EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory
By Andi Kenney
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.
Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14
By 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
Jenner & Block Hosting Environmental Risk CLE Presentation with CBA and A&WMA
By 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.
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 firstname.lastname@example.org
Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program
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.
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.
Happy New Year from the Corporate Environmental Lawyer Blog
By 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.
Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
By 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.
CFATS: New DHS Outreach
By 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:
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.
No changes have been made to the Appendix A identifying the chemicals of interest (COI) and the associated screening threshold quantity (STQ).
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.
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 .
OSHA Issues Final Beryllium Rule Reducing Workplace Exposure Limit 10-Fold
By Allison Torrence
The Occupational Safety and Health Administration (OSHA) published a final rule on Occupational Exposure to Beryllium in the Federal Register on January 9, 2017. The final rule reduces the permissible exposure limit (PEL) for beryllium to 0.2 μg/m3, averaged over 8-hours. The previous PEL for beryllium, established more than 40 years ago, was 2.0 μg/m3. The rule also establishes a new short term exposure limit for beryllium of 2.0 μg/m3, over a 15-minute sampling period.
As we discussed previously on this blog, OSHA proposed this rule on August 7, 2015 and took extensive public comment before issuing this final version. OSHA estimates that approximately 62,000 workers are exposed to beryllium in their workplaces and that the rule will save almost 100 lives from beryllium-related diseases and prevent 46 new cases of chronic beryllium disease each year, once the effects of the rule are fully realized.
In addition to the PEL reductions, the final rule requires employers to use engineering and work practice controls (such as ventilation and change rooms) to limit worker exposure to beryllium; provide respirators when controls cannot adequately limit exposure; limit worker access to high-exposure areas; develop a written exposure control plan; and train workers on beryllium hazards. The rule also provides for medical exams to monitor exposed workers and medical removal protection benefits to workers identified with a beryllium-related disease.
The rule will take effect on March 10, 2017. Employers will have one year (until March 12, 2018) to comply with most of the requirements, two years (until March 11, 2019) to provide any required change rooms and showers, and three years (until March 10, 2020) to implement engineering controls.
More information on the Occupational Exposure to Beryllium rule is available on the OSHA website.
EPA Publishes Proposed Rule to Ban Certain Uses of TCE
By Allison Torrence
On December 7, 2016, EPA published a proposed rule to ban certain uses of trichloroethylene (TCE) under section 6(a) of the Toxic Substances Control Act (TSCA) due to risks to human health from those uses. The proposed rule would prohibit the manufacture (including import), processing, distribution in commerce and commercial use of TCE for aerosol degreasing and for spot cleaning in dry cleaning facilities.
As we previously reported on this blog, EPA recently included TCE on its list of the first 10 chemicals it will evaluate broadly for potential risks to human health and the environment pursuant to requirements of the 2016 TSCA Reform Act. In a 2014 risk assessment, EPA identified serious risks to workers and consumers associated with TCE uses, concluding that the chemical can cause a range of adverse health effects, including cancer, development and neurotoxicological effects, and toxicity to the liver.
Based on the 2014 risk assessment, EPA has preliminarily determined that the use of TCE in aerosol degreasing and for spot cleaning in dry cleaning facilities presents an unreasonable risk of injury to health and is proposing to prohibit such uses. EPA’s risk assessment also preliminarily indicated that the use of TCE in vapor degreasing presents an unreasonable risk of injury to health. EPA has stated that it intends to issue a separate proposed rule for TCE use in vapor degreasing by the end of the year. EPA then plans to issue one final rule covering both the current proposed ban on aerosol degreasing and spot cleaning and the forthcoming vapor degreasing proposal.
EPA issued a press release and statement from Jim Jones, assistant administrator for the Office of Chemical Safety and Pollution Prevention, praising the new authority granted to EPA under the TSCA Reform Act and the recent actions of EPA under that Act:
For the first time in a generation, we are able to restrict chemicals already in commerce that pose risks to public health and the environment. Once finalized, today’s action will help protect consumers and workers from cancer and other serious health risks when they are exposed to aerosol degreasing, and when dry cleaners use spotting agents. I am confident that the new authority Congress has given us is exactly what we need to finally address these important issues.
The proposed rule will be published in the Federal Register in the coming days. Comments on the proposed rule can be submitted by the public for 60 days following publication in the Federal Register. Notably, the comment period on the proposed rule will run past the end of the Obama administration and any final rule issued after the comment period would be promulgated under the Trump administration, which could change or withdraw the proposal.
More information on the proposed rule is available at the EPA website.
TSCA Reform in Action: EPA Releases List of 10 Chemicals Slated for Risk Evaluations
By Allison Torrence
On November 29, 2016, EPA announced the first 10 chemicals it will evaluate for potential risks to human health and the environment under the new Toxic Substances Control Act (TSCA) Reform Act, which was signed into law back in June. The TSCA Reform Act required EPA to publish this list of priority chemicals and begin the risk evaluation process on these chemicals by December 19, 2016. By the end of 2019, EPA will be required to have at least 20 chemical risk evaluations in process at any given time.
The first 10 chemicals to be evaluated by EPA are:
Cyclic Aliphatic Bromide Cluster
Pigment Violet 29
Tetrachloroethylene, also known as perchloroethylene
This list will be published in the Federal Register in the coming weeks, at which point it will trigger several statutory deadlines for these 10 chemicals:
EPA must release a scoping document for each chemical within 6 months.
EPA must complete risk evaluations for each chemical within three years.
If the risk evaluation determines that a chemical presents an unreasonable risk to humans and the environment, EPA must mitigate that risk within two years.
More information on the TSCA Reform Act and EPA’s recent actions can be found on EPA’s website.
