Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee
By Steven M. Siros
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:
Existing Information to Increase Efficiency
U.S. EPA will incorporate existing information regarding hazard and exposure published by other Federal agencies or the National Academics into safety assessments, with the objective of increasing the efficiency of the safety assessments and determinations where that information is available, relevant, and scientifically reliable.
The term "unreasonable risk" is either clarified to exclude consideration of costs or other non-risk factors to conform with the safety standard definition, or the word "unreasonable" is dropped.
Deadline for Implementing Restrictions and Prohibitions
Compliance deadlines for risk management rules are to be "as soon as practicable," and bans and phase-outs are to be implemented "in as short a period as is practicable."
Access to CBI Information
If U.S. EPA bans or phases out a chemical, there is a rebuttable presumption that information on that chemical should no longer be protected as confidential business information.
States allowed to co-enforce, with condition that penalties can be collected from either Federal government or State and penalties at the state level cannot be greater than under federal TSCA.
Clarification that State air and water laws are not pre-empted.
State information collection and disclosure laws are protected from pre-emption.
Any State chemical regulation is permanently protected from pre-emption that is in effect before August 1, 2015.
Designation of a Low Priority Chemical
90 days of public comment for all listing decisions.
Public can challenge a low priority decision within 60 days of listing.
Clarifications of High Priority Designation
U.S. EPA required to designate a chemical as high priority based on "significant" hazard and "significant" exposure, and may designate a chemical as high priority if it has either characteristic.
When setting the initial list of high priority chemicals, U.S. EPA must give preference to TSCA Work Plan Chemicals that are persistent and bioaccumulative.
PBTs added as a criteria for U.S. EPA to consider when making prioritization determinations.
In risk management, U.S. EPA is required to select restrictions for PBTs that reduce exposure "to the maximum extent practicable."
Industry Petitioned Chemicals
In addition to high-priority chemicals designated by U.S. EPA, manufacturers and processors can petition U.S. EPA to designate additional non-high priority chemicals for safety assessments and determinations.
The industry would pay 100% of the cost of the assessment.
These chemicals can amount to a minimum of 25% and a maximum of 30% of the cumulative total number of high priority chemicals.
U.S. EPA Work Plan Chemicals
For chemicals that U.S. EPA has already identified as high risk chemicals on the TSCA Work Plan, manufacturers can petition for those chemicals to move to a safety assessment and determination, and pay 50% of the cost. U.S. EPA has full discretion to approve or deny these industry petitions.
The revised Senate bill seems to enjoy wide bi-partisan support and has been embraced by several advocacy groups, including the Environmental Defense Fund However, Senator Boxer has already indicated that she intends to pursue additional changes to the bill, stating "if anyone thinks the fight is over, it is just beginning."
Another bill to amend TSCA is also making its way through the House of Representatives. The discussion draft, captioned the "TSCA Modernization Act of 2015" was released by Representative John Shimkus. The House's discussion draft is much narrow in scope than the bill making its way through the Senate and has yet to make its way out of the House Energy and Commerce Subcommittee on Environment and Economy.
Assuming that the House bill makes it out of committee, the expectation is that the two chambers will have to reconcile the differences in the two bills in a conference committee.
Earth Day 2015: Beach Clean Up!
By E. Lynn Grayson
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!
Earth Day 2015: Water Scarcity—Important Developments
By E. Lynn Grayson
While much progress has been made in the U.S. to address water quality since the first Earth Day in 1970, increasingly the critical issue of the day is water quantity and specifically sufficient availability of safe water for everyone. According to the World Water Council, 1 in 9 people in the world, or approximately 750 million individuals, lacks access to safe water. In January 2015, the World Economic Forum identified water scarcity as the #1 global risk based upon possible impact to society. These issues exist worldwide, including throughout the U.S.
This month, California Governor Jerry Brown announced the state's first-ever mandatory effort to cope with four years of the worst drought in California's history including a 25% use reduction on cities and towns. There are 5 things you need to know about California's water situation, according to National Geographic's ongoing research and study of water scarcity issues in the Western U.S.:
The state (and much of the West) relies heavily on snowpack each winter to resupply surface water streams and lakes. Because of a lack of winter storms and record high temperatures this past winter, snowpack in California is at an all-time low. This is the fourth consecutive year that the snowpack has been below normal. The state's hydropower supply is also threatened when snowpack is scarce.
