Steven M. Siros Feed

U.S. EPA Issues Final Rule Adding Vapor Intrusion to NPL Site Scoring System

 By Steven M. Siros EPA subsurface intrusion

In a move that should not come as a great surprise, on December 7, 2016, U.S. EPA published a final rule which added a "subsurface intrusion” or “SsI" component to CERCLA’s Hazard Ranking System (HRS). More specifically, SsI can include either groundwater or vapor intrusion although vapor intrusion is the much more common exposure pathway. The new rule, which can be found here, will become effective within 30 days of publication in the federal register. According to U.S. EPA Waste Chief Mathy Stanislaus, the new rule expands the types of sites that be assessed by U.S. EPA to now include sites that solely have SsI  issues, as well as sites that have SsI issues that are coincident with a groundwater or soil contamination problem.

The final rule is substantially similar to the draft rule but does have minor adjustments that were made in response to comments which U.S. EPA contends will better “help refine the mechanics of assigning an HRS site score.” Importantly, the new rule doesn’t change the existing HRS cutoff score of 28.5 for a site to qualify for listing on the NPL, nor does the new rule apply to sites that are already on or proposed to be listed on the NPL.

Industry groups and the Department of Defense had objected to the draft rule, and it is unclear whether the new rule will be retained or modified under the incoming Trump administration.  We will continue to track this and other rulemaking efforts on the part of U.S. EPA as the administration continues to transition. 

Environmental Attorney Reception at Jenner

 By Steven M. Siros 

Skyline

On September 13th, from 5 pm to 7 pm, the CBA Environmental Law Committee, CBA Young Lawyers Section Environmental Law Committee, ISBA Environmental Law Section, and ABA Section of Environment, Energy, and Resources will be hosting a networking reception for environmental attorneys at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. Jenner & Block partner Allison Torrence is the 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 13, 2016 | 5:00 pm to 7:00 pm

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

 

Jenner & Block CLE Program/Webinar: Environmental Litigation Update—September 1st at Noon

Grayson By E. Lynn Grayson

Logo

On September 1, 2016, Jenner & Block is hosting a CLE program titled Overview of Critical Litigation Issues for Environmental Practitioners in our Chicago offices at Noon. The program will feature two of our environmental litigation partners as speakers, Steven Siros and Allison Torrence. Together, they will provide environmental litigation updates addressing new developments related to the Clean Power Plan, “waters of the United States,” emerging contaminants, and CERCLA cost recovery/contribution claims.

The program also will be shared via webinar for those who are unable to join us in person. To register for the program, please RSVP here.

D.C. Circuit Rejects Government’s “Double Recovery” Claims in CERCLA Case

Rocket By Steven M. Siros

The U.S. Court of Appeals for the District of Columbia has rejected arguments by the federal government that allowing an aerospace contractor to pass through certain CERCLA remediation costs back to the government under its existing government contracts constituted an impermissible double recovery under CERCLA. Lockheed Martin Corp. v. U.S. (D.C. Cir. Aug. 19, 2016). Lockheed had incurred in excess of $287 million to remediate several contaminated sites where it had manufactured solid-propellant rockets pursuant to government contracts. Lockheed sued the government under CERCLA to recover a portion of its costs incurred to remediate these sites, alleging that the government was directly responsible under CERCLA for a portion of these costs due to the government’s acquiescence in certain of Lockheed’s disposal activities. At the same time, however, the government and Lockheed had entered into an agreement pursuant to which the government agreed that Lockheed was entitled to recover a portion of its remedial costs as indirect costs charged through its current government contracts (the “Billing Agreement”). 

The district court engaged in a thorough analysis of the typical CERCLA equitable contribution factors and allocated a specific percentage of liability to Lockheed and a specific percentage of liability to the government (the percentages varied across the sites). On appeal, the government pointed to the fact that Lockheed was already recovering a significant portion of its remedial costs from the government through the Billing Agreement and argued that any further obligation on the part of the government to reimburse Lockheed for additional remedial costs was inconsistent with CERCLA’s broad equitable principles and constituted an impermissible double recovery under CERCLA Section 114. 

