Earlier this year New York Attorney General Eric Schneiderman spearheaded a coalition of attorneys general investigating whether ExxonMobil misled investors and the public about its knowledge of climate change. As previously reported in this blog (see ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes and Climate Change Allegations Against Big Oil Continue), ExxonMobil has sued the Attorneys General for the U.S. Virgin Islands and Massachusetts pushing back on allegations and related subpoenas dating back at least 40 years into the corporate history and internal communications of the company related to climate change considerations. Two recent developments ensure the conflicts over these government led investigations against ExxonMobil are far from over:
- This week the Energy & Environment Legal Institute and the Free Market Environmental Clinic filed litigation in the Supreme Court of New York against New York Attorney General Eric Schneiderman over his refusal to produce climate change-related communications demanded by these groups in requests filed under the New York Freedom of Information Law (FOIL). The free-market litigation nonprofits requested all correspondence between AG Schneiderman and eight individuals that contained certain keywords including “energy,” “fossil,” “climate,” “RICO” and “fraud.” The individuals targeted were associated with environmental organizations as well as lawyers that had litigated against ExxonMobil in the past. The Attorney General’s Office denied the FOIL requests claiming the communications sought were exempt from disclosure because they were protected as attorney client, attorney work product or inter- or intra-agency memoranda. The nonprofits assert that the majority of the information sought is communications between AG Schneiderman and outside parties that would not fall under any legal protections for withholding information.
- Last month, led by Texas Representative Lamar Smith, the U.S. House Committee on Science, Space and Technology issued ten (10) subpoenas to the Attorneys General of New York and Massachusetts as well as a number of nongovernmental environmental advocacy groups seeking climate change-related communications among the attorneys general and the environmental groups that support them associated, at least in part, with the ongoing investigations against ExxonMobil. The attorneys general have refused to produce any documents saying the request encroaches onto their states’ sovereign power to pursue their fraud investigations. Both Attorneys General Schneiderman and Healey have pushed back on the issuance of these subpoenas noting they are “…are an unprecedented effort to target ongoing state law enforcement investigations or potential prosecutions…” and if allowed would “…eviscerate AG Healey’s ability to conduct an ordinary and lawful investigation.”
Many have expressed skepticism about the legal reasoning and logic of the fraud, securities and RICO investigations launched by the “Green 20” state attorneys general. Critics charge the state attorneys general are using governmental power to further political objectives and in the process violating ExxonMobil’s constitutional rights of free speech and freedom from unreasonable searches. It appears there is nothing “ordinary and lawful” in the context of this unusual investigation aimed at achieving climate change parity where more appropriate regulatory and legislative efforts have failed.
On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (a/k/a the TSCA Reform Act) into law. The TSCA Reform Act received bipartisan support in both the House and Senate, passing both bodies by wide margins. The TSCA Reform Act is a major overhaul of the 40-year-old chemical law, which had fallen short of its goal to protect people and the environment from dangerous chemicals.
In an article posted on EPA’s blog, Administrator Gina McCarthy praised the TSCA Reform Act, stating:
The updated law gives EPA the authorities we need to protect American families from the health effects of dangerous chemicals. I welcome this bipartisan bill as a major step forward to protect Americans’ health. And at EPA, we’re excited to get to work putting it into action.
Key provisions of the TSCA Reform Act include:
Late on June 7, 2016, the Senate voted in favor of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (HR 2576) (a/k/a the TSCA Reform Act). The TSCA Reform Act regulates the manufacture, transportation, sale and use of thousands of chemicals, and provides a much needed update to the 40 year old Toxic Substances Control Act (TSCA). The TSCA Reform Act had been passed by the House in May, with overwhelming support. It was held up recently in the Senate by an objection from Senator Rand Paul (R-Ky.), who argued that he needed more time to review the complex new law. But, Senator Paul dropped his objection on June 7th, and a vote was quickly held.
The TSCA Reform Act is widely seen as an improvement over the outdated TSCA. The American Chemical Counsel praised the TSCA Reform Act as “truly historic”. Others, however, were disappointed that the TSCA Reform Act preempted state laws on chemical safety, instead of setting a floor and letting state’s set more stringent standards.
President Obama is expected to sign the TSCA Reform Act into law very soon, as the White House had endorsed the Act after it passed the House of Representatives in May.
Attempts to reform the outdated Toxic Substances Control Act (“TSCA”) have been working their way through Congress for years with no success. But as of this week, legislators in Washington have announced that they are closer than ever before to finalizing and approving a TSCA reform bill.
Last year, the House and Senate each passed their own versions of a TSCA reform bill. The two versions contained significant differences, including on how they managed preemption of State chemical laws. Then, on May 17, 2016, House and Senate leaders issued the following statement on the current status of TSCA reform:
House and Senate negotiators are finalizing a TSCA reform bill that represents an improvement over both the House and Senate bills in key respects. Current federal law only provides very limited protection. We are hopeful that Congress will be taking action soon on reforming this important environmental law.
While some House Democrats, including Rep. Frank Pallone Jr. (D-NJ), Ranking Member of the House Committee on Energy and Commerce, believe the TSCA reform bill does not do enough, many high-profile Democrats and Republicans have signed on to the compromise bill, including U.S. Senate Environment and Public Works Committee Ranking Member Barbara Boxer (D-CA), Senator Cory Booker (D-NJ), House Energy and Commerce Committee Chairman Fred Upton (R-MI), and U.S. Senate Environment and Public Works Committee Chairman Jim Inhofe (R-OK).
