TSCA Feed

EPA Proposes New Nanoscale Chemical Reporting Rule

Grayson_Lynn_COLORBy E. Lynn Grayson

 

EPA has proposed one-time reporting and record keeping requirements on nanoscale chemical substances in the marketplace. The proposed rule contains a 90-day public comment period. After the comment period, EPA will review and consider those comments before issuing any final rule. EPA also anticipates a public meeting during the comment period to obtain additional public input.

Specifically, EPA proposed requiring companies that manufacture or process (or intend to manufacture or process) chemical substances in the nanoscale range to electronically report information, including the specific chemical identity, production volume, methods of manufacture, processing, use, exposure and release information, and available health and safety data. The proposed rule would apply to chemical substances that have unique properties related to their size. The proposed rule contains exclusions for chemical substances in the nanoscale range that would not be subject to the rule. In addition to this proposed one-time reporting on chemical substances manufactured or processed as nanoscale materials already in commerce, EPA currently reviews new chemical substances manufactured or processed as nanomaterials prior to introduction into the marketplace to ensure that they are safe.

Chemical substances that have structures with dimensions at the nanoscale -- approximately 1-100 nanometers (nm) -- are commonly referred to as nanoscale materials or nanoscale substances. A human hair is approximately 80,000-100,000 nanometers wide. These chemical substances may have properties different than the same chemical substances with structures at a larger scale, such as greater strength, lighter weight, and greater chemical reactivity. These enhanced or different properties give nanoscale materials a range of potentially beneficial public and commercial applications; however, the same special properties may cause some of these chemical substances to behave differently than conventional chemicals under specific conditions.

EPA is proposing this new requirement under TSCA Section 8(a) to determine if further action, including additional information collection, is needed.

More information about the proposed rule, including the Federal Register notice, EPA fact sheet and press release, are available at http://www.epa.gov/oppt/nano/.

FY2016 EPA Budget Proposal

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By E. Lynn Grayson

 

EPA Administrator Gina McCarthy recently testified before the Senate Environment and Public Works Committee regarding EPA's proposed 2016 fiscal year budget. EPA's 2016 fiscal year from October 1, 2015 through September 30, 2016. EPA is seeking an increase of $453M over the FY2015 budget to $8.6B proposed in FY2016.

FY2016 budget highlights include funding to address:

1.     Making a visible difference in communities across the country—efforts focused on coordination with other federal agencies, states, tribes and stakeholders to provide community support for needed assistance and support for capacity building, planning, and implementation of environmental protection programs;

2.    Addressing climate change and improving air quality—actions to reduce climate change and support the President's Climate Action Plan including new proposed funding for greenhouse gases through commonsense standards, guidelines and voluntary programs;

3.    Protecting the Nation's Waters—focus on to ensure waterways are clean and drinking water is safe because there are far reaching effects when rivers, lakes and oceans become polluted;

4.    Taking steps to improve chemical facility safety—support to improve the safety and security of chemical facilities and reduce the risks of hazardous chemicals to facility workers and operators, communities and responders;

5.    Protecting our lands—continued work to cleanup hazardous and nonhazardous wastes that can migrate to air, groundwater and surface water and soils;

6.    Ensuring the safety of chemicals and preventing pollution—expand chemical safety programs and enhance quality, accessibility and usefulness of information about commercial chemicals and pesticides;

7.    Continuing EPA's commitment to innovative research & development—R&D efforts to address the interplay between air quality, climate change, water quality, healthy communities and chemical safety;

8.    Supporting state and tribal partners—new funds for categorical grants and setting the bar for continuing partnership efforts with states and tribes;

9.    Maintaining a forward looking and adaptive EPA—emphasis on physical footprint including space optimization and essential renovations of laboratories throughout the U.S.; and,

10.    Reducing and eliminating programs—elimination of programs that have served their purpose and accomplished their mission for a cost savings of $44M.

For more information on the proposed budget, visit http://www2.epa.gov/planandbudget/fy2016.

EPA TSCA Penalty Struck Down

Siros_Steven_COLORBy Steven M. Siros

 

On March 13, 2015, the Environmental Appeals Board ("EAB") struck down a landmark $2,751,800 penalty that had been imposed on Elementis Chromium for its alleged failure to comply with the Toxic Substances Control Act's ("TSCA") reporting obligations under Section 8(e). Under TSCA Section 8(e), companies are obligated to report information showing that chemicals and/or mixtures that they manufacture pose substantial health or environmental risks unless it can be demonstrated that U.S. EPA has been "adequately informed" of the health and/or environmental risks.