Relying in large part on the Billing Agreement, the D.C. Circuit noted that “the government agreed to [Lockheed’s recovery of its response costs] by entering into a settlement that allowed Lockheed in its new contracts to charge the government for the company’s own CERCLA liability at the discontinued sites.” Notwithstanding that the D.C. Circuit appeared sympathetic to the government’s claim that CERCLA was not designed to provide for a government-funded cleanup program but instead intended to shift remediation costs to the polluting party, here the government voluntarily agreed to the complained of funding mechanism when it entered into the Billing Agreement. In response to the government’s argument that allowing Lockheed to continue to pass these remedial costs through the Billing Agreement constituted an impermissible “double recovery,” the D.C. Circuit noted that the district court found that crediting mechanism agreed to by the parties would preclude any perceived “double recovery” and the D.C. Circuit found no reason to disturb that finding. Interestingly, the D.C. Circuit specifically stated that nothing in the Federal Acquisition Regulations or the Defense Contract Audit Agency Manual mandated the crediting mechanism agreed to by the parties but the D.C. Circuit declined to opine on the interplay of federal contracting law and CERCLA Section 114, leaving that to be resolved at a later time.


An Idled Pipeline Must Be an Abandoned Pipeline—New PHMSA Advisory

SirosBy Steven M. Siros

PHMSA logoA recently issued PHMSA advisory bulletin seeks to clarify the regulatory requirements that apply to mothballed or idled unused gas or hazardous liquid pipelines. As required by the Pipeline Safety Bill that was signed into law on June 22, 2016, PHMSA recently issued an advisory bulletin providing  guidance to owners and operators of gas or hazardous liquid pipelines regarding the requirements for idle and/or unused pipelines. 

Although the bulletin recognizes that owners and operators often refer to pipelines that are not in operation but that might be used again in the future as “idled,” “inactive,” or “decommissioned,” the PHMSA regulations do not recognize “idle” or “inactive” status for hazardous liquid or gas pipelines. Instead, the regulations consider such pipelines to either be active and fully subject to all relevant parts of the safety regulations or abandoned. Assuming that these pipelines have not been abandoned in accordance with the requirements set forth at 49 CFR §§ 192.727 and 195.402, these pipelines must comply with all relevant safety requirements, including periodic maintenance, integrity management assessments, damage prevention programs, and public awareness programs. 

The bulletin goes on to suggest, however, that in situations where the pipeline has been purged of all hazardous materials but not yet abandoned because of an expectation that the pipeline may later be used, the owner/operator may be able to defer certain of these safety requirements. Although PHMSA indicated that it intends to engage in a future rulemaking to provide further guidance as to which requirements might be deferred, in the interim the bulletin suggests that owners or operators planning to defer certain activities coordinate the deferral in advance with the regulators. 

The guidance also reiterates that notwithstanding that companies might not have access to records relating to where historical pipelines might be located and/or if these pipelines were properly purged of combustibles, the owners and operators still have a responsibility to assure facilities for which they are responsible or last owned do not present a hazard to people, property, or the environment. 

Please click here to see PHMSA's advisory bulletin.

U.S. EPA’s New eDisclosure System—Six Month Snapshot

SirosBy Steven M. Siros

US EPA logoRolled out in December 2015, U.S. EPA’s eDisclosure system has received mixed reviews. Although self-disclosures for “New Owners” or for criminal violations continue to be required to be submitted under the old system, most other self-disclosures must be submitted through U.S. EPA’s new eDisclosure portal. Self-disclosures made through this system are placed into one of two categories. Broadly, Category 1 disclosures are EPCRA violations that meet all of the Audit Policy or Small Business Compliance Policy conditions, while Category 2 disclosures are all other violations. For Category 1 violations, the eDisclosure system will automatically generate an “eNotice of Determination” which confirms that no penalty will be assessed conditioned on the accuracy and completeness of the eDisclosure (and assuming that the violation is corrected within the requisite 60- or 90-day time period). For Category 2 disclosures, the eDisclosure system will automatically generate an “Acknowledgement Letter” acknowledging receipt of the disclosure and notifying the entity that U.S. EPA will make a determination as to eligibility for penalty mitigation if and when it considers taking enforcement action.  The self-disclosed violation must still be corrected within the requisite time frame.  The new eDisclosure system did not modify any of the underlying eligibility requirements of U.S. EPA’s Audit Policy or Small Business Compliance Policy.

Although the regulated community has acknowledged that the eDisclosure system has streamlined self-disclosures, there has been some concern regarding U.S. EPA’s recent pronouncement that disclosures submitted under the new system would generally be released in response to FOIA requests, notwithstanding the potentially unresolved nature of the alleged violations. These released disclosures would then be made available on a publicly searchable FOIA website. Companies considering whether to self-report under the eDisclosure system must evaluate whether the benefits of civil penalty immunity or mitigation are outweighed by the risks of adverse publicity and/or potential citizen suit claims. System glitches such as website time-outs have also been reported and some have complained that there is inadequate space for narrative responses on the website portal.  Time will tell whether the eDisclosure system accomplishes its objective of minimizing U.S. EPA resources while encouraging self-disclosure and the subsequent correction of reported violations. 

