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Corporate Environmental Lawyer Blog

April 11, 2019 Jenner & Block's Insurance Coverage for Environmental Claims Webinar

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By Steven M. Siros

On Tuesday, April 16th, from 12:00 - 1:00 pm CST, Jenner & Block is hosting an interactive webinar that will discuss how environmental claims can arise in many different contexts and how high costs can be avoided. One way to manage the cost of environmental claims associated with historical operations is to pursue coverage under historical (and often pre-pollution exclusion) occurrence-based commercial general liability insurance policies. Our panelists will discuss the nuances and pitfalls that can arise in environmental insurance litigation and creative strategies to maximize recovery. In addition, companies facing environmental risks in their current operations or transactions can also manage environmental risk through a variety of current insurance products. Our panelists will identify current options available to manage environmental risks going forward and provide insight into the costs and benefits of those insurance products.

Jenner & Block Partners Allison Torrence and Brian Scarbrough will be panelists, along with Richard Reich, Managing Director at Aon Risk Services Central, Inc. Jenner & Block Associate Alex Bandza will moderate the webinar.

Please click here to RSVP for this webinar.

 

CATEGORIES: Climate Change, Consumer Law and Environment, Real Estate and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros

April 3, 2019 New Jersey Puts PFAS Manufacturers in the Cross-Hairs

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By Steven M. Siros

Dep_smallNew Jersey continues to take an aggressive stance with respect to per- and polyfluoralkyl (PFAS) contamination. On March 25, 2019, the New Jersey Department of Environmental Protection (NJDEP) issued a “Statewide PFAS Directive Information Request and Notice to Insurers” to five major chemical companies notifying those companies that NJDEP believed them to be responsible for PFAS impacts to the air and waters of New Jersey. In addition to seeking recovery from these companies for past costs incurred by NJDEP to investigate and remediate PFAS impacts, the Directive also seeks to compel these companies to assume responsibility for ongoing remediation of drinking water systems throughout the state. The Directive further seeks information from these companies regarding historical PFAS manufacturing practices as well as information regarding these companies’ ongoing efforts to manufacture PFAS replacement chemicals.

Although environmental organizations have been quick to praise the NJDEP Directive, in reality, the state agency may have overstepped its authority. NJDEP has been quick to point out that the Directive is not a final agency action, formal enforcement order, or other final legal determination and therefore cannot be appealed or contested. Notwithstanding NJDEP’s efforts to insulate its Directive from immediate legal challenge, it will almost certainly draw strong industry challenges. For example, NJDEP’s efforts to obtain information regarding PFAS replacement chemicals may run afoul of the Toxic Substances Control Act and its efforts to compel reimbursement of past claims and/or the takeover of ongoing remedial actions will certainly be the subject of court challenges.

Continuing its full court PFAS press, on April 1, 2019, New Jersey unveiled a proposed drinking water standard of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS. These proposed drinking water levels are significantly lower than the current U.S. EPA health advisory level of 70 ppt for combined PFOS/PFOA.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

April 2, 2019 Trends in Climate Change Litigation: Part 1

Matthew G. Lawson

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

December 17, 2018 New OSHA Enforcement Policy Under General Duty Clause for Worksite Exposure to Air Contaminants

 By Gabrielle Sigel

OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.

The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “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.”  29 U.S.C. § 654(a)(1).  By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f).  There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical.  An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.

OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and,
  4. There was a feasible and useful method to correct the hazard.

The Enforcement Policy provides that exceeding an OEL is not sufficient evidence on its own to support a GDC citation; all four of the above GDC proof elements must be met. However, even if all four elements cannot be proven, OSHA still can issue a Hazard Alert Letter (“HAL”) if exposures are above an OEL.  The Enforcement Policy includes a sample HAL. 

