Thank you very much for your support of our blog, Corporate Environmental Lawyer, over the past five years. We hope that you have found our efforts to bring you updates and insights on critical environmental, health & safety developments to be helpful and informative. Highlights this year include a revamp of the blog featuring a new look and responsive format for better access on mobile devices and a week-long special Earth Day series.
If you enjoy reading our blog and/or follow our blog on Twitter, please consider nominating it for inclusion on the American Bar Association Journal’s annual list of the 100 best legal blogs (“blawgs”), the Blawg 100. The nomination process is simple and takes less than five minutes:
On September 3, 2015, Stephen Armstrong will moderate a mid-day panel titled “New Approaches to Marketing and Redeveloping Surplus Properties” at the 16th National Brownfields Training Conference, to be held at the Hilton Chicago, 720 S. Michigan Ave., from September 2-4. The panel description provides:
Last week, on July 15, 2015, the US EPA revised the 1988 underground storage tank (UST) regulation and the 1988 state program approval (SPA) regulation. Some of these changes had their roots in the Energy Policy Act of 2005, which set out additional requirements in states that received federal RCRA Subtitle I money from EPA. Part of the impetus for this regulation was to apply these changes to Indian country and all states. Other changes relate to revising the regulations in light of technological changes and challenges that have surfaced over the years. The effective date of the regulations is October 13, 2015. Some of the key changes are set out below.
On June 30th, Jenner & Block will host a special webinar, “Successful Environmental Liability and Risk Deals,” at 12:00 noon. Speakers include Lori Prokes, President, DeNovo, and David Heidlauf, Principal, Ramboll Environ, discussing business, legal, and technical aspects of environmental liability buyout transactions. They also will discuss two case studies for successful projects in WI and NJ, offering practical insights and recent experiences gained from these matters. Partners Lynn Grayson and Steve Armstrong will moderate this webinar.
You are invited to join us for this webinar. More information about the webinar and how you may RSVP is detailed here.
Alexander J. Bandza To Moderate Teleconference on This Year’s Environmental, Energy Supreme Court Cases
Next month, on July 9, 2015, Associate Alexander J. Bandza will moderate a lunchtime ABA teleconference titled “Supreme Court Year in Review: The Environmental Cases.” The event will feature a discussion of the following four Supreme Court cases from this past term that will affect environmental and energy lawyers: (1) Kansas v. Nebraska and Colorado; (2) Michigan v. EPA; (3) Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund; and (4) Oneok Inc. v. Learjet, Inc.
A distinguished panel of speakers will discuss these cases:
- Shannon S. Broome, Katten Muchin Rosenman LLP, Oakland, CA
- Anne M. Carpenter, Katten Muchin Rosenman LLP, Washington, DC
- Stephen R. McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, The University of Kansas School of Law and Solicitor General of Kansas, Lawrence, KS
- A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Chicago, IL
A question-and-answer session to follow. Registration and additional information is available here.
Masses of small red tuna crabs have been washing up along San Diego, California area beaches from Ocean Beach to La Jolla. The species, Pleuroncodes planipes, is unique in that it can live its entire life cycle, from larva to adulthood, in the water column from surface to seafloor. Accordingly, it can be particularly vulnerable to being carried along by winds, tides, and currents.
D.C. Circuit Rejects Enviro and Industry Challenges to EPA’s Nonhazardous Secondary Materials Rule; Implications for Combustion Standards Remain
Last week, the D.C. Circuit issued an unpublished per curiam decision in Solvay USA Inc. v. U.S. EPA, No. 11-1189 (D.C. Cir.), rejecting all arguments from both environmentalists and industry against EPA’s non-hazardous secondary material (NHSM) regulations under the Resource Conservation and Recovery Act (RCRA). By way of background, the characterization of non-hazardous secondary materials pursuant to the NHSM has implications under the Clean Air Act (CAA) for the standards by which those materials can be incinerated in combustion units.
World Environment Day (WED) is the United Nations’ principal vehicle for encouraging worldwide awareness and action for the environment. The WED theme this year is “Seven Billion Dreams. One Planet. Consume With Care.” Learn more about WED, other UN environmental initiatives, and celebrations around the world today at http://www.unep.org/wed.