Commercial Property Assessed Clean Energy (PACE) Financing

By Donald I. Resnick, Kristen M. Boike and Lynn S. Fradkin

Commercial Property Assessed Clean Energy (PACE) financing is an innovative program designed to incentivize commercial businesses to undertake green efforts.  By utilizing PACE financing, governmental bodies encourage commercial entities to invest in improvements or technologies that will save energy, produce renewable energy, and/or, in some states, conserve water.  This concept is growing in popularity because it is a creative method to efficiently and effectively provide capital for sustainability projects.

How Does Commercial PACE Financing Work?

A potential borrower interested in securing commercial PACE financing must first determine whether the state in which the project is located has passed commercial PACE financing enabling legislation and, if so, whether the applicable municipality or county has established a program for which the project qualifies.  A state must pass authorizing legislation to enable a governmental entity or other inter-jurisdictional authority to form a special tax district or special assessment district to operate a commercial PACE program.  This is a key feature of the PACE financing model because the model requires the imposition of assessments or special taxes against the property that benefits from such improvements.

PACE enabling legislation has already been adopted in 32 states,1 including Illinois, California, and New York, as well as the District of Columbia.  Once the state legislation has been passed, a program sponsor (a state, consortium of governmental entities, or a single local governmental body) must design and implement a commercial PACE program to achieve its objectives, which may include economic and workforce development and greenhouse gas reduction targets.  Accordingly, there may be numerous programs within a particular state, each with its own customized parameters.  For example, in California there are 11 different commercial PACE programs2 and, as a result, PACE financing is available in most California municipalities.3

Continue reading "Commercial Property Assessed Clean Energy (PACE) Financing" »

New Focus on Health and Safety of Infill Associated With Synthetic Turf Fields

SirosBy Steven M. Siros

NTPThe National Toxicology Program (“NTP”) recently announced that it intends to join the crowded playing field (pun intended) of state, federal, and international agencies that are evaluating the potential human health risks associated with synthetic turf fields. Synthetic turf fields have been the subject of ongoing assessment by U.S. EPA, the Agency for Toxic Substances and Disease Registry, the Consumer Product Safety Commission, California’s Office of Environmental Health Hazard Assessment, and the European Union’s chemicals agency. However, the NTP intends to focus specifically on the tire crumb rubber used in those turf fields and to conduct short-term in vivo and in vitro toxicology studies on the crumb rubber. 

As more schools and other public facilities install synthetic turf fields, the potential health effects of the infill is an issue that is attracting increased attention. The NTP believes that its proposed study will help to fill what it views to be an important data gap. Although existing health study have not identified an elevated health risk from playing on artificial turf fields, these studies have generally focused on the potential health effects of exposure to lead other materials released from the artificial grass blades and/or exposure to possible emissions associated with the turf field in its entirety.   NTP and U.S. EPA have noted that there are limited studies on the effects of exposure to the tire crumb materials specifically which will be the focus of the NTP study.     

Please click here to go the NTP press release concerning its study.

Challenges When Dealing with Unregulated/Emerging Contaminants in Drinking Water Systems

SirosBy Steven M. Siros

Drinking waterOne of the more challenging issues for companies dealing with contaminated groundwater sites near public drinking water supplies is how to handle contaminants for which there are uncertain or evolving regulatory action levels. For example, perfluorinated chemicals (“PFCs”) have garnered a lot of publicity recently after these contaminants were detected in several municipal drinking water supplies. However, there currently is no federal maximum contaminant level (“MCL”) for PFCs generally, and more specifically, for perfluorooctanoic acid (“PFOA”). Instead, there are conflicting health advisory levels that vary drastically between U.S. EPA and the individual states, ranging between 20 and 400 parts per trillion (“PPT”). Similarly, 1,4-dioxane is another contaminant that is the subject of conflicting regulatory standards in drinking water. There is no MCL for 1,4-dioxane but it, along with PFOA, is on U.S. EPA’s Drinking Water Contaminant Candidate List 4. As such, if detected, the municipality is required to provide notification to the public via its Consumer Confidence Report. However, the health advisory and/or clean-up level for 1,4-dioxane in groundwater varies greatly from state to state, ranging from .3 to 5 parts per billion, and as such, there is no consistent regulatory standard for 1,4-dioxane in drinking water.