The Enforcement Policy also provides examples of the evidence that OSHA needs to prove a GDC violation for airborne exposures above an OEL. With respect to the first element—that employees were exposed—OSHA can rely on air sampling and other workplace-based evidence, including witness statements.  However, in contrast to many OSHA requirements when there is a regulatory PEL, in GDC cases, OSHA will consider whether the exposed employee is wearing respiratory protection.  Unlike the 2003 version of the policy, the 2018 Enforcement Policy specifically states that “if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the general duty clause would be low.”  However, OSHA does not preclude a GDC citation if respirators are used; the Enforcement Policy provides the exception for a respirator program only if that program has “no deficiencies.”

With respect to element #2—hazard recognition—the Enforcement Policy states that this element is met if: (a) there is direct evidence of employer knowledge; or (b) if the employer should have known of the hazard. Direct evidence can include prior receipt of a HAL or information regarding the hazard in a Safety Data Sheet prepared by a chemical’s manufacturer.  Indirect evidence can include an OEL issued by an industry association, professional organization, or a non-OSHA government agency.  With respect to GDC proof elements #3 and #4, OSHA states it likely will be required to present expert testimony to prove its case.  However, that expert can rely on published studies and need not necessarily conduct a new study of the dangers of the hazard at that particular worksite. 

The Enforcement Policy does not expressly address whether OSHA will pursue GDC violations for chemicals for which OSHA has issued a PEL. As written, the new Policy does not prohibit a GDC citation in those circumstances.  The Enforcement Policy states that it applies when an air contaminant “is not covered” by an OSHA PEL, and does not include language restricting the policy to “those cases where an OSHA PEL has not been issued,” as the old version of the policy had stated.  (Emphases added.)  In addition, the new Policy refers Regional Administrators to the Field Operations Manual (“FOM”) for further guidance in preparing a GDC citation.  The current FOM expressly states that a GDC citation may be issued when there are exposures above an OEL but below an OSHA PEL.  FOM (8/02/2016) § III.D.2, Example 4‑25.

Therefore, under the Enforcement Policy, OSHA may assert that even employers with worksite air contaminant exposures below an OSHA PEL, as well as those using chemicals that do not have an issued OSHA PEL, are subject to a GDC citation, if there are unprotected worksite exposures above a recognized OEL.

CATEGORIES: Air, OSHA, Toxic Tort

PEOPLE: Gabrielle Sigel

May 18, 2018 CRA Survives Constitutional Challenge—Are More Rules and Guidance at Risk of Disapproval?

Steven M. Siros Photo By Steven M. Siros 

A recent decision by the U.S. District Court for the District of Alaska rejected efforts by the Center for Biological Diversity (the “Center”) to challenge the constitutionality of the Congressional Review Act (CRA).  The CRA, which was originally enacted in 1996, allows for Congressional disapproval of rules promulgated by administrative agencies under limited circumstances.  Historically, the CRA had been used sporadically, but the current Congress has relied on the CRA on at least 16 occasions to roll back Obama administration regulations, and more CRA resolutions may be on the horizon. 

In Center for Biological Diversity v. Zinke, the Center challenged the use of the CRA to invalidate a Department of Interior (DOI) rule which limited certain hunting and fishing practices on Alaskan National Wildlife Refuges.  More specifically, the Center argued that the CRA unconstitutionally allowed Congress to alter DOI’s authority without using bicameralism and presentment to amend the underlying statutes that gave DOI its authority over the National Wildlife Refuges in Alaska.  The Center also argued that the CRA’s prohibition on the issuance of a future rule in “substantially the same form” violates the separation of powers doctrine. 

The district court dismissed the Center’s lawsuit, finding that “Public Law 115-20 was passed by both the House and the Senate and submitted to the President for approval as required by the CRA—which was also passed by both houses of Congress and signed into law by the President.  Thus, the requirements of bicameralism and presentment are met and [the Center’s] separation of powers concerns fail to state a plausible claim for relief.”  The court further noted that “[a]ny injury caused by DOI’s inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.”  The court also noted that even if the Center could establish an “injury in fact,” the Center had not adequately alleged how invalidating the CRA would redress the Center’s alleged injuries. 