When surface water supplies are low, hidden water supplies beneath the surface in aquifers, or groundwater, are drilled to make up the shortfall. A large aquifer under the Central Valley is being rapidly depleted to make up for shortfalls in surface water supply. A 2011 study indicated that the Central Valley Aquifer is losing an amount of water each year equivalent to the nearly 29 million acre-feet of water found in Lake Mead, the nation's largest surface reservoir on the Colorado River. (An acre-foot is one acre of ground covered one foot deep in water.) California for the first time last year passed legislation regulating groundwater use, but those restrictions will not come into effect for years.
While the 25 percent water use restrictions announced last week are intended to help reduce demand, most of the water in California is used for farming, which was largely not included in Brown's announcement on restrictions. California's farms produce and export fruits and vegetables, hay for livestock, and meat and dairy products. Surface water for farms is allocated from state and federal water projects. Water supply restrictions for farmers may be announced soon by the state, but farmers have been drilling groundwater to compensate for surface supply shortages. Last week's rules require only that agricultural operations improve their reporting of water use to the state.
California is not the only state in the West facing water supply issues. Winter snowpack in Oregon and parts of Washington was far below normal. The Colorado River Basin, which supplies water to Phoenix, Las Vegas, Los Angeles, and San Diego, has also been in a drought for more than a decade, and the river basin's aquifers have been declining, too.
When California faced a major drought in the late 1970s, fewer than 20 million people lived in the state. Now nearly 40 million live there. While Californians have drastically improved the efficiency of their water use in recent years, if rain and snow do not arrive later this year, the supply of groundwater—much of which is non-renewable—will continue to decline as it is used to make up for surface shortages.
The good news is there are two technical advancements that are currently available to mitigate water scarcity issues—one more mainstream and the other yet to be a "politically correct" option given public perceptions:
Desalination—this age old process of converting seawater to drinking water is gaining in popularity despite costs and energy demands. A $1B plant is near completion by Poseidon Resources in Carlsbad, CA and will be the largest desalination plant in the Western Hemisphere. 13-15 plants are proposed for California between Los Angeles and San Francisco. There are 300 plants in the U.S. today and over 12,500 plants worldwide, particularly in the Middle East.
Janicki Bioenergy's Omni Processor—the Bill and Melinda Gates Foundation has invested in this low cost, hyper-efficient sewage treatment plant which produces clean drinking water that meets both FDA and World Health Organization standards AND generates the very energy it requires to run. Janicki Bioenergy, based in Seattle, WA, has a prototype operating in Washington State and this year enters the developing world with a plant in Dekar, Senegal. Here's how it works:
The sewage sludge is fed into the plant by conveyor belt and dried in a tube that separates solid waste from water. The Omni Processor's intensely hot incinerator reaches 1,000 degrees Celsius, scorching enough to kill all pathogens and, perhaps more important for those living downwind, to operate without the expected offensive smell.
Converted into vapor, the water is spun in a centrifuge to remove remaining particles and then fed through two layers of filters. Next, it is cooled and condensed, at which point it is filtered one more time. The latest model can yield 86,000 liters of pure drinking water each day.
The remaining solids are then fed into an incinerator, yielding a high-powered steam that drives a generator, which in turn produces the very electricity that runs the plant (the Dakar unit produces 150 kW per day), plus excess energy that can be diverted back to the surrounding community. Another byproduct is a phosphorus-rich, disease-free ash that can be used as fertilizer. And the circle of life continues.
While some solutions exist, water remains a precious natural resource and there is no alternative. Every sector of society needs to do their part to conserve, protect and restore water resources in conjunction with governmental action to regulate quality concerns, improve infrastructure and water distribution systems, and address use limitations when appropriate.
For more information about water security, recent developments, and ongoing efforts to ensure the availability of access to safe water for everyone, visit Water.org at http://water.org or World Water Council at http://worldwatercouncil.org/.
EPA E-Manifest Implementation Update
By E. Lynn Grayson
On October 5, 2012, President Obama signed into law the Hazardous Waste Electronic Manifest Establishment Act (PDF), which authorizes the EPA to implement a national electronic manifest system. Commonly referred to as "e-Manifest," this national system is envisioned to be implemented by the EPA in partnership with industry and states.
EPA issued the e-manifest final rule, effective August 6, 2014, authorizing the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (79 Fed. Reg. 7518, February 7, 2014). The modification will provide waste handlers with the option to complete, sign, transmit, and store manifest information electronically in the electronic system. States that currently receive and collect paper manifest copies will receive copies of manifest data electronically from the system.
EPA Connect, the Agency's official blog, provided some updates this week on the status of the e-Manifest implementation process. EPA reported that an important next step is to establish the initial fee structure for users of the system. EPA is working with states and stakeholders to create this fee proposal. According to the blog, EPA anticipates the proposed rule establishing the fee model for the system to be available for public comment by May 2016.