Continue reading "Challenges When Dealing with Unregulated/Emerging Contaminants in Drinking Water Systems" »


What is Your Global Footprint?

SirosBy Steven M. SirosEarth Day 2016 J&B and earthday-org

As part of our ongoing focus on Earth Day 2016, I found an interesting tool that allows one to measure one’s global footprint. The Earth Day Network has put together a Ecological Footprint Calculator that allows one to input specific parameters and determine how much of an impact each one of us has on the planet as a whole.  At least for me, the results were somewhat sobering. Please click here  to use the calculator to measure your impact.

Earth Day 2016 Special Series: April 18–22, 2016

SirosBy Steven M. Siros

Earth Day 2016 J&B and earthday-org
In celebration of Earth Day 2016, the Corporate Environmental Lawyer blog will host a special campaign April 18-22 featuring unique news and stories about Earth Day events and activities taking place around the world, in addition to important developments in environmental law. As environmental lawyers, this is a good day for us to remember the contributions our clients and friends make to improving the environment in the communities where we live and work.

The theme for Earth Day 2016 is Trees for Earth.  In anticipation of the 50th anniversary of Earth Day in 2020, planting trees is the first of five major goals that will highlighted in each of the next five years.   The Earth Day Network challenges the world to plant 7.8 billion trees by 2020. 

You are invited to follow and participate in our Earth Day special series next week at http://environblog.jenner.com/ and follow us on Twitter @JennerBlockEHS.

If you have any questions about our Corporate Environmental Lawyer blog or this special series, please feel free to contact me at ssiros@jenner.com or 312-923-2717.

Can A Smartphone Be Used To Verify Compliance With My Air Permit—Surprisingly, the Answer Soon May Be Yes—and Other New Enforcement Initiatives

EPA Next Gen Smart Phone CitiSense Sensor

SirosBy Steven M. Siros

In an effort to capitalize on what U.S. EPA characterizes as the successful integration of its Next Generation Compliance strategy into its enforcement arsenal, U.S. EPA recently confirmed that it intends to incorporate Next Generation Compliance into future environmental settlements. For those unfamiliar with the strategy, U.S. EPA’s Next Generation Compliance strategy is intended to achieve a higher rate of compliance and reduce pollution through the use of advanced monitoring and information technologies. For example, through the use of Electronic Discharge Monitoring Reports to monitor compliance with Clean Water Act NPDES permits, U.S. EPA is able to more readily identify and prosecute permit violations. Moreover, since much of this information is then publicly available, environmental organizations and citizen groups are more readily able to identify violators, which could result in an increased frequency of citizen suits and/or increased pressure being brought to bear on the regulators to enforce against repeated violators. 

Continue reading "Can A Smartphone Be Used To Verify Compliance With My Air Permit—Surprisingly, the Answer Soon May Be Yes—and Other New Enforcement Initiatives" »

World Water Day 2016—Water and Jobs

LogoWWD-2016-mobile Siros_Steven_COLORBy Steven M. Siros

 

Today is World Water Day, and consistent with this year’s theme of “Water and Jobs,” this blog focuses on the impact of water shortages on  jobs globally. According to the United Nations Conference on Environment and Development, an estimated three out of every four jobs globally are dependent on water, and a lack of access to water is likely to limit economic growth in the coming decades. More than 1.5 billion people are employed in industries that are heavily dependent on water, most in farming, fisheries, and forestry. The lack of clean, available water now and in the future will obviously have a very significant impact on all of these jobs.

In addition to preserving the above-referenced jobs, a 2016 United Nations Water Development Report noted that investing in projects intended to provide and improve access to safe water can result in a significant economic growth. For example, investments in small scale projects in Africa could offer a return equivalent to five percent of the continent’s economic output. Similarly, for every $1 million invested in the United States to upgrade water supply and treatment systems, approximately 10 to 20 additional jobs are generated, per the United Nations Development Report.

Please click here to view a video message from Guy Ryder, the ILO Director-General and Chair of UN Water, discussing the importance of World Water Day 2016.

Lynn Grayson and Allison Torrence Presenting At CBA Seminar On Environmental Law

Siros_Steven_COLORBy Steven M. Siros

CBA

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.

