Corporate Environmental Lawyer

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.

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.

New EPA Draft Report Links Contaminants Found In Groundwater To Fracking

By Steven M. Siros

On December 8, 2011, the United States Environmental Protection Agency ("U.S. EPA") issued a draft report noting a need for the collection of more baseline data, greater transparency on the chemical composition of fracking fluids and more care to be exercised with respect to well construction and testing.  The draft report was issued following U.S. EPA's November 9, 2011 release of the preliminary findings of an investigation it conducted near the town of Pavillion, Wyoming which found the presence of chemicals commonly used in fracking (benzene, naphthalene and diesel) in groundwater in the vicinity of 169 natural gas production wells.

Although the draft report recommends additional testing to determine the vertical and horizontal extent of the contamination, the draft report is important for its conclusion that fracking fluids are the likely source of the contamination of the Pavillion drinking water aquifer (after having ruled out agricultural chemicals as a potential contamination source). The draft report is already attracting significant attention. Senator James Inhofe has already gone on record criticizing the draft report, noting that "this announcement is part of President Obama's war on fossil fuels and his determination to shut down natural gas production…. It is irresponsible for EPA to release such an explosive announcement without objective peer review." On the other hand, environmental groups such as the Natural Resources Defense Council have lauded the report as an acknowledgement of its position that fracking poses a significant environmental threat.

Beginning on December 14, 2011, the draft report will undergo a 45-day public comment period and a 30-day peer review process (although not the more heightened peer review that would be required if the draft report were considered a highly influential scientific study).

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.

Environmental Groups File TSCA Petition Seeking to Regulate Fracking Chemicals

By Steven M. Siros

On August 4, 2011, EarthJustice and a number of other environmental groups, submitted a petition to the United States Environmental Protection Agency ("U.S. EPA") seeking to compel U.S. EPA to promulgate rules regulating the production and use of chemical substances and mixtures used in oil and gas exploration and production ("E&P Chemicals") pursuant to the Toxic Substances Control Act ("TSCA").  More specifically, the petition requests that U.S. EPA promulgate a rule under TSCA § 4 that would require manufacturers and processors of  E&P Chemicals to conduct acute and chronic toxicity studies to characterize and evaluate the hazards and potential health and environmental effects of these chemicals.  The petition also requests that U.S. EPA promulgate a rule under TSCA § 8 that would obligate manufacturers and processors to maintain and submit records concerning the nature of E&P Chemicals (trade name, molecular structure, categories of use, volume of product being manufactured or used, a description of any possible byproducts, etc.).  In addition, petitioners request that U.S. EPA require that processors and manufacturers be required to submit any information related to allegations of significant adverse reactions to human health or the environment.  Finally, petitioners are seeking to require manufacturers and processors to submit copies of all existing health and safety studies related to these E&P Chemicals.  Critics of the petition have stated that much of the information requested by petitioners already is publicly available and that petitioners have failed to demonstrate substantial human or environmental exposure from E&P chemicals.  To see a copy of the petition, click here.

ELI And Jenner & Block Announce September 7th Environmental Disclosure Webinar

By E. Lynn Grayson

The Environmental Law Institute (ELI) and Jenner & Block invite you to attend the Changing Standards for Environmental Disclosures webinar on September 7, 2011 from 9:00 a.m. – 10:30 a.m. (Central).

For years the Securities and Exchange Commission (SEC) has faced growing pressure to strengthen its rules regarding corporate disclosure of environmental liabilities. Critics charge that the legally-mandated disclosure framework relied upon by the SEC, based upon the Securities Act of 1933 and the Securities Exchange Act of 1934, no longer is effective in providing full and fair disclosure to investors on topics addressing environmental, social and governance (ESG) issues. Groups like Ceres, a coalition of investors and environmental groups focused on addressing sustainability challenges, are demanding a broader scope of disclosures, including climate change and water scarcity considerations. These developments and more, mean that companies confront an array of standards for reporting, and face potential pitfalls if their reporting is not accurate and credible. Join our expert panel who will discuss the significant issues raised by these disclosure requirements and the most appropriate strategies for addressing them.

ABA Publishes New Book Environmental Issues In Business Transactions

By E. Lynn Grayson

The ABA has published a new environmental law book focused on environmental considerations in corporate transactions. According to the ABA, the book not only provides practical approaches to minimize or manage environmental liabilities but can also help extract value in transactions when adopted early enough in a deal. The book addresses a broad array of environmental issues that often arise in business transactions including but not limited to Clean Water Act, TSCA, CERCLA, toxic tort, environmental due diligence and successor liability concerns.

Jenner & Block attorneys authored three chapters in this new book: Chapter 5 – Clean Air Act Issues in Business Transactions – Bill S. Forcade (Ret.); Chapter 14 – Using Federal and State Auditing Policies in Business Transactions – Steve Siros and Michael Strong; and, Chapter 15 – SEC Disclosure Obligations: Increasing Scrutiny on Environmental Liabilities and Climate Change Impacts – E. Lynn Grayson and Patricia Boye-Williams.

The book is available from the ABA at www.ababooks.org.

National Toxicology Program’s Twelfth Report Identifies Formaldehyde As A Known Human Carcinogen

By Steven M. Siros

On June 10, 2011, the National Toxicology Program ("NTP") issued its twelfth report on chemicals that are deemed to be carcinogenic to humans and listed formaldehyde as a known human carcinogen.  This is not an unexpected result and comes on the heels of a controversial study of Chinese workers published in early 2010 that concluded that exposure to formaldehyde caused certain kinds of leukemia.  U.S. EPA relied on this study when compiling its June 2010 draft Integrated Risk Information Systems ("IRIS") assessment of formaldehyde.  The International Agency for Research on Cancer also determined that formaldehyde was a human carcinogen in late 2009.  In addition, as part of its recent national air toxics assessment released in March 2011, U.S. EPA concluded that formaldehyde was a significant driver of overall air toxics risks.

National Academy of Sciences Questions U.S. EPA’s Draft Formaldehyde Risk Assessment

By Steven M. Siros

A recent report released by the National Academy of Sciences ("NAS") is critical of U.S. EPA's draft risk assessment for formaldehyde. U.S. EPA's draft assessment, which was released for comment in June 2010, had concluded that formaldehyde was a carcinogen and could cause lymphohematopoietic and nasal cancers. The draft risk assessment also included a strict (and fairly controversial) inhalation unit risk factor of 8.1x10^-2 parts per million^-1. If the draft assessment were to become final (at least in its current form), it would likely result in a myriad of stringent emission regulations on products such as plywood, carpet and natural gas turbines, all of which emit formaldehyde.