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February 2013

Illinois Working On Development Of Fracking Regulations

Siros_Steven_COLORBy Steven M. Siros


Although leases have been signed on thousands of acres of land in southern Illinois, oil and gas companies have yet to aggressively initiate hydraulic fracturing in Illinois in large part because of the absence of laws regulating that practice. That may soon change, however, in light of efforts underway in Springfield to craft comprehensive fracking rules.

The Illinois Hydraulic Fracturing Act (H.B. 25), which was introduced in the the Illinois House of Representatives on February 21, 2013, would grant the Illinois Department of Natural Resources the authority to promulgate rules and issue permits with respect to hydraulic fracturing activities.  The proposed bill would further require the disclosure of chemicals used in the fracking process, impose well construction standards to minimize source water contamination, establish setbacks with regard to residential and nearby water sources, and provide public input opportunities when fracking permits are issued.  

The bill represents the collaborative efforts of industry, environmental groups and the Illinois Attorney General. We will continue to track this bill as it makes its way through the Illinois legislature.

SEC Requires Inclusion Of Climate Change Proposal In Proxy Materials

Grayson_Lynn_COLORBy E. Lynn Grayson


In another sign of the SEC's increased focus on environmental and climate change-related risks, the Commission this week informed PNC Financial Services Group, in a letter, that it must include in its proxy materials a shareholder proposal seeking an assessment of greenhouse gas emissions and climate change risks resulting from its lending portfolio. The SEC disagreed with PNC's position that the climate change proposal could be excluded under the 1934 Securities Exchange Act Rule 14a-8(i)(7) which permits the exclusion of proposals dealing with ordinary business operations.

It is important to note that the SEC's Attorney-Advisor Angie Kim specifically stated in its response to PNC that "… we note that the proposal focuses on the significant policy issue of climate change." (emphasis added)

The SEC's decision about PNC's proxy materials suggests that the Commission may be trending towards a greater reliance and support of its 2010 guidance titled Commission Guidance Regarding Disclosure Related to Climate Change. This guidance provided public companies additional insight into existing disclosure requirements as they apply to climate change. The requirement for disclosing climate change risks is the same as those for other risks – whether or not the risk poses a material liability to the company.

More information about this determination is available at

State of Green Business 2013

Grayson_Lynn_COLORBy: E. Lynn Grayson


GreenBiz and Trucost have released a new report State of Green Business 2013 that details natural capital or environmental costs as well as identifies the top ten sustainable business trends in 2013.

Environmental cost data addressed include for example:

  • Environmental costs rose 8% between 2007-2011
  • Environmental costs in 2011 for U.S. companies was $352 million
  • "absolute" environmental cost or financial value of companies environmental impacts was $351.6 billion in 2011 for U.S. companies

The top ten sustainable business trends of 2013, briefly summarized, are as follows:

  1. companies take stock of natural capital
  2. sustainability becomes a matter of risk and resilience
  3. corporate reporting gets integrated
  4. the sharing economy makes its mark
  5. commerce gets relocalized
  6. machine to machine (M2M) enables to use of greener machines
  7. sustainability goes app crazy
  8. materiality becomes material for investors
  9. companies look past their goals
  10. peak sustainability threatens corporate progress

This report is rich with data addressing, among other topics: direct and supply chain environmental impacts; absolute environmental costs; energy consumption rates; GHG emissions; water intensity; air emissions; wastes; recycling; and, sustainability.

The report, State of Green Business 2013, is available for free download with registration at

U.S. EPA Releases Chemical Data Reporting Information

Siros_Steven_COLORBy Steven M. Siros


On February 11, 2013, U.S. EPA released 2012 Chemical Data Reporting ("CDR") information on more than 7,600 chemicals in commerce.  Under the CDR rule, which was promulgated under TSCA, companies are required to report manufacturing and import data if the site-specific production or import volume of the chemical exceeds 25,000 pounds.  According to U.S. EPA Administrator Lisa Jackson, "[t]he 2012 Chemical Data Reporting information will help EPA and others to better assess chemicals, evaluate potential exposures and use, and expand efforts to encourage the use of safer chemicals."  Administrator Jackson further noted that "[t]he CDR data also highlight the clear need for TSCA reform."   The 2012 CDR information is available at

EPA Releases New ECHO State Enforcement Data

Grayson_Lynn_COLORBy E. Lynn Grayson


U.S. EPA just released state dashboards and comparative maps that provide the public with information about the performance of state and EPA enforcement and compliance programs across the country.