In November 2013, an Administrative Law Judge ("ALJ") ruled that Elementis had violated Section 8(e) by failing to report to U.S. EPA a 2002 study that allegedly showed an increased risk of lung cancers for workers exposed to hexavalent chromium and upheld a $2.5 million penalty that had been imposed by U.S. EPA. On appeal, Elementis argued that U.S. EPA's guidance on what needed to be reported under TSCA Section 8(e) was ambiguous and that Elementis could not have known that the 2002 study needed to reported, especially in light of the fact that OSHA had concluded that the study lacked any new risk information. Elementis also argued that the five-year statute of limitations provided for in 28 U.S.C. 2462 rendered U.S. EPA's claims time-barred (more than five years had lapsed between the time that Elementis had received the study in 2002 and U.S. EPA's 2010 enforcement proceeding).

The EAB agreed that Elementis was not required to provide the 2002 study to U.S. EPA. The link between hexavalent chromium and lung cancer has been known for decades and none of the information in the 2002 epidemiological study showed that hexavalent chromium exposure results in a more severe effect than lung cancer or a shorter time to the onset of lung cancer than was already documented in prior studies. The EAB noted that U.S. EPA's long-standing interpretive guidance provides that information is exempt from TSCA Section 8(e) reporting if it is corroborative of information U.S. EPA already is aware of. Per U.S. EPA, information is "corroborative" if it does not show that well-established adverse effect is of a more serious degree or different kind than previously known. Information may very well be new, different, and valuable without showing an adverse effect to be substantially more serious. However, unless such new information shows a more serious or different risk, per the EAB ruling, it does not need to be reported under TSCA Section 8(e).

Although the EAB reversed the ALJ's penalty determination, it did give U.S. EPA a victory on the statute of limitations issue. The EAB rejected Elementis' statute of limitations argument, finding that TSCA Section 8(e) imposed a continuing duty to report health and safety information. As such, a Section 8(e) violation constitutes a "continuing violation" for statute of limitations purposes. Thus, the period of limitations for a Section 8(e) violation commences anew each day that the information is not reported to U.S. EPA.

Please click here to read a copy of the EAB's March 13, 2015 decision.


California Seeks to Amend Proposition 65

Siros_Steven_COLORBy Steven M. Siros

 

On January 12, 2015, California's Office of Environmental Health Hazard Assessment ("OEHHA") proposed modifications to California's controversial Proposition 65 regulations. As any company that does business in California should know, Proposition 65 requires that a warning be provided for any product that contains one of hundreds of chemicals identified on the Proposition 65 list if there is any risk of a person being exposed to the listed chemical above a specified threshold. As a result, one is bombarded with Proposition 65 warnings from the point one disembarks onto the jet bridge until the time one arrives at his/her hotel and orders room service. OEHHA's proposed amendments to Proposition 65 appear to do little to ease the regulatory burden on companies that do business in California and/or minimize the burden of having to read all of the Proposition 65 warnings.

Overview of Proposed Changes

Warnings Must Now Identify Specific Chemicals: OEHHA has listed the following 12 chemicals which must be identified by name in any Proposition 65 warning: Acrylamide; Arsenic; Benzene; Cadmium; Carbon Monoxide; Chlorinated Tris; Formaldehyde; Hexavalent Chromium; Lead; Mercury; Methylene Chloride; and Phthalates.

Modified "Safe Harbor" Language: In order to avail oneself of the "safe harbor" warning, the warning must state that a product "can expose you" to a chemical or chemicals as opposed to the old "safe harbor" language that merely required that the warning state that the product "contains a chemical" that is known to the State to cause cancer or reproductive toxicity. In addition, for the following consumer products and services, specific warnings would be required: food and dietary supplements; alcoholic beverages; restaurant foods and non-alcoholic beverages; prescription drugs; dental care; furniture; diesel engine exhaust; parking facilities; amusement parks; designated smoking areas; petroleum products; service station and vehicle repair facilities.