Although the CRA remains in full force and effect, one might wonder whether it will retreat back into the shadows at least until the next administration.  The conventional view had been that Congress only has 60 days after a rule takes effect to pass a CRA resolution disapproving it.  However, lawmakers in Congress are advancing a more novel interpretation of the CRA to review (and potentially disapprove) older rules (and guidance).  If a rule or guidance was not  officially “submitted” to Congress for review (and many apparently have not officially been submitted), then the current administration could now submit them for review which would restart the 60-day clock.  For example, in April, the Senate voted to disapprove a 2013 Consumer Financial Protection Bureau guidance on auto loan financing.  The House has not yet taken action on the resolution.  If, however, the guidance were to be disapproved under the CRA, then the effect of that disapproval is that the agency will be unable to enact a “substantially similar” rule or guidance.  That is really the true power of the CRA, and word is that members of Congress are reviewing older rules and guidance that could be the target of a CRA resolution.  Whether the CRA remains a powerful tool this far into the Trump administration remains to be seen, but one can expect that the Center’s constitutional challenge to the CRA is unlikely to be the last. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Steven M. Siros

May 18, 2018 CRA Survives Constitutional Challenge—Are More Rules and Guidance at Risk of Disapproval?

Siros By Steven M. Siros 

A recent decision by the U.S. District Court for the District of Alaska rejected efforts by the Center for Biological Diversity (the “Center”) to challenge the constitutionality of the Congressional Review Act (CRA).  The CRA, which was originally enacted in 1996, allows for Congressional disapproval of rules promulgated by administrative agencies under limited circumstances.  Historically, the CRA had been used sporadically, but the current Congress has relied on the CRA on at least 16 occasions to roll back Obama administration regulations, and more CRA resolutions may be on the horizon. 

In Center for Biological Diversity v. Zinke, the Center challenged the use of the CRA to invalidate a Department of Interior (DOI) rule which limited certain hunting and fishing practices on Alaskan National Wildlife Refuges.  More specifically, the Center argued that the CRA unconstitutionally allowed Congress to alter DOI’s authority without using bicameralism and presentment to amend the underlying statutes that gave DOI its authority over the National Wildlife Refuges in Alaska.  The Center also argued that the CRA’s prohibition on the issuance of a future rule in “substantially the same form” violates the separation of powers doctrine. 

The district court dismissed the Center’s lawsuit, finding that “Public Law 115-20 was passed by both the House and the Senate and submitted to the President for approval as required by the CRA—which was also passed by both houses of Congress and signed into law by the President.  Thus, the requirements of bicameralism and presentment are met and [the Center’s] separation of powers concerns fail to state a plausible claim for relief.”  The court further noted that “[a]ny injury caused by DOI’s inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.”  The court also noted that even if the Center could establish an “injury in fact,” the Center had not adequately alleged how invalidating the CRA would redress the Center’s alleged injuries. 

Although the CRA remains in full force and effect, one might wonder whether it will retreat back into the shadows at least until the next administration.  The conventional view had been that Congress only has 60 days after a rule takes effect to pass a CRA resolution disapproving it.  However, lawmakers in Congress are advancing a more novel interpretation of the CRA to review (and potentially disapprove) older rules (and guidance).  If a rule or guidance was not  officially “submitted” to Congress for review (and many apparently have not officially been submitted), then the current administration could now submit them for review which would restart the 60-day clock.  For example, in April, the Senate voted to disapprove a 2013 Consumer Financial Protection Bureau guidance on auto loan financing.  The House has not yet taken action on the resolution.  If, however, the guidance were to be disapproved under the CRA, then the effect of that disapproval is that the agency will be unable to enact a “substantially similar” rule or guidance.  That is really the true power of the CRA, and word is that members of Congress are reviewing older rules and guidance that could be the target of a CRA resolution.  Whether the CRA remains a powerful tool this far into the Trump administration remains to be seen, but one can expect that the Center’s constitutional challenge to the CRA is unlikely to be the last. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Steven M. Siros

December 28, 2017 2017: The Corporate Environmental Lawyer Year in Review

Siros Torrence_jpg 

By Steven M. Siros and Allison A. Torrence

As 2017 draws to an end, we wanted to thank everyone that follows our Corporate Environmental Lawyer blog. 2017 has been an interesting year and we have enjoyed providing information on critical environmental, health and safety issues for the regulated community. As part of the year in review, we thought it might be interesting to highlight the most popular posts from each of the four quarters in 2017.

