Corporate Environmental Lawyer

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.

Year One Of Two-Year EPA Phaseout Of Paper And Optical Disc TSCA New Chemical Notice Reporting Complete

By Genevieve J. Essig

On April 6 of last year, EPA issued a final rule initiating a two-year phaseout of the use of paper and optical disc (e.g., CD) to submit TSCA Section 5 new chemical notices to EPA. Year one is now complete, meaning that companies may no longer submit new chemical notices (including premanufacture notices (PMNs)), or the often voluminous accompanying support documents, on paper to EPA. Companies must now submit these notices using either EPA's Central Data Exchange (CDX) or optical disc. After April 6, 2012, the phaseout will be complete, and optical discs will no longer be accepted. All submitters from that point forward will have to use CDX.

Click here to view EPA's news release. Click here to view the April 6, 2010, final rule.

Representative Waxman Makes End Run Around TSCA Regulations

By Steven M. Siros

On April 1, 2011, Representative Henry Waxman (D-CA) sent letters to 15 chemical manufacturers asking them to submit to Congress information pertaining to certain chemical products that are classified as persistent, bioaccumulative and toxic ("PBT"). The letters request information concerning (i) the volume of PBT chemicals produced, (ii) specific consumer products that might contain these PBT chemicals, and (iii) what, if any, testing  has been done to address any risks that might be associated with these products. To see examples of these letters, please click here.

Allison Torrence to Speak at Northwestern School of Law

By Allison A. Torrence

Allison Torrence will be speaking at Northwestern School of Law on April 5th, 2011, at a panel discussion about Careers in Environmental & Animal Law.  Ms. Torrence will discuss her education and training in environmental law and take questions from law students eager to learn about practicing in the environmental law field.  Ms. Torrence will also describe her work experience in the Environmental, Energy and Natural Resources Law Practice at Jenner & Block.

NRDC Report Highlights 42 Disease Clusters in 13 States

By Steven M. Siros

A recent report issued by the Natural Resources Defense Council ("NRDC") and the National Disease Clusters Alliance ("NDCA") has identified 42-alleged disease clusters in 13 states. [Please click here for a map of these locations.] According to the report, there is an increased incidence of cancer, birth defects and other chronic illnesses in these disease clusters. The study, which focused only on the following 13 states (Texas, California, Michigan, North Carolina, Pennsylvania, Florida, Ohio, Delaware, Louisiana, Montana, Tennessee, Missouri and Arkansas), evaluated research compiled by federal, state and local officials, as well as peer-reviewed studies, to identify the 42 disease clusters. According to the NRDC and the NDCA, the purpose of the report was to highlight the need for (1) federal agencies to work cooperatively with state and local officials to investigate these disease clusters, (2) reduction or elimination of contaminant release into the air, water and soil and (3) chemical manufacturers to better ensure the safety of their products. Plans are apparently underway to evaluate whether disease clusters exist in each of the remaining 37 states. The NRDC is set to testify before the Senate Environment and Public Works Committee on Tuesday, March 29, 2011 on the results of this report. For a copy of the report, please click here.