New Lead Agency Website: The proposed regulations would also create a new section on the OEHHA website that would provide detailed information on products and exposures. OEHHA would also have the authority to request that businesses provide more detailed information, including estimated levels of exposure for listed chemicals.

Limited Responsibility for Retailers: Retailers would be relieved from Proposition 65 liability in most circumstances and the responsibility for providing the requisite Proposition 65 warning would fall squarely on the manufacturer, distributer, producer and/or packager.

OEHHA will be accepting written comments on the proposed changes until April 8, 2015. Not surprisingly, OEHHA's proposed regulations have not been warmly received by industry and it is expected that affected businesses and trade associations will be submitting comments in opposition to these proposed amendments. Please click here and here to see the text of the proposed amendments.

Environmental Groups Sue Over Applicability of TRI Data

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By E. Lynn Grayson

 

A recent lawsuit filed by 10 environmental groups against EPA alleges that EPCRA Section 313 Toxic Release Inventory (TRI) reporting should apply to oil and gas extraction companies. The environmental groups want TRI data regulatory requirements about releases to the environment to apply to oil drilling and exploration, hydraulic fracturing and natural gas processing activities.

According to the lawsuit recently filed in the U.S. District Court for the District of Columbia, EPA conducted rulemaking in the 1996-1997 time frame to consider adding other industry sectors to the list of facilities required to complete TRI reporting. At that time, EPA concluded that "oil and gas extraction classified in SIC code 13 is believed to conduct significant management activities that involve EPCRA Section 313 chemicals." EPA did not regulate the oil and gas industry following these earlier rulemaking efforts and for that reason, in 2012, environmental groups petitioned EPA to initiate rulemaking to add the oil and gas industry to TRI reporting requirements. The lawsuit alleges that EPA has not responded to that petition.

The environmental groups also allege that 127 tons of hazardous air pollutants are released by the oil and gas industry annually as well as other releases to the environment through discharges to surface waters, contamination of groundwater, underground injection and disposal in landfills. The lawsuit contends that regulation of the oil and gas industry is even more important today given the expansion of hydraulic fracturing and  horizontal drilling.

The environmental groups bringing the lawsuit include the: Environmental Integrity Project, Center for Effective Government, Chesapeake Climate Action Network, Citizens for Pennsylvania's Future, Clean Air Council, Delaware Riverkeeper Network, Natural Resources Defense Council, Responsible Drilling Alliance, and Texas Campaign for the Environment.

The oil and gas industry has concluded that TRI requirements never were intended to cover such facilities given the few employees typically involved in these operations and the multitude of other regulations applicable to the oil and gas industry. They also look to the 1996-1997 rulemaking effort but with a different recollection recalling that EPA confirmed at that time that "…This industry group is unique in that it may have related activities located over significantly large geographic areas. While together these activities may involve the management of significant quantities of EPCRA section 313 chemicals in addition to requiring significant employee involvement, taken at the smallest unit (individual well), neither the employee nor the chemical thresholds are likely to be met." Industry advocates have criticized these environmental groups, and particularly the Environmental Integrity Project, for attempting to manipulate data in order to oppose oil and gas development and seeking to impose additional regulatory requirements on an industry already heavily regulated.

The TRI program is an expansive regulatory initiative that mandates annual reporting obligations for certain facilities that fall within specific industry sectors, have 10 or more full time employees and manufacture or process 25,000 pounds of toxic chemicals subject to EPCRA Section 313 or otherwise use 10,000 pounds of these same chemicals in any given year. It is typically the case that  many of the oil and gas extraction operations would not meet these reporting thresholds as previously concluded by EPA. It appears, however, that this issue may be debated once again in the context of this case.

Governor Quinn Nixes Illinois Statute of Repose for Construction Asbestos Claims

Siros_Steven_COLORBy Steven M. Siros

 

In one of his last acts on the way out of office, Governor Quinn gave what some describe as a "big Christmas gift for the plaintiffs' bar" when he signed into law a bill that exempts construction-related asbestos personal injury claims from Illinois' ten-year statute of repose. SB 2221 was targeted at plaintiffs suffering from mesothelioma, a form of lung cancer with a long latency period. The bill will go into effect on June 1, 2015.

