the Discharge Monitoring Report (DMR) Pollutant Loading Tool designed to help individuals determine who is discharging, what pollutants they are discharging and how much, and where they are discharging. The tool calculates pollutant loadings from permit and DMR data from EPA's Permit Compliance System (PCS) and Integrated Compliance Information System for the National Pollutant Discharge Elimination System (CIS-NPDES). Data is available for the years 2007 through 2010. Pollutant loadings are presented as pounds per year and as toxic-weighted pounds per year to account for variations in toxicity among pollutants. The tool ranks dischargers, industries, and watersheds based on pollutant mass and toxicity, and presents "top ten" lists to help you determine which discharges are important, which facilities and industries are producing these discharges, and which watersheds are impacted.

The tool also includes wastewater pollutant discharge data from EPA's Toxics Release Inventory (TRI). Data is available for the years 2007 through 2010. Users can search TRI data to find the facilities with the largest pollutant discharges to surface waters or sewage treatment plants (a.k.a. Publicly-Owned Treatment Works – "POTWs"). Users can also compare the DMR data search results against TRI data search results and vice versa. The tool clearly labels the source of data when displaying search results but does not mix TRI or DMR data when calculating pollutant discharges.

The Loading Tool uses discharge monitoring and permit data from PCS and ICIS-NPDES. PCS and ICIS-NPDES are databases that automate entering, updating, and retrieving discharge monitoring and permit data:

• PCS and ICIS-NPDES are national in scope, including data from all 50 states and 21 U.S. territories and tribes;
• PCS and ICIS-NPDES contain discharge data that facilities determine through effluent chemical analyses and metered flow; and
• PCS and ICIS-NPDES collectively include information for facilities in all point source categories that discharge directly to receiving streams.

EPA has verified the accuracy of the tool's calculations. EPA has also performed a limited review of the underlying data that has focused on facilities with the largest amounts of pollutant discharges.

DMR data has long been a key source of citizen suits under the Clean Water Act. With the creation of this new tool, this data will be more easily obtained and available in a more user friendly format.

The tool is available at http://cfpub.epa.gov/dmr/.

New Chemicals Proposed for Addition to California’s Proposition 65 List

By Katherine M. Rahill

In December and January, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment ("OEHHA") announced its intent to add seven new chemicals to the Proposition 65 chemicals list:

• Kresoxim-methyl
• Tetraconazole
• Methyl isopropyl ketone
• Benzophenone
• Coconut oil diethanolamine condensate
• Diethanolamine
• 2-Methylimidazole

 The Safe Drinking Water and Toxic Enforcement Act of 1986, otherwise known as Proposition 65, requires the State of California to publish a list of chemicals determined by the State to cause cancer or reproductive toxicity.  There are four mechanisms by which a chemical can be determined to cause cancer or reproductive toxicity sufficient to require listing: (1) either the Carcinogen Identification Committee or the Developmental and Reproductive Toxicant Identification Committee, independent committees of scientists and health professionals that are part of OEHHA's Science Advisory Board, make a determination that there is sufficient evidence that the chemical causes cancer or reproductive impacts; (2) an authoritative body such as the International Agency for Research on Cancer, the National Toxicology Program, or the U.S. Environmental Protection Agency identifies the chemical as causing cancer or reproductive impacts; (3) a state or federal agency requires the chemical to be labeled as causing cancer or reproductive impacts; or (4) the chemical meets certain criteria and is identified in the either of two provisions of the California Labor Code as causing cancer or reproductive impacts.  The listing of a chemical generally imposes two obligations on businesses that use that chemical: (1) businesses must provide a warning before exposing anyone to a chemical on the Proposition 65 chemicals list; and (2) businesses must prevent the discharge of listed chemicals into sources of drinking water. 

 Of the seven chemicals for which OEHHA has published Notices of Intent to list in the last two months, five of the chemicals are being listed through the California Labor Code mechanism, four chemicals as a result of findings that the chemicals are carcinogenic (Benzophenone, Coconut oil diethanolamine condensate, Diethanolamine, and 2-Methylimidazole) and one chemical for evidence of developmental toxicity (Methyl isopropyl ketone).  The other two chemicals are proposed for listing through the authoritative body mechanism as a result of U.S. EPA studies concluding they are capable of causing cancer (Kresoxim-methyl and Tetraconazole).  A comment period was provided by OEHHA for the listing of these chemicals.  Once the comment periods have ended (some of which have expired already), OEHHA will then make a final determination and publish a revised Proposition 65 list, no sooner than 60 days after the publication of the Notices of Intent. 

In addition to the proposed addition of these seven chemicals to the Proposition 65 chemicals list, OEHHA also announced the selection of two chemicals (deltamethrin and xylene) for consideration by the Developmental and Reproductive Toxicant Identification Committee.  The Committee will undertake a review of existing scientific evidence regarding the potential for these two chemicals to cause reproductive impacts.  With the announcement of the selection of these chemicals, OEHHA requested the public provide information relevant to the Committee's review.

 OEHHA's Notices of Intent to list new chemicals can be found by clicking here and Requests for Information can be found by clicking here.