When implemented, EPA estimates this rule will impact 160,000 entities in at least 45 industries that ship off-site, transport, or receive approximately 5.9 million tons of RCRA hazardous wastes annually. These entities currently use between 4.6 and 5.6 million EPA Uniform Hazardous Waste Manifests.
Further insights and regulatory developments are detailed at http://www.epa.gov/osw/hazard/transportation/manifest/e-man.htm.
EPA Proposes New Nanoscale Chemical Reporting Rule
By E. Lynn Grayson
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/.
World Water Day 2015
By E. Lynn Grayson
Designated by the UN General Assembly in 1993, World Water Day is celebrated each March 22nd. This year's theme for World Water Day is "Water and Sustainable Development." It is about how water links to all areas we need to consider to create a more sustainable future.
According to UN Water, a day for water and water for sustainable development includes the following considerations:
Water is health – clean hands can save your life.
Water is nature – ecocystems lie at the heart of the global water cycle.
Water is urbanization – every week one million people move into cities.
Water is industry – more water is used to manufacture a car than fill a swimming pool.
Water is energy – water and energy are inseparable friends.
Water is food – to produce two steaks, you need 15,000 liters of water.
Water is equality – every day women spend millions of hours carrying water.
FY2016 EPA Budget Proposal
By E. Lynn Grayson
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.
CPSC Seeks Funding for Nanotechnology Center
By E. Lynn Grayson
The Consumer Product Safety Commission (CPSC) is seeking $7M to establish a nanotechnology center and proposes to create a five year interagency agreement with the National Science Foundation and a learning center or university to house the center. The proposed "Center for Consumer Product Applications and Safety Implications of Nanotechnology" would be a consortium of scientists tasked with researching methods to quantify and characterize the presence, release and mechanisms of consumer exposure to nanomaterials from consumer products.
Nanotechnology is the manipulation of matter on an atomic, molecular and supramolecular scale. While there is some controversy over the correct definition, nanomaterials generally are characterized by their tiny size, measured in nanometers. A nanometer is one millionth of a millimeter—approximately 100,000 times smaller than the diameter of a human hair. While nano-sized particles exist in nature, there is growing concern over the increased use of and impacts from engineered nanomaterials present in many commercial, industrial and consumer products—most nanoscale materials are too small to be seen with the naked eye or even with conventional lab microscopes, according to the National Institute of Environmental Health Sciences.
According to the CPSC, the Woodrow Wilson International Center for Scholars issued a 2008 report evaluating the CPSC's role in nanotechnology. The report concluded that nanotechnology is used in all of the categories that CPSC regulates including toys and baby products, sports and fitness equipment, home improvement and garden equipment, clothing, appliances, computers and other electronic devices. The Wilson Center has established a Consumer Products Inventory identifying over 1,800 consumer products that contain nanomaterials.
Even though the CPSC is attempting to take a more proactive approach to nanotechnology, it is believed by many that the CPSC is behind the curve in analyzing the impacts of nanomaterials in consumer goods, particularly those associated with children's products. All agree the launch of the new nanotechnology center would be an important step for the CPSC assuming the necessary funding can be secured.
The CPSC has been active in developing agreements with other agencies to address issues related to nanotechnology and is a member of the National Nanotechnology Initiative—a group of 25 government agencies that have committed resources for the completion of nanotechnology research to assess environmental, health and safety concerns and related data gaps.
California Seeks to Amend Proposition 65
By 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.
Congress Gives United States Free Pass on Contaminated Properties
By Steven M. Siros
On December 12, 2014, the Senate approved H.R. 3979, the National Defense Authorization Act for FY 2015. Buried in this bill are provisions that provide CERCLA immunity to the United States for three parcels of property that are being transferred to municipalities in Idaho and Nevada. The parcels at issues are being transferred from the United States Department of the Interior. Although the United States Environmental Protection Agency ("U.S. EPA") has generally opposed legislation that would exempt the United States from CERCLA liability, there is no indication that U.S EPA formally opposed the liability exemptions contained in H.R. 3979. The President signed the bill into law on December 19, 2014.
It is unclear whether the exemptions contained in H.R. 3979 represent an one-off event or are a precursor to future Congressional efforts to exempt the United States from CERCLA liability. Please click here to see a copy of H.R. 3979.