The bill was opposed by pro-business groups which argued that the bill only further reinforced Illinois' reputation for having an abusive legal climate. According to Illinois Lawsuit Abuse Watch, Madison County, Illinois is home to a quarter of the nation's asbestos litigation and this bill will certainly enable additional asbestos litigation. On the other hand, the bill's sponsors contend that the bill levels the playing field for those suffering from mesothelioma, a disease for which the symptoms may not present themselves for more than 20 years after exposure. Please click here to see a copy of the bill that was signed into law by Governor Quinn.


TSCA Reform Dead for 2014?

Siros_Steven_COLORBy Steven M. Siros

 

Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014.  On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate.  Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a  confidential draft version of the TSCA reform bill that was still being negotiated.  According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith.  In contrast, Senator Boxer has released our confidential proposal to the press.  That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement.  As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.

Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations.  Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment." 

Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council.  In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.

EPA May Garnish Wage Without Court Approval

Grayson_Lynn_COLORBy E. Lynn Grayson

 

EPA recently announced it plans to take final action later this year to authorize collection of non-tax debts by garnishing wages which may occur without a court order. Public comments submitted to date on EPA's proposed action express concern that the Agency may be exceeding its authority and that such actions may deprive individuals of their due process rights.

The EPA has claimed this new authority by citing the Debt Collection Improvement Act of 1996, which gives all federal agencies the power to conduct administrative wage garnishment, provided that the agency allows for hearings at which debtors can challenge the amount or the terms of a repayment schedule. Administrative Wage Garnishment (AWG) would apply only after EPA attempts to collect delinquent debts and after Treasury attempts to collect delinquent debts through other means. The agency would provide notice "prior to any action," giving the debtor the opportunity to "review, contest or enter into a repayment agreement."

EPA's proposal has been actively opposed by a number of watch dog and industry organizations. In addition, members of the House and Senate have argued that the proposed action is an improper expansion of EPA authority and many note it could hurt public impressions of EPA.

EPA's response has been that the Agency is proposing to do what 30 other federal agencies have done and what Congress directly empowered all agencies to do: collect debts owed to the federal government in a responsible and fair way.

EPA's proposed rule to amend its claims collection standards to include AWG can be viewed at 79 Fed. Reg. 37,704.

The amount EPA has collected in fines has increased since President Obama took office with $252M received in 2012, up from $96M in 2009. As Dan Goldbeck of the American Action Forum appropriately noted ". . . the order is certainly controversial and is a strong reminder that even a few pages of the Federal Register can pack serious administrative consequences."


U.S. EPA 2013 TRI Preliminary Dataset Now Available

B Essig_Genevieve_COLORy: Genevieve Essig

 

EPA has released the 2013 Toxic Release Inventory (TRI) preliminary dataset, which contains toxic chemical release and pollution prevention data reported by facilities for the 2013 calendar year.  The currently available dataset includes reporting forms processed as of July 9, 2014 (the annual reporting deadline is July 1); EPA plans to update the dataset throughout the summer and release the complete dataset in October.  The TRI National Analysis Report, which is developed on an annual basis to provide the public information on “how toxic chemicals were managed, where toxic chemicals were released, and how [that year’s] TRI data compare to data from previous years,” will be issued in January 2015 based on this data.  2013 was the first year that facilities were required to submit their TRI reporting forms electronically using the TRI-MEweb reporting application.

The dataset is accessible through EPA’s Envirofacts system, which includes search functions that allow a user to utilize the data in a number of ways.  It is also available through downloadable TRI data files.  EPA suggests that one may use the preliminary dataset to conduct such tasks as the following:

  • Determine if a particular facility has reported to TRI.
  • Determine what chemicals a particular facility is using and releasing into the environment, or otherwise managing as waste.
  • Find out if a particular facility initiated any pollution prevention activities in the most recent calendar year.
  • Begin conducting research into toxic chemical releases across the United States or in a specific geographical area.

Various other online TRI tools will be updated beginning in September.  


Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions

Bandza_Alexander_COLORBy: Alexander Bandza

 

As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.  The electronic (PDF) versions of these chapters are now available online:

The entire publication is available from IICLE here.