Most states and tribes in the United States have the authority to implement and enforce many of the nation's air, water and waste laws. The dashboards and maps include state level data from the last five years and provide information including the number of completed inspections, types of violations found, enforcement actions taken, and penalties assessed by state. To ensure data quality, EPA made the maps and dashboards available to the states in advance of this public release, in order to provide an opportunity to make any necessary data corrections.

Users can customize the dashboards to view state activity, EPA activity, or combined activity. Where available, the site also allows users to view national averages and display state enforcement trends over time.

The interactive state performance dashboards are located on EPA's Enforcement and Compliance History Online (ECHO) website. ECHO is an EPA transparency tool that allows the user to map federal and state inspection, violation, and enforcement information for more than 800,000 regulated facilities. The state dashboards and comparative maps that are available in ECHO are part of EPA's commitment to increasing transparency and providing data to the public in a format that is easy to understand and use.

EPA will host a webinar demonstrating how to use the state dashboards and comparative maps now available in ECHO on Tuesday, February 12, at 3 p.m. EST. The demonstration will highlight the new features added to the tool, important information about the data, and how to compare data by state.

It seems enforcement data is more readily available than ever before including new information on state enforcement discussed herein. This kind of data needs to be viewed with some caution to ensure that information is accurate and updated on a timely basis. Companies need to view the existing and new ECHO data about their facilities and communicate with EPA if there is incorrect information identified about their operations. 

To register for the ECHO webinar, go to

To view the state performance dashboards and comparative maps, visit

EPA's ECHO website can be viewed at




Water Scarcity Identified As Critical Risk At DAVOS 2013

Grayson_Lynn_COLORBy E. Lynn Grayson


At the recent 43rd World Economic Forum Annual Meeting in Davos, Switzerland, water scarcity was identified as the second most important risk facing the world in the years ahead. At an open forum titled Water: Scarcity and Stress, commentators noted that water is tightly connected to food production, energy, climate change, economic growth and security. Sizable parts of the world already lack an adequate water supply, while population growth and improved living standards are expected to exacerbate the problem.

The World Economic Forum (WEF) has continued to focus on issues of water security and water scarcity including two important reports:

  1. The Water Resources Group – Background, Impact and the Way Forward (2012)
  2. Water Security – The Water – Energy – Food – Climate Nexus (2011)

More information about the WEF water initiative as well as these reports and updates on DAVOS 2013 is available at

Will Ninth Try Be The Charm?—DTSC Issues Ninth Draft Of Green Chemistry Regulations

Siros_Steven_COLORBy Steven M. Siros


California's Department of Toxic Substances Control ("DTSC") issued its ninth draft of the Green Chemistry Initiative in an effort to respond to industry criticisms of early versions of the regulations. (See prior blog on Green Chemistry Initiative.) The comment period on this latest draft began on January 29, 2013 and will run through February 28, 2013.   

In its latest version of the regulation, DTSC made a number of positive changes (from an industry perspective), including:

  • Limiting DTSC's authority to regulate only product ingredients that are on the chemicals of concern list (as opposed to earlier versions of the regulations that would have allowed DTSC to force companies to address product ingredients not on the chemicals of concern list);
  • Provides an upfront mechanism for companies to seek exemptions for products regulated under other public health and safety laws; 
  • Trade secret protections have been revised for the benefit of manufacturers; and
  • Providing that the development of the "Priority Products" list will be done through a separate rulemaking process.

Notwithstanding that these revisions were a result (at least in part) of industry comments, the draft regulations significantly expand the list of chemicals that are on chemicals of concern list (adding European Union Category 1 respiratory sensitizers and Clean Water Act 303(d) list chemicals) as well as expanding the scope of the public review and comment provisions. It is expected that these draft regulations will be the subject of extensive comments by both industry and environmental groups. However, the consensus also appears to be that this will be the last set of draft regulations that will be issued by DTSC. At the close of the public comment period on February 28, 2013, it is expected that these regulations will become effective shortly thereafter. Please click here to go to DTSC's Green Chemistry website to see a copy of DTSC's lastest set of draft regulations.