Q1 2017:

  1. Trump Administration: 2017 Insights
  2. New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t
  3. World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series
  4. Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
  5. Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water

Q2 2017:

  1. Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
  2. Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards
  3. Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants
  4. News of OECA’s Demise May be Greatly Overstated
  5. EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule

Q3 2017:

  1. Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline
  2. Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer
  3. Who is in Charge of Protecting the Environment—The Role of U.S. EPA and State Environmental Agencies During a Hurricane
  4. Shell Latest Target of CWA Climate Change Citizen Suit
  5. New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?

Q4 2017:

  1. Cities Risk Ratings Downgrade for Failure to Address Climate Change Risks
  2. Dumpster Diving Results in $9.5M Penalty Recovery for California
  3. Following Keystone Pipeline Oil Spill, Judge Orders Parties to Prepare Oil Spill Response Plan for Dakota Access Pipeline
  4. EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory
  5. Imagine a Day Without Water

We look forward to continuing to blog on breaking environmental, health and safety issues and we are sure that we will have plenty to blog about in 2018. Warmest wishes for a wonderful holiday season.

Steve Siros and Allison Torrence

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros

November 9, 2017 Jenner & Block Webinar – What’s Over the Horizon: Emerging Contaminants of Concern

JB and ExponentTorrence_jpgBy Allison A. Torrence

On Tuesday, November 14, 2017, from 12:30 - 1:30 PM CST. Jenner & Block Partner Steve Siros and Jaana Pietari, PH.D., P.E., Exponent, will present a free webinar titled “What’s Over the Horizon: Emerging Contaminants of Concern.”

Contaminants of Emerging Concern (CECs) fall into many classes, and encompass an evolving number of chemicals from industrial solvents to pharmaceuticals to endocrine disruptors. CECs may be truly “emerging” chemicals that were previously unregulated, or they may be currently regulated chemicals that have been found to be more toxic or persistent and are subject to new or proposed regulations.

In the absence of federal statutes, varying state standards and advisories create a regulatory minefield for the regulated community. Two examples of CECs receiving increased regulatory and public scrutiny are 1,4-dioxane and poly- and perfluoroalkyl substances (PFAS). Although its presence has been known for nearly a decade, 1,4-dioxane has recently become a more frequent regulatory driver in groundwater cleanups and resulted in reopening previously closed sites. PFAS, on the other hand, are only recently emerging as CECs as new information about the toxicology, health effects, persistence, and systemic presence of this large group of widely used synthetic chemicals is discovered.

The purpose of this webinar is to describe current legal, scientific, and technical issues concerning CECs with a focus on groundwater remediation.

This webinar will:

  • Examine legal issues including potential affected parties, the ability of regulators to reopen previously closed sites, and the potential liabilities that can result in the absence of clear regulatory standards.
  • Describe scientific developments regarding human health and environmental effects and advances in detection and monitoring of select CECs.
  • Discuss key technical aspects regarding challenges in treatment and source identification.
  • Provide case studies highlighting the critical legal, scientific, and technical issues in addition to recommendations on risk mitigation opportunities.

To register for the free webinar, click here.