New EPA Rule Regulates Coal Ash As Non-Hazardous
By E. Lynn Grayson
The U.S. Environmental Protection Agency (EPA) recently announced the first national regulations to provide for the safe disposal of coal combustion residuals (coal ash) from coal-fired power plants which will be regulated under the nonhazardous waste provisions of RCRA. In developing the new rule, the EPA evaluated more than 450,000 comments on the proposed rule, testimony form eight public hearings, and information gathered from three notices soliciting comment on new data and analyses.
According to EPA, improperly constructed or managed coal ash disposal units have resulted in the catastrophic failure of surface impoundments, damages to surface water, groundwater and the air. The first federal requirements for impoundments and landfills will address the following risks:
The closure of surface impoundments and landfills that fail to meet engineering and structural standards and will no longer receive coal ash;
Reducing the risk of catastrophic failure by requiring regular inspections of the structural safety of surface impoundments;
Restrictions on the location of new surface impoundments and landfills so that they cannot be built in sensitive areas such as wetlands and earthquake zones;
Protecting groundwater by requiring monitoring, immediate cleanup of contamination, and closure of unlined surface impoundments that are polluting groundwater;
Protecting communities from fugitive dust controls to reduce windblown coal ash dust; and
Requiring liner barriers for new units and proper closure of surface impoundments and landfills that will no longer receive CCRs.
This final rule also supports the responsible recycling of coal ash by distinguishing safe, beneficial use from disposal. In 2012, almost 40 percent of all coal ash produced was recycled (beneficially used), rather than disposed. Beneficial use of coal ash can produce positive environmental, economic and performance benefits such as reduced use of virgin resources, lower greenhouse gas emissions, reduced cost of coal ash disposal, and improved strength and durability of materials.
Coal ash, the second largest industrial waste stream, rose to national prominence following two high-profile spills: the December 2008 Kingston Fossil Plant spill in Tennessee and the February 2014 spill of 140,000 tons of coal ash and wastewater into North Carolina's Dan River.
Important Timeline of Coal Ash Assessment by EPA:
Dec. 22, 2008—Dike ruptures at the Kingston Fossil Plant in Harriman, Tenn., releasing 5.4 million cubic yards of coal ash slurry into surrounding area.
Jan. 14, 2009—At her Senate confirmation hearing, incoming EPA Administrator Lisa Jackson says the agency will review how it regulates coal ash.
June 21, 2010—The EPA proposes (75 Fed. Reg. 35,128) two possible ways for regulating coal ash—under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.
April 5, 2012—Frustrated with the slow pace of the rulemaking, environmental advocates sue the EPA over failure to complete a mandatory review of RCRA regulations every three years. They seek a deadline for final coal ash standards.
Jan. 31, 2014—Environmental advocates, coal ash recyclers, utilities and the EPA reach an agreement that requires the EPA to complete its coal ash regulations by Dec. 19.
Feb. 2, 2014—140,000 tons of coal ash and wastewater spill from a Duke Energy Corp. into North Carolina's Dan River.
Dec. 19, 2014—The EPA issues a final rule on the management and disposal of coal ash.
This new rule appears to be a good compromise both for industry and environmental groups. While the non-hazardous designation supports industry's position, the overall scope and regulatory focus on coal ash disposal and storage addresses concerns expressed repeatedly by citizens' groups.
Additional information about the new rule including a summary and history is available at http://www2.epa.gov/coalash/coal-ash-rule.
Illinois SB 2221 To Eliminate the State’s Statute of Repose for Construction Defects Arising Out of Pollution, Hazardous Substances
By Alexander J. Bandza
Under 735 ILCS 5/13-214, Illinois provides for a ten-year statute of repose for any actions in “tort, contract or otherwise” on defects in construction of improvements to real property. Specifically, subsection (b) provides that:
No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.
State Rep. Nekritz has introduced SB 2221, which would strip the protections afforded by section 5/13-214 for actions “resulting from the discharge into the environment of any pollutant.” Specifically, the bill adds a new subsection (f), which provides that:
(f) Subsection (b) does not apply to an action that is based on personal injury, disability, disease, or death resulting from the discharge into the environment of any pollutant, including any waste, hazardous substance, irritant, or contaminant (including, but not limited to, smoke, vapor, soot, fumes, acids, alkalis, asbestos, toxic or corrosive chemicals, radioactive waste, or mine tailings).
While speculating on the Legislature’s intent is always risky business, this proposed bill may have been conceived in the wake of the U.S. Supreme Court’s decision in CTS Corporation v. Waldburger, 134 S. Ct. 2175 (2014), which held that CERCLA § 9658 does not preempt states’ statutes of repose. As Illinois courts have long recognized, the construction statute of repose was enacted for the express purpose of insulating all participants in the construction process from the onerous task of defending against stale claims. SB 2221’s broad and unqualified language could have the drastic effect of stripping the protections afforded by section 5/13-214 whenever any “discharge into the environment of any pollutant” was involved.
