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


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


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/.