CATEGORIES: Consumer Law and Environment, Toxic Tort, TSCA

PEOPLE: Allison A. Torrence, Steven M. Siros

October 30, 2017 EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory

 By Andi Kenney  EPA logo 2017

On October 26, 2017, EPA published a proposed rule requiring manufacturers and importers of mercury and mercury-added products or any other person who intentionally uses mercury in a manufacturing process to provide EPA with both quantitative and qualitative information about the elemental mercury and mercury compounds involved in their activities. 82 FR 49564 (October 26, 2017). 

Under Section 8(b)(10)(B) of the Toxic Substances Control Act (TSCA), EPA must publish an inventory of mercury supply, use, and trade in the United States” in 2017 and every year thereafter. This reporting rule is authorized by Section 8(b)(10)(D) of TSCA which requires covered persons to provide EPA with the information the Agency needs to prepare that inventory.

The list of potentially affected industries is wide ranging and includes, among many others, mining, chemical manufacturing, plastics and resin manufacturing, medicinal and pharmaceutical manufacturing, coating and adhesive manufacturing, tire and rubber product manufacturing, fabricated metal products (including ammunition) manufacturing, circuit board and semiconductor manufacturing, office and industrial equipment manufacturing, watch and measuring equipment manufacturing, lighting and household appliance manufacturing, battery and electrical equipment manufacturing, boat and RV manufacturing, toy and jewelry manufacturing, and hazardous and non-hazardous waste facilities.

The reporting requirements focus on those who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process.  The proposed rule would not apply to persons generating, handling or managing mercury-containing waste, unless that person manufactures or recovers mercury and uses it or stores it for use. Nor would it apply to those merely engaged in the trade of mercury, those importing mercury-added products for personal use and not for commercial purposes, those manufacturing mercury incidentally (such as by burning coal) or those importing a product that contains mercury solely as a component in a mercury-added product (such as a toy with a mercury-added battery). It would, however, apply to mercury or mercury-containing by-products manufactured for commercial purposes and to the storage of mercury and mercury-added products after manufacture.

EPA is proposing an initial reporting deadline of July 1, 2019, with subsequent reports due every three years thereafter. Each report would cover only the preceding calendar year.

EPA is accepting comments on the proposed rule until December 26, 2017.

CATEGORIES: Climate Change, Consumer Law and Environment, Hazmat, Sustainability, Toxic Tort, TSCA

PEOPLE: Anne Samuels Kenney (Andi)

September 12, 2017 Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14

Torrence_jpgBy Allison A. Torrence

On Thursday, September 14th, from 5 pm to 7 pm, environmental attorneys and professionals will come together for a networking reception at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. This is the third year Jenner & Block has hosted this event, which continues to grow every year. Jenner & Block will be joined by a number of bar associations and organizations:

  • CBA Environmental Law Committee
  • CBA Young Lawyers Section Environmental Law Committee
  • ISBA Environmental Law Section
  • ABA Section of Environment, Energy, and Resources
  • Air & Waste Management Association Lake Michigan States Section
  • DRI Toxic Tort and Environmental Law Committee

Jenner & Block partner Allison Torrence is a former Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.

Details for this event are below. If you would like to join us at this reception, please RSVP here.

Environmental Attorney Reception

September 14, 2017 | 5:00 pm to 7:00 pm

Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654

RSVP

Reception Sponsors:

Sponsors

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

May 8, 2017 Jenner & Block Hosting Environmental Risk CLE Presentation with CBA and A&WMA

Torrence_jpgBy Allison A. Torrence

On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.

Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.

CBA AWMA Logos
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.

The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.

You can RSVP here.

Any questions can be directed to Pravesh Goyal: (312) 923-2643 or pgoyal@jenner.com

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

February 28, 2017 Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program

Lynn Grayson Photo

Jenner Block logo

By E. Lynn Grayson

Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.

Program Details:

Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.

Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center 

For more information about the program and to RSVP, please connect here.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

January 30, 2017 Happy New Year from the Corporate Environmental Lawyer Blog

Steven Siros Photo Allison TorranceBy Steven M. Siros and Allison A. Torrence

As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.

2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.

