The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.
The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.
The State Water Resources Control Board has proposed a new maximum contaminant level (MCL) for 1,2,3-trichloropropane (TCP) of five parts per trillion (ppt).TCP is a manmade chemical found at industrial and hazardous waste sites. It has been used as a cleaning and degreasing solvent and also is associated with pesticide products.
California recognizes TCP as a carcinogen, and it has been found in numerous drinking water sources in the state. In August 2009, a public health goal (PHG) for TCP was developed by the Office of Environmental Health Hazard Assessment (OEHHA) for use by the State Water Board to establish an MCL. The PHG represents the level of TCP in drinking water that OEHHA believes does not pose a significant risk to health over a lifetime of exposure (70 years). The PHG for TCP is 0.0007 µg/L, or 0.7 ppt.
A drinking water standard, or MCL, establishes a limit on the allowable concentration of a contaminant in drinking water that is provided by a public water system. The State Water Resources Control Board is proposing 5 ppt as the MCL for TCP. Formal rulemaking is expected later this year, and if approved, the MCL would become effective July 1, 2017.
EPA published a technical fact sheet about TCP in 2014. More background information and guidance on the proposed MCL action for TCP also is available from the California State Water Resources Control Board.
TCP is yet another emerging chemical that has been the subject of ongoing federal and state regulatory review and discussion for several years. It also is a chemical being analyzed and assessed at the lower threshold level of ppt versus more traditional parts per billion (ppb). As is often the case, it appears that the State of California is initiating regulatory action addressing TCP concerns, and it is likely that other states will follow.
According to the Governance & Accountability Institute (G&A), 81% of S&P 500 Index companies published a sustainability or corporate responsibility report in 2015. The S&P Index is one of the most widely-followed barometers of the U.S. economy and conditions for large-cap public companies in the capital markets.
The G&A Institute has analyzed the index company components’ sustainability reporting activities for the past five years. There has been a rapid and significant uptake in corporate sustainability reporting among the 500 companies. Over the years, sustainability reporting rose from just 20% of the companies reporting in 2011 to 81% in 2015. According to the G&A Institute, this increased corporate reporting underscores the importance of setting strategies, measuring and managing environmental, social, and governance issues in response to growing stakeholder and shareholder expectations, and in some cases, demands for such reporting from major customers.
The growth in sustainability reporting tracked by the G&A Institute is as follows:
- In 2011, just under 20% of S&P 500 companies had reported;
- In 2012, 53% (for the first time a majority) of S&P 500 companies were reporting;
- By 2013, 72% were reporting—that is 7-out-of-10 of all companies in the popular benchmark; and
- In 2014, 75% of the S&P 500 were publishing reports.
The G&A Institute has joined forces with the Trust Across America/Trust Around the World (TAA/TAW) program to explore potential relationships of the trustworthiness of companies that do and do not report. The companies have charted and are analyzing the 99 index companies in 2015 that did not report on their sustainability opportunities, risks, strategies, actions, programs and achievements. More information about the work of the G&A Institute and this new initiative with TAA/TAW is available at http://www.ga-institute.com/.
While not yet mandatory in the U.S., sustainability and corporate social responsibility reporting is a growing trend and becoming somewhat of an expectation among the largest public and private companies. It appears that the new focus and scrutiny will not be on the companies reporting but those that have decided not to do so.
EPA’s woes over alleged mismanagement of the Gold King Mine spill in August 2015 continue with a new lawsuit recently filed by the State of New Mexico in federal district court in Albuquerque. The lawsuit names the EPA as a defendant, along with an EPA environmental contractor and mine owners contributing to the mismanagement of reclamation waters. New Mexico contends that the Agency has not done enough to remedy the toxic release of a flood of wastewater contaminated with an estimated 880,000 pounds of heavy metals into local rivers.
New Mexico’s suit seeks a declaratory judgment that the contractor and mine owners violated the Resource Conservation and Recovery Act, as well as compensatory and punitive damages for alleged negligence and gross negligence. New Mexico also is asking for a declaratory judgment against all defendants under the Comprehensive Environmental Response, Compensation and Liability Act.
Although the suit does not specify damages, attorneys for New Mexico said communities are owed at least $7 million for emergency response costs and third-party monitoring of water quality. They said the defendants should pay another $140 million in damages for estimated economic harm. This calculation estimated the harm done to rivers that are critical for agricultural and ranching use; to the Navajo Nation, which owns a tract of land the size of a small state that was affected; and to recreation that provides a significant amount of New Mexico’s income.
The New Mexico Attorney General is requesting full and just compensation for the environmental and economic damage caused by EPA’s spill. The lawsuit alleges that the effects of EPA’s spill were far worse than reported. New Mexico Environmental Department Cabinet Secretary Ryan Flynn has stated publicly that “from the very beginning, the EPA failed to hold itself accountable in the same way that it would a private business.”