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
- Mobile and tablet responsive technology
- A trending-categories cloud list
- Easy-to-use social sharing buttons
Streamlined navigation menus
- Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
EPA has denied the January 14, 2010 petition submitted by the Food & Water Watch and Beyond Pesticides to ban the antimicrobial pesticide triclosan. The petition requested that EPA take the following regulatory actions:
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA): (1) reopen the Reregistration Eligibility Decision (RED); (2) issue a notice of cancellation of the registrations of all products containing triclosan; and (3) concurrently issue an emergency order to immediately suspend the existing triclosan registrations.
Clean Water Act (CWA): (1) impose technology-based effluent limitations; (2) establish healthbased toxic pollutant water quality pretreatment requirements; and (3) impose biosolids regulation for triclosan.
Safe Drinking Water Act (SDWA): conduct a comprehensive assessment of the appropriateness of regulating triclosan under SDWA.
Endangered Species Act (ESA): (1) conduct a biological assessment; and (2) engage in consultation with the Secretary of the Interior and the Secretary of Commerce.
Back to the Future: EIA’s Analysis of EPA’s Clean Power Plan Concludes that Power Sector CO2 Emissions May Drop to 1980s Levels
In June 2014, EPA issued its proposed Clean Power Plan to regulate CO2 emissions from existing power plants under section 111(d) of the Clean Air Act. The Clean Power Plan proposes to limit carbon emissions from existing fossil fuel-fired electric generating units, including steam generating, integrated gasification combined cycle, or stationary combustion turbines operating or under construction by January 8, 2014. In August 2014, Representative Lamar Smith requested that the U.S. Energy Information Administration (EIA) analyze the effects of the Clean Power Plan on, among other things, greenhouse gas emissions, electric markets, and coal plants retired.
Last week, the EPA-specific listing on the website of the Office of Information and Regulatory Affairs was updated with timelines on the EPA’s regulatory efforts. Of potential interest, in chronological order of expected release, are the following rules:
- May 2015 (Final Rule). Clean Water Rule: Definition of “Waters of the United States”. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed a rule for determining whether a water is protected by the Clean Water Act.
- June 2015 (ANPRM and NRPM). Proposed Greenhouse Gas Endangerment and Cause or Contribute Findings Under CAA Section 231 for Aircraft, and ANPRM on the International Process for Reducing Aircraft GHGs and Future Standards. In this action, EPA will determine whether greenhouse gas emissions from aircraft cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. Concurrent with these proposed findings, EPA will release an Advanced Notice of Proposed Rulemaking (ANPRM) to provide an overview of the International Civil Aviation Organization's (ICAO) efforts to reduce greenhouse gas emissions.
- June 2015 (NPRM). Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles--Phase 2. These second sets of standards would further reduce greenhouse gas emissions and fuel consumption from a wide range of on-road vehicles from semi-trucks to the largest pickup trucks and vans, and all types and sizes of work trucks and buses.
- July 2015 (NPRM). Non-Hazardous Secondary Materials--Additions to List of Categorical Non-Waste Fuels; Other Treated Woods. The Treated Wood Council has submitted a petition for various types of treated wood to be added as categorical non-waste fuels. Materials classed as NHSM can be burned for fuel in lightly regulated boilers rather than more strictly regulated incinerators.
New Jersey Assembly Unanimously Passes Bill Broadly Allocating Liability and Damages for Hazardous Substance Discharges from Offshore Drilling Platforms
Last week, the New Jersey Assembly unanimously passed a bill, A4258, which is notably broad in its language on allocating liability and damages for releases of hazardous substances from offshore drilling platforms. The bill would supplement N.J.S.A. 58:10-23.11, the New Jersey Spill Compensation and Control Act, which defines hazardous substances to include petroleum and petroleum products. The bill sets out that potentially liable parties include “[a]ny person who discharges a hazardous substance from a drilling platform” or “is in any way responsible for a hazardous substance that is discharged from a drilling platform.” (Emphasis added.) This discharge need not occur within the jurisdiction of New Jersey so long as the hazardous substance eventually “enters the waters of the State.” Persons that meet the above two conditions are “strictly, jointly and severally [liable], without regard to fault,” for:
Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.
According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.