Our five most popular blogs from 2016 were:

EPA Lacks Authority to Regulate Plastic Microbeads in Water, by E. Lynn Grayson

Court Orders New EPA Spill Prevention Rules, by E. Lynn Grayson

Bipartisan TSCA Reform Act Signed by President Obama, by Allison A. Torrence

Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman

ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes, by Alexander J. Bandza

As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.

We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:

The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.

We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence, Steven M. Siros, Gabrielle Sigel, Alexander J. Bandza

January 24, 2017 Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules

Allison Torrence PhotoBy Allison A. Torrence

Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:

  • Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
  • Regulations that have been sent to the Federal Register but not published will be withdrawn.
  • Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).

Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

January 23, 2017 CFATS: New DHS Outreach

Lynn Grayson Photo

Seal of the US DHS ImageBy E. Lynn Grayson:

The Department of Homeland Security (DHS) continues to implement recent changes to the Chemical Facility Anti-Terrorism Standards (CFATS) program.  DHS updated its data platform and portal that will require regulated facilities to resubmit the Top-Screen information that originally was submitted in the 2008 time frame.

The DHS last year issued notice in the Federal Register (81 FR 47001, July 20, 2016) announcing revisions to its CFATS program, effective October 1, 2016. The main objective of the notice was to advise that the DHS was transitioning to revised versions of the applications for the Chemical Security Assessment Tool (CSAT), the CSAT Security Vulnerability Assessment (SVA) and the CSAT Site Security Plan (SSP). DHS implemented a three-step process to transition to these new versions: 1) temporarily suspended, effective July 20, 2106, the requirement for CFATS chemical facilities of interest to submit a Top-Screen and SVA; 2) replaced the current applications with CSAT 2.0 beginning in September 2016; and 3) reinstated the Top-Screen and SVA submission requirements effective October 1, 2016.

At this time, regulated facilities do not need to take any action unless notified by DHS. DHS began sending out notices to individual facilities every two weeks once the roll-out started in October 2016. Each batch of notifications will include sites from all risk-based tiers and also will include sites that have previously tiered out or are otherwise exempt from CFATS.

Other key highlights and insights include:

  1. While there is no requirement to do so, regulated facilities may choose to proactively resubmit a Top-Screen utilizing the new CFATS CSAT. Once notified, facilities will have 60 days to submit this updated and/or new Top-Screen.
  2. No changes have been made to the Appendix A identifying the chemicals of interest (COI) and the associated screening threshold quantity (STQ).
  3. CSAT 2.0 makes some changes in terms of how and when information is reported. For example, information previously collected through the SVA now may be collected through the Top-Screen. Other information collected in the past in the SVA now will be collected in the SSP.
  4. The new online SSP will come partially pre-populated from the new Top-Screen and the new SVA submissions as well as information from previous submissions.

In general, CFATS requires chemical facilities report COIs at or above the STQ through submission of a Top-Screen to DHS. Thereafter, DHS decides whether to impose security requirements upon the facility at issue. CFATS requirements apply to facility owners and operators that possess, consume, sell or create various chemicals that could be useful to conducting a terrorist event. There are over 300 COIs including commonly used chemicals such as ammonia, propane, hydrogen peroxide, flammables, bromine, aluminum, nitric oxide and vinyl chloride. Original compliance deadlines for submission of Top-Screen information was in 2008 time frame.

Facilities that previously submitted a Top-Screen survey, even those previously determined to be exempt from the CFATS requirements, will be required to resubmit the Top-Screen information using the new data CSAT 2.0 platform and portal. DHS will notify each facility about these new requirements and facilities will have 60 days to submit the new Top-Screen information. Facilities are welcome to be proactive and submit an updated Top-Screen prior to any DHS notification.

For further insight into these new requirements, please see the Federal Register notice at https://www.federalregister.gov/documents/2016/07/20/2016-16776/chemical-facility-anti-terrorism-standards or visit the CFATS program website at https://www.dhs.gov/chemical-facility-anti-terrorism-standards .

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, TSCA