Improper PCB Disposal Leads To $13.75M Fine

Siros_Steven_COLORBy: Steven M. Siros

 

In what constitutes the largest penalty for violations of the Toxic Substances Control Act ("TSCA") at a single site, a titanium product manufacturer agreed to pay $13.75 million to settle the Government's claims relating to the improper disposal of PCBs at a site in Henderson, Nevada. According to the allegations in the Government's complaint and accompanying consent decree, Titanium Metals Corporation is alleged to have improperly manufactured and then disposed of PCBs at its titanium manufacturing facility in violation of the TSCA regulations. In addition to agreeing to pay $13.75 million, Titanium Metals also agreed to complete the investigation and remediation of the improperly disposed PCBs. The estimated cost for this investigation and remediation is $7 million.


Happy Earth Day - 2014

By: Robert L. Graham and E. Lynn Grayson

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.

Robert L. Graham (rgraham@jenner.com) and E. Lynn Grayson (lgrayson@jenner.com), Co-Chairs, Environmental, Workplace Health and Safety Practice Group

IICLE Releases New Environmental Law Publication

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By: E. Lynn Grayson

 

The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.

According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.

The following chapters in this publication were authored by Jenner & Block EHS lawyers.

* * *

Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago

Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago

 * * *

Chapter 5 – Illinois Environmental Forums
Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago

 * * *

Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago

The publication is available from IICLE at http://iicle.inreachce.com/.

 

 

 

 

 

Certain Pesticides Fail New U.S. EPA Screening Guide for Volatilization Risks

Siros_Steven_COLORBy: Steven M. Siros

 

On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides"This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.

U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.

In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.

U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.


Steve Siros and Allison Torrence Presenting At CBA Seminar On Environmental Law

Torrence_Allison_COLORBy: Allison A. Torrence

 

On Wednesday, March 19, 2014, Jenner & Block attorneys, Steve Siros and Allison Torrence, will be speaking at a Chicago Bar Association CLE Seminar. The Seminar is titled "Hot Topics in Environmental Law". Steve Siros will be presenting on TSCA: Green Chemistry and Other Reform Issues and Allison Torrence, who is the Legislative Liaison for the CBA Environmental Law Committee, will be presenting on Legislative Updates in Illinois.

The seminar is on March 19, 2014 from 3 – 6 pm at the Chicago Bar Association, 321 S. Plymouth Court.

Speakers and Topics:

CLEAN AIR ACT: DEVELOPMENTS IN THE STARTUP, SHUTDOWN AND MAINTENANCE (SSM) DEFENSE
Karl Karg, Latham & Watkins

ENDANGERED SPECIES ACT: LITIGATION HOOKS AND OPPORTUNITIES
Rebecca Riley, National Resources Defense Council

TSCA: GREEN CHEMISTRY AND OTHER REFORM ISSUES
Steven M. Siros, Jenner & Block LLP

CERCLA: 2013 UPDATES TO ASTM'S PHASE I ESA STANDARD
Erin Veder, ENVIRON

ENFORCEMENT UPDATES
Robert Peachy, U.S. Environmental Protection Agency

LEGISLATIVE UPDATE
Allison Torrence, Jenner & Block LLP

MODERATOR:
Margrethe K. Kearney, Latham & Watkins LLP; Chair, CBA Environmental Law Committee

For more information and to register for the seminar visit www.chicagobar.org/cle.


Ocean Exchange Launches 2014 Call For Solutions

Grayson_Lynn_COLORBy: E. Lynn Grayson

 

The Ocean Exchange has announced the launch of its fourth annual global competition for the 2014 Gulfstream Navigator Award of $100,000 and the 2014 Wallenius Wilhelmsen Logistics Orcelle Award of $100,000. The theme for the 2014 competition is ACCELERATE SUSTAINABILITY, innovations generating economic growth and increased productivity while reducing the use of nature's resources and waste. The Ocean Exchange is seeking innovative and globally scalable solutions, i.e. Solutions Inspiring Action, that are positive for our economies, health, and the environment, while respecting cultures around the world.