A new study released by Morgan Stanley confirms that investors appear to place a premium on sustainability yet believe that sustainable investments require some financial sacrifice. Two key findings include: 1) nearly three-quarters (72%) of those surveyed believe that companies with good environmental, social, and governance (ESG) practices can achieve higher profitability and are better long-term investments; and 2) 54% believe that sustainable investing involves a financial trade off.
The study set out to analyze potential performance and risk differences between sustainable and traditional investments. A range of studies on sustainable investment performance were reviewed along with performance data for 10,228 open-ended mutual funds and 2,874 Separately Managed Accounts (SMAs) based in the U.S. Through the review, Morgan Stanley concluded that investing in sustainability has usually met, and often exceeded, the performance of comparable traditional investments. Specific findings include:
- Sustainable equity mutual funds met or exceeded the median return of traditional equity funds for 64% of the time periods examined.
- Sustainable equity mutual funds also had equal or lower median volatility for 64% of the time periods examined.
- For the longest time period (seven years trailing, 2008-2014), sustainable equity mutual funds met or exceeded median returns for five out of six different equity classes examined (for example, large-cap growth).
- Long-term annual returns of the MSCI KLD 400 Social Index, which comprises firms scoring highly on environmental, social, and governance (ESG) criteria, exceeded the S&P 500 by 45 basis points between its inception in 1990 to the end of 2014.
The study was conducted by the Morgan Stanley Institute for Sustainable Investing. The Institute seeks to accelerate mainstream adoption of sustainable investing by developing industry-leading insights and scalable finance solutions to address global challenges.
Minnesota House and Senate Each Pass Bills Banning The Sale and Manufacture of Products Containing Plastic Microbeads
"Microbeads" are synthetic microspheres widely used in cosmetics, skin care and personal care products, which are added as exfoliating agents. Public interest groups have expressed concern that, because wastewater systems may be unable to filter microbeads from effluent released into public waterways, microbeads are entering the marine food chain. This week, the Minnesota House and Senate each passed bills that would ban the manufacture and sale of products containing plastic microbeads.
Both bills contain the same phased timeline:
- Effective December 31, 2018, no one can sell personal care products containing synthetic plastic microbeads, but persons can continue selling over-the-counter drugs containing synthetic plastic microbeads. However, that same day, no one can manufacture for sale over-the-counter drugs that contains synthetic plastic microbeads.
- Effective December 31, 2019, no one can sell over-the-counter drugs containing synthetic plastic microbeads.
President Obama signed the bipartisan Energy Efficiency Improvement Act of 2015 on April 30, 2015 (the “Act”), which encourages energy and water efficiency through a variety of measures. Authored by U.S. Senators Rob Portman, an Ohio Republican, and Jeanne Shaheen, a New Hampshire Democrat, Bill S. 535 was passed by the Senate on March 27, 2015 and by the House on April 21, 2015.
The Act is comprised of three separate sections: the Better Buildings Act of 2015, Grid-Enabled Water Heaters, and Energy Information for Commercial Buildings, and includes, among other things, the following:
On April 28, 2015, EPA announced the availability of a problem formulation and initial assessment document for the Work Plan Chemical 1,4-Dioxane and opened a 60-day public comment period until June 29. The notice also seeks input on EPA's Office of Pollution Prevention and Toxics' (OPPT) initial concerns about the industrial solvent 1,4-Dioxane.
Following receipt of comments on the problem formulation and initial assessment document and consideration of any additional data or information received, EPA will initiate a risk assessment which is the process to estimate the nature and probability of adverse health and environmental effects in humans and ecological receptors from chemical contaminants that may be present in the environment.
How did NASA astronaut Scott Kelly give the world some "perspective" on Earth Day this year?
Scott Kelly, who is spending a year aboard the International Space Station, posted his first "geography quiz" photo on Earth Day. He plans to tweet a photo taken from the station of an undisclosed location on the planet every Wednesday and invite viewers to guess what it depicts. Follow him @StationCDRKelly.
Today marks the start of Earth Day Texas, an annual, three-day festival held in Dallas’s Fair Park that seeks to elevate environmental awareness and influence the way Texans think, live, and work. This is the five-year anniversary of the Earth Day Texas organization. The festival features speakers, music, and interactive exhibits. Of interest is the “Eco-Expo,” the world’s largest exhibition dedicated to environmental stewardship, and the first-ever “Eco-Conference,” a day of programming specifically designed to engage business, civic, and community leaders in conversations about building a sustainable future.