SB 2221 is available here.
Illinois Approves Fracking Rules
By Genevieve J. Essig
Following up on a previous post, in which we noted that, nearly a year after filing its first draft, the Illinois Department of Natural Resources (IDNR) had filed revised rules implementing the Hydraulic Fracturing Regulatory Act (225 ILCS 732) with the Illinois’ Joint Committee on Administrative Rules (JCAR), we report that JCAR has approved these proposed regulations. In September JCAR had extended the Second Notice period for the rulemaking for an additional 45 days, but it finally approved the rules yesterday. The final version of rules may now be filed with the Secretary of State for publication in the Illinois Register.
DOD Finalizes Amendments to DFARS Regarding the Storage, Treatment, and Disposal of Non-DOD Toxic and Hazardous Materials on DOD Sites
By Alexander J. Bandza
On September 30, 2014, the Department of Defense (DOD) published a final rule that amends Defense Federal Acquisition Regulation Supplement (DFARS) subpart 223.71 to better align the DFARS with the current provisions set forth in 10 U.S.C. 2692 concerning storage, treatment, and disposal of nondefense toxic and hazardous materials. This rule affects contractors and subcontractors performing contracts that involve the storage, treatment, or disposal of toxic or hazardous materials not owned by DOD on a DOD installation. The proposed rule was issued earlier this year and received no public comments.
Some of the larger changes are as follows:
- Under section 223.7102 (“Policy”), subsection (b) was added, which states that when storage of toxic or hazardous materials is authorized based on imminent danger, the storage provided is required to be temporary and must cease once the imminent danger no longer exists.
- Several new exemptions under section 223.7104 (“Exceptions”) were added, including:
- (a)(1), which added an exception to the prohibition for the storage, treatment, or disposal of materials used in connection with an activity of DOD or in connection with a service performed on a DOD installation for the benefit of DOD;
- (a)(9), which expanded the exception for the storage of toxic or hazardous materials not owned by DOD but is required or generated in connection with the authorized and compatible use of a facility of DOD, including the use of such a facility for testing material or training personnel; and
- (a)(11), which added an exception for the storage of material not owned by DOD when the Secretary of the military department concerned determines the material is required or generated in connection with the use of a space launch facility on a DOD installation or other land controlled by the United States.
- Section 223.7105 (“Reimbursement”) was added, which provides that the Secretary of Defense may assess a charge for any storage or disposal provided under the subpart.
- Under section 223.7106 (“Contract clause”), subsection (a) was revised to broaden the clause application to include solicitations and contracts that may require access to a DOD installation.
The final rule can be found here.
DOD Report Confirms Climate Change A Threat To National Security
By E. Lynn Grayson
This week the Pentagon released Department of Defense 2014 Climate Change Adaptation Roadmap confirming that climate change poses an immediate threat to national security. The Department of Defense (DOD) views climate change as a "threat multiplier" because it has the potential to exacerbate many of today's existing challenges from infectious disease to terrorism. Rising global temperatures, changing precipitation patterns, climbing sea levels and more extreme weather events will intensify the challenges of global instability, hunger, poverty and conflict.
According to the report, the Strategic Sustainability Performance Plan articulates the DOD's sustainability vision to maintain the ability to operate into the future without decline in the mission or the supporting natural and man-made systems. DOD has established three broad adaptation goals:
1. Goal 1: Identify and assess the effects of climate change on DOD
2. Goal 2: Integrate climate change considerations across DOD and manage associated risks
3. Goal 3: Collaborate with internal and external stakeholders on climate change challenges
For DOD, these goals are supported by four lines of effort: plans and operations; training and testing; built and natural infrastructure; and, acquisition and supply chain.
What is important to note with DOD's issuance of this new report is the shifting view of climate change and how it might impact national security. Traditionally, DOD's focus was on ensuring that U.S. military installations were adapting to climate change impacts such as coastal naval bases and concerns over rising sea levels. This new report makes clear that DOD is considering climate change in a more strategic manner in terms of how such impacts may cause greater problems in regions where conflicts already exist including for example political unrest related to drought or food shortages.
Many commentators believe that the increased priority by DOD on climate change may signal the Administration's plans for more cooperation and support of international climate change negotiations on a proposed new United Nations climate change agreement to be addressed next year in Paris. Others have been critical of the Administration's interest in climate change issues when they believe there are many more important challenges that DOD should focus on like how to manage ISIS.