The Congressional leaders are confident that the compromise bill will be up for a vote next week and could potentially be sent to the President for signing before Memorial Day. Be sure to follow the Corporate Environmental Lawyer Blog for analysis of any developments with the TSCA reform bill.
EPA recently took action under the Toxic Substances and Control Act (TSCA) to ensure no TCE containing consumer products enter the marketplace before the Agency has the opportunity to evaluate the intended use and take appropriate action. The new rule issued April 6, 2016, known as a Significant New Use Rule (SNUR), requires any company intending to make certain TCE containing consumer products provide EPA 90-day notice before making the product.
The final rule applies to TCE manufactured (including import) or processed for use in any consumer product, except for use in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. A consumer product is defined at 40 CFR 721.3 as “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”
EPA’s June 2014 Work Plan Chemical Risk Assessment for TCE identified health risks associated with several TCE uses, including the arts and craft spray fixative use, aerosol and vapor degreasing, and as a spotting agent in dry cleaning facilities. In 2015, EPA worked with the only U.S. manufacturer of the TCE spray fixative product, PLZ Aeroscience Corporation of Addison, Illinois, resulting in an agreement to stop production of the TCE containing product and to reformulate the product with an alternate chemical.
It is important to note that this regulatory action may affect certain entities with pre-existing import certifications and export notifications required under TSCA.
The rule becomes effective 60 days from its publication in the Federal Register.
As required by the Hazardous Waste Electronic Establishment Act (Act), EPA’s efforts are ongoing to develop an e-manifest system. EPA issued its final rule in February 2014 (79 Fed. Reg. 7518, February 7, 2014) seeking to implement the Act’s requirement to create a national electronic manifest system and impose user fees as a means to fund its development and operation. Most recently, EPA has developed an e-manifest listserv to manage communications with the regulated community.
According to EPA, the listserv will: 1) provide stakeholders with program announcements and updates; and 2) facilitate e-manifest conversations among users and other stakeholders. There will be significant progress on the e-manifest program throughout 2016-2017, so participation in the listserv will be a good way to stay informed.
Interested parties may subscribe to EPA’s listserv at https://www3.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
EPA conducted a webinar on developments with the e-manifest system in December 2015, and the presentation provides a good overview of the program and related schedule.
Along with the hazardous waste management changes for generators recently proposed by EPA, the e-manifest system will be another significant new development for thousands of companies regulated by RCRA and subject to hazardous waste manifest requirements.
EPA recently announced seven National Enforcement Initiatives (NEIs) for FY 2017-2019. Every three years, EPA identifies NEIs to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference. According to EPA, the NEIs are selected with input from the public and other stakeholders across EPA’s state, local and tribal partners.
Starting October 1, 2016 and continuing for three fiscal years, the following are the NEIs:
- Reducing air pollution from the largest sources
- Cutting hazardous air pollutants*
- Ensuring energy extraction activities comply with environmental laws
- Reducing risks of accidental releases at industrial and chemical facilities*
- Keeping raw sewage and contaminated stormwater out of our nation’s waters
- Preventing animal waste from contaminating surface and groundwater
- Keeping industrial pollutants out of the nation’s waters*
*New for FY2017-2019 as of February 2016.
It is interesting to note that the newly identified NEIs appear to correspond to challenges that EPA recently confronted, including the Gold King Mine wastewater spill, the spill prevention litigation and settlement in New York, and the Flint, MI lead contaminated water matter, where recent government reports concluded EPA failed in its regulatory obligations to this community.
For more information, see EPA’s news release announcing these NEIs.
EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
- Issues relating to the Corps’ jurisdiction under the Clean Water Act;
- Fallout under the Safe Drinking Water Act after Flint;
- U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
- Status of TSCA reform efforts;
- Litigation relating to GMOs under FIFRA;
- RCRA waste regulation amendments;
- OSHA penalty updates;
- U.S. EPA challenges;
- Water scarcity and sustainability; and
- Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees. Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations. In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban. In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed. U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions. In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016.
These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA). Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology
Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.
The full article is available here.
Partners E. Lynn Grayson and Steven M. Siros have published a new article titled “Nanotechnology: U.S. Regulatory Framework and Legal Risk Management” in the Westlaw Journal of Toxic Torts addressing some of the legal and technical challenges associated with nanotechnology. While nanotechnology offers the opportunity for tremendous scientific advances in industrial, commercial, and consumer products, and has been referred to by some as the second coming of the Industrial Revolution, there has been growing concern and associated regulatory scrutiny with respect to how nanotechnology interacts with human health and the environment. The article provides an overview of how nanotechnology is defined, key regulatory initiatives, public and private partnerships assessing potential concerns, and risk management considerations.
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.
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.
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.
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.
At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee. Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.
Several of these key changes include:
On Friday, April 17th, Jenner & Block partnered with ComEd and Exelon to clean up the 12th Street beach at Northerly Island, in cooperation with the Alliance for the Great Lakes. Our group picked up over 85 pounds of broken glass, plastic beverage containers, food wrappers, cigarettes, and other miscellaneous trash and debris.
The Adopt-a-Beach program is the premier volunteer initiative for the Alliance for the Great Lakes. Teams remove litter and enter results into the Adopt-a-Beach online system to share with local beach authorities, educate the public, and improve the beaches and the health of the Great Lakes.
This picture shows our team after clean up efforts at 12th Street beach:
What will you do to celebrate Earth Day 2015? How about participating in the Adopt-a-Beach program?
To learn more about beach clean up opportunities or to schedule an event, visit http://www.greatlakes.org/.
A special thanks to our own Gay Sigel for organizing the Jenner & Block team. Thanks, Gay!
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/.
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.
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.
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.
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.