While EPA declined to formally comment on the lawsuit, an Agency spokesperson advised that the EPA has taken responsibility for the spill and already paid the State of New Mexico $1.3 million.
The lawsuit is the first state litigation against the EPA over the spill. Other states impacted include Arizona, Colorado, Utah, and the Navajo Nation.
On April 22, more than one billion people every year celebrate Earth Day in more than 190 countries. According to the Earth Day Network, it is the largest civic observance in the world. Here are some interesting insights about Earth Day this year:
- It’s going to be more important than ever because at last count 155 countries, including the U.S., have agreed to sign the Paris agreement on climate change during a special ceremony at the United Nations in New York.
- This year’s celebration is a lead up to the 50th anniversary of Earth Day in 2020, and the Earth Day Network has pledged to plant 7.8 billion trees worldwide to account for every single person living on Earth.
- Learn more about Earth Day by viewing Google’s latest Doodle with fascinating paintings and pictures from around the world.
EPA recently took action under the Toxic Substances and Control Act (TSCA) to ensure no TCE containing consumer products enter the marketplace before the Agency has the opportunity to evaluate the intended use and take appropriate action. The new rule issued April 6, 2016, known as a Significant New Use Rule (SNUR), requires any company intending to make certain TCE containing consumer products provide EPA 90-day notice before making the product.
The final rule applies to TCE manufactured (including import) or processed for use in any consumer product, except for use in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. A consumer product is defined at 40 CFR 721.3 as “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”
EPA’s June 2014 Work Plan Chemical Risk Assessment for TCE identified health risks associated with several TCE uses, including the arts and craft spray fixative use, aerosol and vapor degreasing, and as a spotting agent in dry cleaning facilities. In 2015, EPA worked with the only U.S. manufacturer of the TCE spray fixative product, PLZ Aeroscience Corporation of Addison, Illinois, resulting in an agreement to stop production of the TCE containing product and to reformulate the product with an alternate chemical.
It is important to note that this regulatory action may affect certain entities with pre-existing import certifications and export notifications required under TSCA.
The rule becomes effective 60 days from its publication in the Federal Register.
On Wednesday, March 16, 2016, Jenner & Block partners E. Lynn Grayson and Allison Torrence will be speaking at a Chicago Bar Association CLE Seminar titled "Major Cases and Regulatory Changes in Environmental Law." Lynn Grayson will be presenting on proposed RCRA generator and pharmaceutical rules, and Allison Torrence, who is Chair of the CBA Environmental Law Committee, will be presenting on the U.S. v. Volkswagen Clean Air Act litigation.
The seminar is on Wednesday March 16, 2014 from 3–5 pm at the Chicago Bar Association, 321 S. Plymouth Court. A networking reception will be held at the CBA immediately following the seminar, from 5–6 pm.
For more information and to register for the seminar click here.
As required by the Hazardous Waste Electronic Establishment Act (Act), EPA’s efforts are ongoing to develop an e-manifest system. EPA issued its final rule in February 2014 (79 Fed. Reg. 7518, February 7, 2014) seeking to implement the Act’s requirement to create a national electronic manifest system and impose user fees as a means to fund its development and operation. Most recently, EPA has developed an e-manifest listserv to manage communications with the regulated community.
According to EPA, the listserv will: 1) provide stakeholders with program announcements and updates; and 2) facilitate e-manifest conversations among users and other stakeholders. There will be significant progress on the e-manifest program throughout 2016-2017, so participation in the listserv will be a good way to stay informed.
Interested parties may subscribe to EPA’s listserv at https://www3.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
EPA conducted a webinar on developments with the e-manifest system in December 2015, and the presentation provides a good overview of the program and related schedule.
Along with the hazardous waste management changes for generators recently proposed by EPA, the e-manifest system will be another significant new development for thousands of companies regulated by RCRA and subject to hazardous waste manifest requirements.
EPA recently announced seven National Enforcement Initiatives (NEIs) for FY 2017-2019. Every three years, EPA identifies NEIs to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference. According to EPA, the NEIs are selected with input from the public and other stakeholders across EPA’s state, local and tribal partners.
Starting October 1, 2016 and continuing for three fiscal years, the following are the NEIs:
- Reducing air pollution from the largest sources
- Cutting hazardous air pollutants*
- Ensuring energy extraction activities comply with environmental laws
- Reducing risks of accidental releases at industrial and chemical facilities*
- Keeping raw sewage and contaminated stormwater out of our nation’s waters
- Preventing animal waste from contaminating surface and groundwater
- Keeping industrial pollutants out of the nation’s waters*
*New for FY2017-2019 as of February 2016.
It is interesting to note that the newly identified NEIs appear to correspond to challenges that EPA recently confronted, including the Gold King Mine wastewater spill, the spill prevention litigation and settlement in New York, and the Flint, MI lead contaminated water matter, where recent government reports concluded EPA failed in its regulatory obligations to this community.
For more information, see EPA’s news release announcing these NEIs.
EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.