To enter the 2014 competition, register your solution in the Ocean Exchange Gallery by 11:59 p.m. (GMT) on May 5, 2014. Register by completing a pre-screening application through http://www.oceanexchange.org. Beginning May 6, Ocean Exchange's international solutions review panel of multi-disciplinary experts will review all applications registered in the Gallery to select:

  • Ten Solutions Inspiring Action to compete for monetary awards – these organizations, which are in need of financial support and global recognition, will be invited to present at the Ocean Exchange, October 5-7, 2014 in Savannah Georgia USA. At the Ocean Exchange invited delegates will select the winners of the $100,000 Gulfstream Navigator Award and the $100,000 Wallenius Wilhelmsen Logistics Orcelle Award.
  • Three Solutions Inspiring Action representing Excellence in Corporate Innovation – these Excellence Award winners will also be invited to present their Solutions Inspiring Action at the Ocean Exchange event in October, 2014.

In 2013 the Ocean Exchange introduced the Solution Inspiring Action Gallery that will become the go - to resource for organizations to identify and connect with Solutions that can advance their business and corporate social responsibility goals. In its first three years, the Ocean Exchange's competition generated applications from North America, South America, Europe, Asia, Australia, Africa and the Middle East, with four of ten finalists in 2013 from outside the United States.

Founded in 2010, the Ocean Exchange is an international platform for accelerating the adoption across industries of Solutions that positively impact environments, economies and health, while respecting cultures around the world. The Board of Governors includes 16 thought - leaders from around the world who represent diverse backgrounds and expertise and share a commitment to innovation. Working together, we AGGREGATE solutions and EMPOWER organizations to achieve their goals.

Lawsuit Seeks To Compel U.S. EPA Disclosure Of Pesticide Inert Ingredients

Siros_Steven_COLORBy: Steven M. Siros

 

On March 5, 2014, several environmental groups filed a lawsuit against U.S. EPA seeking to compel the public disclosure of "inert" ingredients in pesticide products. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), pesticide manufacturers are obligated to list "active" ingredients. However, "inert" ingredients are not currently subject to the same disclosure requirements as "active" pesticide ingredients. According to the lawsuit, U.S. EPA has authority under FIFRA to also require the disclosure of "inert" ingredients which can comprise a significant percentage of a pesticide product's formulation.

As set forth in the complaint, in August 2006, a coalition of public health and environmental organizations submitted a petition requesting that U.S. EPA require the disclosure of certain "inert" chemicals used in pesticide products. In December 2009, U.S. EPA initiated an advanced notice of proposed rulemaking that would have required this disclosure. However, U.S. EPA has taken no further action with respect to this advance notice. The lawsuit seeks to compel U.S. EPA to either complete its proposed rulemaking or otherwise take action with respect to the pending petition.

Please click here to see a copy of the complaint.


Green Climate Fund Board Makes Key Decisions On Operations

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling

 

Last week, the Board of the Green Climate Fund (the "Fund") met in Bali, Indonesia. The Fund was designated as an operating entity of the financial mechanism of the United Nations Framework Convention on Climate Change ("UNFCCC"). The Fund's purpose is to promote, within the context of sustainable development, the "paradigm shift towards low-emission and climate-resilient development pathways by providing support to developing countries to help limit or reduce their greenhouse gas emissions and to adapt to the unavoidable impacts of climate change." The United States and other industrialized countries at the 2009 climate summit in Copenhagen pledged $100 billion a year to the Fund—from public and private sources—as climate aid beginning in 2020.

During the three-day meetings in Bali, the Fund's Board members agreed, among other things, that the Fund will aim for a 50:50 balance between mitigation and adaptation efforts and designate 50% of adaptation funding for "particularly vulnerable countries," including least developed countries, small island developing states and African states. The Board of the Fund also determined that it will maximize engagement with the private sector and be a leader on "gender mainstreaming" and will define its gender action plan in October 2014. Click here for a link to the press release.

EPA 2013 Enforcement Results: Higher Penalties With Fewer Enforcement Proceedings

Siros_Steven_COLORBy:  Steven M. Siros

 

U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA. 

U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters. 

Please click here to go to U.S. EPA's 2013 enforcement results website. 

U.S. EPA Hikes Statutory Environmental Penalties

Siros_Steven_COLORBy: Steven M. Siros

 

Effective December 11, 2013, penalties for violations of certain environmental statutes will go up. According to a final rule issued by the United States Environmental Protection Agency, 20 of the 88 statutory penalty provisions are being increased in order to adjust for inflation. Although the standard daily fine for violations of the CWA, CAA, CERCLA, and TSCA will remain at $37,500, other penalties have increased substantially. For example, the fine for violating a CAA State Implementation Plan jumped from $295,000 to $320,000 and the maximum fine for hazardous releases under CERCLA is increasing from $107,500 to $117,500. Per the Debt Collection Improvement Act of 1996, U.S. EPA is required to review its penalties every four years and adjust those penalties to take into account inflation and cost of living increases under the consumer price index. Please click here to see a copy of the final rule and accompanying table that reflects these penalty adjustments.