Continue reading "Lynn Grayson and Allison Torrence Presenting At CBA Seminar On Environmental Law" »

Courts Apply Increased Scrutiny to Efforts to Remand Environmental Class Actions to State Court

Siros_Steven_COLORBy Steven M. Siros

 

Gw contamination

On March 7, 2016, the Ninth Circuit granted Boeing’s petition seeking to appeal the remand to state court of an environmental class action lawsuit alleging the improper disposal of hazardous chemicals into soil and groundwater at a site in Auburn, Washington. This would be the second time that Boeing has appealed an order remanding the case back to state court. In the first go-around, the district court granted plaintiffs’ motion to remand, applying the single-event exception to removal under the Class Action Fairness Act of 2005 (CAFA). Boeing appealed, and the Ninth Circuit concluded that the single-event exception to CAFA removal did not apply and directed the district court to examine plaintiffs’ separate argument in support of remand based on CAFA’s local-controversy exception. Under CAFA’s local-controversy exception, federal courts should decline to exercise jurisdiction over a class where at least two-thirds of the class are citizens of the state in which the complaint is filed and at least one defendant is a citizen of the filing state whose alleged conduct forms a significant basis of the asserted claims and from whom the class seeks significant relief.

Continue reading "Courts Apply Increased Scrutiny to Efforts to Remand Environmental Class Actions to State Court" »

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.

 

Failure to Provide Notice to Excess Insurer Dooms Insurance Recovery for Environmental Settlement

Siros_Steven_COLORBy Steven M. SirosSmokestacks

 

A California appellate court recently affirmed a lower court decision that had concluded that an insured’s failure to obtain consent from its excess insurer barred it from recovering insurance proceeds from that insurer.  In 2001, a lawsuit was filed by residents of a Missouri town seeking damages against the insured relating to alleged contamination from a lead and cadmium smelting operation.  Zurich Insurance Company was the primary liability insurer and had agreed to provide a defense of the action.  Fidelity & Casualty of New York (“F&C”) was an excess carrier and had received notice of the underlying litigation.  The matter was resolved during a mediation and the insured agreed to settle the residents' claims for $55 million.  However, F&C was not notified of the settlement until a month later. 

Continue reading "Failure to Provide Notice to Excess Insurer Dooms Insurance Recovery for Environmental Settlement" »

Steven Siros Presenting at a Webinar on Chemical Fingerprinting

Torrence_Allison_COLOR By Allison A. Torrence

 

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.

Allison Torrence Discusses Mobile-Source Emissions in Jenner & Block “Insights” Video

Siros_Steven_COLOR By Steven M. Siros

 

Partner Allison Torrence discusses mobile-source emissions and the Clean Air Act in a new video in Jenner & Block’s “Insights” series. Allison focuses her discussion on enforcement and the EPA’s increasingly stringent standards. She also examines EPA actions that recently have been in the news regarding “defeat devices” that turn on vehicle emission controls during testing in EPA labs and turn off the controls when the vehicles are on the road.

Jenner & Block Insights: Allison Torrence Discusses Mobile Emissions from Jenner & Block LLP on Vimeo.

President Obama Appoints Water Czar to Address Flint Water Issues

Siros_Steven_COLORBy Steven M. SirosFlint

 

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. 

Continue reading "President Obama Appoints Water Czar to Address Flint Water Issues" »

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.

 

 

COP21 Commences in Paris

Siros_Steven_COLORBy Steven M. SirosParis

 

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.

 

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

Torrence_Allison_COLOR

 By Allison A. Torrence

 

542af39b10b9c8530f00003e

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.

Study Purports to Find Carbon Nanotubes in Children's Lungs

Nanotubes 2Siros_Steven_COLORBy Steven M. Siros

 

A recent study conducted by the University of Paris-Saclay identified the presence of carbon nanotubes in children’s lungs in France.  Researchers examined 69 randomly selected lung fluid samples and found evidence of carbon nanotubes in all 69 of the samples.  The samples were collected from the lungs of children between the ages of 2 and 17 years suffering from severe asthma.  Carbon nanotubes are often used in the manufacture of computers, clothing and healthcare technology.  Carbon nanotubes are also found in automobile exhaust.  Although the source of the nanotubes identified in the children’s lung fluid was not identified, the study found that the particulate matter was mostly composed of anthropogenic multi-walled carbon nanotubes ranging from 10 to 60 nanometers in diameter and several hundred nanometers long. 

According to the study authors, this study was the first study demonstrating that carbon nanotubes from anthropogenic sources reach human lung cells. However, others have been critical of the study, noting that previous studies have not found evidence of carbon nanotubes accumulating in the lungs.  Please click here to view the study.