EPA Plans To Amend RCRA Hazardous Waste Generator Regulations

By E. Lynn Grayson

EPA recently announced plans to amend certain hazardous waste regulations under RCRA at 40 C.F.R. Parts 261-265 in its Action Initiation List. According to EPA, the focus will be to streamline these regulations with the overall objective to make targeted, sensible improvements to the hazardous waste regulatory program.

The new proposal will address:

• the amount of time waste accumulates at a facility for the purposes of classifying the facility as a large waste generator;
• labeling standards for storage tanks and drums;
• closure requirements for tanks, containers, drip pads, and containment buildings; and
• certification standards for recyclable materials used in a manner constituting disposal.

Many hazardous waste generation regulations date to the 1980s. EPA and State regulatory leaders agree that a comprehensive review and update is timely.

WHO Announces Second Meeting On Global Collaboration In Chemical Risk Assessment

By E. Lynn Grayson

The World Health Organization (WHO) has announced its second meeting focused on strengthening global collaboration in chemical risk assessment to be held 29-30 March 2012 in Bonn, Germany. The first meeting was held in March 2010.

The two day meeting will follow up on key issues and priority actions to address the needs identified in March 2010 including: capacity building/training; chemical risk assessment/sharing knowledge; risk assessment methodology; and, research. The objective of the first day of the meeting is to provide an update on tools developed to increase capacity globally in chemical risk assessment and propose strategies to enhance update of risk assessment methodologies. The objectives of Day 2 of the meeting are to further explore interest in participating in a WHO Risk Assessment Network, to discuss the Network design in terms of vision, goals and objectives, structure and function, as well as to propose options for its implementation.

The WHO previously identified ten chemicals of major public health concern that are an important focus in the continuing risk assessment work:

1. Air pollution
2. Arsenic
3. Asbestos
4. Benzene
5. Cadmium
6. Dioxin and dioxin-like substances
7. Inadequate or excess fluoride
8. Lead
9. Mercury
10. Highly hazardous pesticides

More information about this upcoming meeting and WHO's outreach on chemicals and related risk assessment is available at http://www.who.int/ipcs/en/.

World Health Organization (WHO) Issues Life Stage Guidance for Risk Assessment

By E. Lynn Grayson

According to WHO, a significant challenge exists with monitoring and assessing individual and population level exposure and risk to environmental chemicals associated with how to consider age and life-stage related changes in behavior and physiology.  Age and life-stage related differences will determine the critical windows of susceptibility as well as the appropriate distribution of exposure factors required to address specific exposure scenarios.  Age and life-stage differences in how individuals interact with the environmental may be a major determinant for identifying those most vulnerable to risks from particular exposures to environmental contaminants.

WHO, through its International Program on Chemical Safety, has developed guidance on these issues and specifically how to systematically identify critical life stages for use in exposure and risk assessment.  The draft guidance, Identifying Important Life Stages for Monitoring and Assessing Risks from Exposure to Environmental Contaminants, was prepared by a group of experts convened by WHO.  WHO is accepting comments on this draft guidance through January 31, 2012.

WHO is the directing and coordinating authority for health within the United Nations system.  It is responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends.

ATSDR Releases New Priority Substance List

By Katherine M. Rahill

On November 3, 2011, the Agency for Toxic Substances and Disease Registry ("ATSDR") published its 2011 Priority List of Hazardous Substances.  Pursuant to Section 104(i)(2)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act  ("CERCLA"), ATSDR, in collaboration with EPA, is charged with developing a list of hazardous substances, in priority order, that are most commonly found at sites on the National Priorities List ("NPL") and pose the most significant potential threat to human health.  The Substances Priority List consists of the hazardous substances receiving the top 275 highest scores according to ATSDR's priority calculation.  ATSDR calculates a priority score for each hazardous substance that is determined to be a "candidate" for the list, based on its presence in at least one environmental media at three or more NPL sites.  For 2011, the candidate list was 847 substances long.

Illinois Supreme Court Limits Environmental Groups’ Appeal Rights

By Gabrielle Sigel and Phoebe B. Scott

On October 27, 2011, the Illinois Supreme Court, in a 5-2 decision, held that the Sierra Club and Peoria Families Against Toxic Waste ("the opposition groups") did not have standing to seek review of an Illinois Pollution Control Board ("Board") decision granting a company's petition to be relieved of compliance with a hazardous waste regulation. Sierra Club v. The Illinois Pollution Control Board, No. 110882 (Ill. Oct. 27, 2011).

EPA’s Malicious Prosecution Costs U.S. Government $1.7 Million

By Scott Ritter

Editor's Note: Mr. Ritter is a 1L law student at Indiana University Maurer School of Law and recently participated in a shadow day program with the Firm.

An ordeal that began in 1996 has culminated in a judgment of $1.7 million for former refinery manager, Hubert Vidrine. The U.S. District Court for the Western District of Louisiana awarded Vidrine that sum based on the EPA's malicious prosecution for violations of the Resource Conservation and Recovery Act. The Court held that the EPA did not have probable cause that Vidrine was storing hazardous waste, and that the EPA's 1996 search of the Canal Refinery Company in Church Point, Louisiana did not yield evidence of RCRA violations.