Chicago: New Industrial Growth Zones Program
By E. Lynn Grayson
Mayor Rahm Emanuel and Cook County Board President Toni Preckwinkle recently launched an unprecedented effort to generate new industrial investment in Chicagoland neighborhoods. The Industrial Growth Zones program will accelerate neighborhood development in seven designated areas over the next three years by removing longstanding hurdles to development and providing a broad set of services to support property owners and industrial businesses. The purpose of the program to spur economic growth and generate real, sustainable jobs by promoting investment and industrial development in Chicago neighborhoods.
The program will address two primary issues traditionally viewed as obstacles to new landowners and developers: 1) vacant or unused lands with environmental conditions; and 2) often complex governmental regulatory oversight. As part of the program, participants will obtain access to a new site certification program making information about land available and transparent, allowing preparations for faster development. In addition, the program may provide up to $130,000 in financial assistance to fund environmental site assessments and remediation, if needed. Critical assistance also will be provided to lead projects through the City's permitting and regulatory requirements.
During the three-year pilot program, the designated zones include the Northwest, Greater Southwest, Burnside and Calumet Industrial Corridors, and the Roosevelt/Cicero Redevelopment Area in Chicago; and several South Suburban communities which contain significant assets, but face very real economic challenges The City of Chicago Department of Planning and Development and Cook County Bureau of Economic Development are collaborating with partners including the Civic Consulting Alliance, World Business Chicago and the Zeno Group on the initiative.
Working within the City of Chicago to develop or redevelop impacted property is always challenging. This new program is a positive development offering support to streamline and aid potential new landowners and developers.
Ninth Circuit Denies Rehearing Petition in Novel Aerial Deposition CERCLA Case
By Allison Torrence
The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.
The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.
The defendant filed a motion to dismiss the plaintiffs’ CERCLA claims, which the trial court denied. The trial court found that air emissions could constitute disposal under CERCLA, but, recognizing the novel nature of this argument, certified the issue for immediate appeal to the Ninth Circuit. The three-judge panel in the Ninth Circuit reversed.
CERCLA does not set forth its own definition of “disposal”, rather it cross-references the definition in RCRA. Thus, under both CERCLA and RCRA “disposal” is defined as:
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3).
The Ninth Circuit found that plaintiffs’ interpretation of “disposal” to include “aerial deposition” is “a reasonable enough construction”, but ultimately determined that Congress did not mean to include the gradual spread of contaminants without human intervention in the definition of “disposal” in CERCLA (or RCRA). Instead, hazardous waste must first be placed into or on the land by human involvement. Thus, the defendants in this case did not arrange for the disposal of hazardous waste and were not responsible parties under CERCLA.
The State of Washington and the Tribes filed for rehearing and rehearing en banc, which were denied without further explanation on October 11, 2016. The plaintiffs now have 90 days to seek an appeal in the U.S. Supreme Court, if they choose to do so.
2016 Democratic Party Platform: Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice
By Allison Torrence
Last week, we examined the key environmental issues raised in the 2016 Republican platform. Now that the political focus has shifted from Cleveland to Philadelphia, where Democrats are holding their convention, we will examine what the Democratic Party has to say about its environmental priorities in the 2016 Democratic Party Platform. One of the Democratic Party platform’s 13 main sections is entitled “Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice.” Environmental issues are also raised in the section titled “Confront Global Threats”, which discusses “Global Climate Leadership.”
In the platform’s preamble, the Democrats state that:
Democrats believe that climate change poses a real and urgent threat to our economy, our national security, and our children’s health and futures, and that Americans deserve the jobs and security that come from becoming the clean energy superpower of the 21st century.
Other key positions from the Democratic environmental platform include:
TSCA Reform Act Passed, Sent to the President for Signature
By Allison Torrence
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.
Gold King Mine Spill Update: New Mexico Sues EPA
By E. Lynn Grayson
EPA’s woes over alleged mismanagement of the Gold King Mine spill in August 2015 continue with a new lawsuit recently filed by the State of New Mexico in federal district court in Albuquerque. The lawsuit names the EPA as a defendant, along with an EPA environmental contractor and mine owners contributing to the mismanagement of reclamation waters. New Mexico contends that the Agency has not done enough to remedy the toxic release of a flood of wastewater contaminated with an estimated 880,000 pounds of heavy metals into local rivers.
New Mexico’s suit seeks a declaratory judgment that the contractor and mine owners violated the Resource Conservation and Recovery Act, as well as compensatory and punitive damages for alleged negligence and gross negligence. New Mexico also is asking for a declaratory judgment against all defendants under the Comprehensive Environmental Response, Compensation and Liability Act.
Although the suit does not specify damages, attorneys for New Mexico said communities are owed at least $7 million for emergency response costs and third-party monitoring of water quality. They said the defendants should pay another $140 million in damages for estimated economic harm. This calculation estimated the harm done to rivers that are critical for agricultural and ranching use; to the Navajo Nation, which owns a tract of land the size of a small state that was affected; and to recreation that provides a significant amount of New Mexico’s income.
The New Mexico Attorney General is requesting full and just compensation for the environmental and economic damage caused by EPA’s spill. The lawsuit alleges that the effects of EPA’s spill were far worse than reported. New Mexico Environmental Department Cabinet Secretary Ryan Flynn has stated publicly that “from the very beginning, the EPA failed to hold itself accountable in the same way that it would a private business.”
While EPA declined to formally comment on the lawsuit, an Agency spokesperson advised that the EPA has taken responsibility for the spill and already paid the State of New Mexico $1.3 million.
The lawsuit is the first state litigation against the EPA over the spill. Other states impacted include Arizona, Colorado, Utah, and the Navajo Nation.