EPA Ordered To Move Forward With Coal Ash Waste Rule

Torrence_Allison_COLORBy Allison A. Torrence

 

On October 29, 2013, a federal district court judge ordered EPA to submit to the court within 60 days a plan and schedule for finalizing coal ash rules under the Resource Conservation and Recovery Act (RCRA). Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. Oct. 29, 2013). Coal ash, also called coal combustion residuals (CCRs), is created as a byproduct of coal combustion at power plants. Coal ash is generally disposed of in either liquid form in surface impoundments or in solid form at landfills and is largely exempt from hazardous waste and solid waste regulations under RCRA.

Recent interest in regulating coal ash waste was prompted by the December 2008 spill at a coal ash storage facility for the Tennessee Valley Authority’s Kingston Fossil Plant. An estimated 1 billion gallons of coal ash slurry was released from the Kingston facility after a retaining wall in the surface impoundment failed. In response to the coal ash spill, in June 2010, EPA proposed to regulate coal ash to address the risks from the disposal of coal ash waste. The 2010 proposed rules provided two options for regulating coal ash: (1) regulate coal ash as a special waste under RCRA’s hazardous waste regulations; or (2) regulate coal ash under RCRA’s non-hazardous solid waste regulations. EPA has received approximately 450,000 comments on these proposed rules and has published additional data on the proposed rules, but has yet to finalize any regulations. Under the solid waste proposed rule, current surface impoundments would have to be retrofitted with new composite liners or cease operations within five years. Existing landfills would not need new liners, but would require groundwater monitoring. In the event that EPA were to elect to regulate coal ash as a special waste, coal ash impoundments or landfills would need RCRA permits and surface impoundments would effectively be phased out of use due to land disposal restrictions. Although EPA has indicated that the second option - regulating coal ash as a non-hazardous solid waste - is the most likely outcome, it has yet to issue final regulations.

After almost four years of inaction on the regulatory front, several environmental organizations sued EPA under the citizens’ provisions of RCRA for failure to finalize its RCRA regulations for coal ash. The environmental groups argued that under the statutory language in RCRA, EPA is required to review and, if necessary, revise hazardous waste and solid waste regulations every three years. Thus, they argued that EPA was required to review its decision not to regulate coal ash as a hazardous waste or solid waste at least every three years, which it has failed to do. In his October 29th Memorandum Opinion, District Court Judge Walton ruled in favor of EPA on a number of counts, holding that coal ash is exempted from RCRA’s general review and revision process for hazardous wastes. Nevertheless, Judge Walton ruled in favor of the environmental groups on the issue of non-hazardous solid waste regulations. Judge Walton held that EPA has a non-discretionary duty to review and, if necessary, revise solid waste regulations concerning coal ash at least every three years. Judge Walton declined to provide a set deadline for EPA to issue its review or regulations. Instead, he ordered EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations under RCRA. EPA must submit this proposed schedule within 60 days (by December 30, 2013), at which point the environmental groups will have an opportunity to file a response to EPA’s proposed schedule.

EPA Proposes Increased Oversight Of State Enforcement Activities

Siros_Steven_COLORBy Steven M. Siros

 

U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.

The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.

In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.

The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing  environmental laws.


Governor Approves Bill That Could Curb Some Proposition 65 Claims

Siros_Steven_COLORBy Steven M. Siros

 

California Governor Jerry Brown recently signed into law a measure that may curb what many believe to be meritless Proposition 65 claims against certain businesses in California. The current modus operandi for the Proposition 65 plaintiffs' bar in California is to hire people to visit restaurants, bars, and other businesses in the hope that the requisite Proposition 65 warnings have not been posted. A 60-day notice letter is then sent out and in most cases, the targeted business quickly settles the claim with plaintiffs' counsel pocketing a significant percentage of the settlement as "attorneys' fees".