For more information, visit the website here.
Earth Day 2015: New U.S. Treasury Paper Builds on Momentum for Public-Private Partnerships to Address Public Infrastructure Shortfalls
The problem of aging public infrastructure in the U.S. and around the world is well recognized. For example, U.S. businesses pay $27 billion in additional freight costs because of the poor conditions of roads and other transportation infrastructure. Water systems continue to deteriorate throughout the United States, resulting in approximately 240,000 water main breaks each year with associated property damage and repair costs. The increased frequency and magnitude of extreme weather events associated with climate change puts additional strain on public infrastructure. To address these challenges, President Obama has been particularly active in this area. He launched his Build America Investment Initiative in July 2014, and, earlier this year, he proposed Qualified Public Infrastructure Bonds, among other ideas, to spur investment in public infrastructure.
Building on this momentum, on Earth Day this year, the U.S. Treasury released a White Paper titled “Expanding the Market for Infrastructure Public-Private Partnerships: Alternative Risk and Profit Sharing Approaches to Align Sponsor and Investor Interests.” The paper presents three incentive structures for public-private partnership contracts that can potentially benefit both public sector sponsors, by delivering higher quality per dollar, and private investors, by generating attractive returns. The paper also includes an overview on public-private partnership deals closed between April 2012 and April 2015, along with their incentive structure.
A lot of the exciting action on public-private partnerships to address public infrastructure shortfalls continues to happen at the city level, with significant assistance from social entrepreneurs and foundations. For example, the RE.invest Initiative, backed by re:focus partners, is a unique collaboration among eight partner cities and engineering, law, and finance firms to create new public-private partnerships for resilient infrastructure. It recently released its report, “A Roadmap for Resilience,” which details the collaboration and provides recommendations for government officials, developers, financiers, and communities engaged in investing in resilience and reinvesting in communities. Another city-focused effort is 100 Resilient Cities, backed by the Rockefeller Foundation. Cities selected for the program receive funding to hire a Chief Resilience Officer; assistance in developing a resilience strategy; and access to a platform of innovative private and public sector tools to help design and implement that strategy.
How did NASA astronaut Scott Kelly give the world some "perspective" on Earth Day this year?
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1. Alphabetically, what are the second three states with OSHA-approved State Plans? Connecticut, Hawaii, and Illinois. See the full list here.
2. The following provision is known as what?
"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
The General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act of 1970).
This past weekend in Vietnam, Ho Chi Minh City hosted only its second “Earthday Vietnam” event, following the country's first-ever event last year. The theme for this year’s event was “More Exercises, More Eco-Friendly,” which was meant to inspire the public to be more motivated and to pick up wholesome hobbies. The day featured activities like the “Green Run,” where runners dodged obstacles made from recycled materials like old tires, and the “Crazy Dance,” a flash mob featuring thousands of participants.
A press release and photos of the event are available here.
Chemicals, natural and synthetic, are all around us. We can’t live life without them--and we wouldn’t want to. But some chemicals are toxic to humans and the flora and fauna with which we share the earth. Replacing toxic substances found in the workplace, distributed in commerce and contained in wastes with less harmful materials protects employees, consumers and the environment at the same time. Safe Chemical and Green Chemistry initiatives seek to do just that.
OSHA estimates that each year more than 190,000 employees become ill and 50,000 die as a result of chemical exposures. Environmental and health and safety regulations restrict only a small percentage of the chemicals in use. Active chemical management systems designed to minimize or eliminate chemical hazards by finding safer alternatives can have a significant impact on employee health. Employers have often found that switching to safer chemicals reduces costs by reducing employee absences, medical expenses, disposal costs, and sometimes material costs. Additional benefits often include greater efficiencies and/or performance, improved employee morale and the benefits associated with being an industry leader and socially responsible employer.
OSHA has developed a tool kit to help employers interested in transitioning to safer chemicals. The tool kit outlines a seven step approach to understanding the chemicals being used in the workplace and finding and evaluating opportunities for improvements. It also includes a number of links to additional useful information. The tool kit can be found here.
Removing harmful chemicals from the workplace reduces the presence of harmful chemicals on our jobsite, on our roads, rails and waterways, in our products and ultimately in our landfills—a win for everyone and the environment.