Under the new law, businesses that are targeted by a Proposition 65 plaintiff for allegedly failing to post the requisite warning regarding exposure to alcoholic beverages, tobacco smoke, engine exhaust, and potentially harmful chemicals formed during the cooking process would have 14 days to post the requisite notice and pay a $500 fine. Assuming that the notice is posted within this 14-day period and the fine paid, no further action could be taken by a private plaintiff (it should be noted that this new law would not prohibit the Attorney General from bringing a separate action for violation of the Proposition 65 statute).

Since it will no longer be profitable for the Proposition 65 plaintiffs' bar to bring these types of claims, the expectation is that California restaurants and other similar businesses will no longer be targeted simply for having served a hamburger or operating a parking lot without having posted a warning.  Of course, that probably just means that the plaintiffs' bar will focus more attention on other consumer products and businesses would be well served to verify that the products that they sell and distribute in California are compliant with Proposition 65.


ECHA Reports Significant Non-Compliance And Limited Enforcement Of REACH Requirements

Siros_Steven_COLORBy Steven M. Siros

 

According to a recent report issued by the European Chemicals Agency (ECHA), one out of every ten companies was found to be using at least one unregistered chemical substance. Under the REACH regulations, companies are prohibited from using chemical substances unless those substances were registered on or before December 1, 2008. In addition, the ECHA report found that 67 percent of the inspected companies were in violation of one or more provisions of REACH or the Classification, Labeling and Packaging regulations (which complement the REACH regulations). Notwithstanding the fairly systemic non-compliance noted in the report, enforcement was very sporadic with fines being levied in only eight cases and criminal proceedings being initiated in only four cases (compared to 789 total instances of non-compliance). Under REACH, enforcement authority is vested with each individual member state. Responding to the fairly low incidence of enforcement actions by individual member states, ECHA issued a statement noting that failure to comply with REACH's registration requirements constituted a "major" breach of REACH and that the individual member states should adopt an enforcement approach that is "proportional, effective and dissuasive." 

Please click here to see a copy of the ECHA report.


Environmental Group Ordered To Pay Disney’s Attorneys’ Fees For Filing Baseless Reverse False Claims Act Lawsuit

Siros_Steven_COLORBy Steven M. Siros

 

In the latest saga of what has become a long running dispute between plaintiff RBC Four Co. LLC ("RBC") and the Walt Disney Company ("Disney"), a federal district court judge dismissed RBC's reverse False Claims Act allegations and ordered RBC to reimburse Disney for its attorneys' fees incurred in defending what the court determined to be baseless claims. According to the RBC complaint, since at least 1991, Disney has dumped dangerous chemicals into the waters surrounding its Burbank, California studios. In 1991, U.S. EPA sent Disney an information request seeking information relating to contamination at a Superfund Site in the San Fernando Valley and Disney was alleged to have responded to U.S. EPA with misleading statements and/or documents concerning its handling of hazardous materials at the Burbank site.  In its complaint, RBC argues that Disney's misleading response to U.S. EPA's information request and other information it provided to regulators over the past decade constituted efforts by Disney to avoid payment of obligations owed to the Government pursuant to various environmental laws and regulations, including the Clean Water Act and CERCLA.

The court found RBC's complaint to be devoid of any facts showing a particular legal obligation that Disney avoided by making allegedly false representations to the Government. In support of its decision to dismiss RBC's complaint without leave to replead, the court noted that the type of "obligations" that might give rise to a reverse False Claims Act claim do not extend to potential liabilities under an environmental statute as alleged by plaintiffs.

In ruling on Disney's request for sanctions, the court found that RBC's claims were "legally baseless from an objective perspective and cannot have been the product of competent inquiry." The court further noted that this was the fourth qui tam action that RBC (or one of its affiliates) had brought against Disney and is one of 12 actions that had been filed against Disney since 2007. Each of these actions has arisen out of the same or similar facts and several of those claims had been dismissed with prejudice. Although the court declined to designate RBC as a "vexatious litigant" as requested by Disney, the court noted that the record reflected that RBC had engaged in a pattern of duplicative and excessive litigation against Disney, suggesting that such a designation might be appropriate if future claims were filed. The court also ordered RBC to pay Disney's attorneys' fees and costs in defending the litigation. Please click here to see a copy of the court's order.