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October 16, 2014 DOD Finalizes Amendments to DFARS Regarding the Storage, Treatment, and Disposal of Non-DOD Toxic and Hazardous Materials on DOD Sites

Bandza_Alexander_COLORBy 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.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort

September 20, 2014 TSCA Reform Dead for 2014?

Siros_Steven_COLORBy Steven M. Siros

 

Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014.  On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate.  Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a  confidential draft version of the TSCA reform bill that was still being negotiated.  According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith.  In contrast, Senator Boxer has released our confidential proposal to the press.  That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement.  As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.

Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations.  Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment." 

Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council.  In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.

CATEGORIES: Cercla, Climate Change, FIFRA, RCRA, Sustainability, Toxic Tort, TSCA

September 5, 2014 Sierra Club Ordered to Pay $6.4M in Attorneys Fees For Filing Frivolous CAA Lawsuit

Siros_Steven_COLORBy Steven M. Siros

 

On September 2, 2014, a United States District Court for the Western District of Texas ordered that the Sierra Club reimburse Energy Future Holdings Corporation and Luminant Generation Company $6.4 million in attorneys fees for filing what the court described as a "frivolous" Clean Air Act (CAA) lawsuit.  See Sierra Club v. Energy Future Holdings Corporation (W.D. Tex. Aug. 29, 2014).  In its complaint, the Sierra Club alleged that the defendants' coal-fired power plant was in violation of the CAA's particulate and opacity limits and sought $330 million in civil penalties and $140 million in pollution control upgrades.  The court granted partial summary judgment in favor of defendants, determining that there were no particulate emission violations at the power plant. Then, after a three day bench trial, the court concluded that there also were no opacity violations at the power plant.  In its memorandum opinion, the court determined that an award of costs of litigation, including attorneys' fees, was warranted pursuant to 42 U.S.C. §7604(d). 

42 U.S.C. § 7604(d) provides that a court, in issuing any final order under the citizen suit provisions of the CAA, may award litigation costs if it determines such an award to be appropriate.  Here, the District Court relied upon the United States Supreme Court's decision in Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978) to conclude that an award of litigation costs to prevailing defendants is appropriate where a plaintiff's claims were "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."

In concluding that a fee award was appropriate, the District Court noted the following: 

Here, Defendants were successful against all of Plaintiff's claims. Plaintiff was unable to show a prima facie case of a [particulate matter] violation, and the claim was dismissed at the summary judgment stage of litigation. Plaintiff was aware that Big Brown's Title V permit exempted it from [particulate matter]  deviations during maintenance, startup, or shutdown activities prior to filing suit, which rendered the claim meritless. And at trial, Plaintiff failed to prove any causation or injury to its lone standing witness or any other individual. Moreover, the one standing witness in the case was not even placed on Plaintiff's witness list even with the awareness that proving causation and linking the opacity violations at issue to injuries was required in order to prevail. Additionally, despite Plaintiff's knowledge that EFH had no role in the ownership or operations of Big Brown, it persisted in keeping EFH as a Defendant in the lawsuit. Even prior to the filing of the lawsuit, the TCEQ, who are experts in this field, had previously documented through its investigation reports that there were no [particulate matter] or opacity violations of the CAA at Big Brown. Defendants informed Plaintiff that these reports cannot be undermined. But even with this knowledge at its disposal, Plaintiff admitted that they failed to analyze or investigate the TCEQ investigation reports and filed suit. Consequently, after immense discovery, expense, and use of judicial resources, this Court found no evidence supporting any deficiency in the TCEQ's investigation reports. The evidence at trial, however, did reveal that during approximately 98.5 percent of the time that Big Brown was under normal operations, the opacity was generally 10 percent or less—far below the 30 percent limit. Moreover, each and every one of the opacity events that triggered a TCEQ investigation report found that an affirmative defense pursuant to the Texas Administrative Code was satisfied.

As such, the court concluded that plaintiff's claims were frivolous, unreasonable and groundless and therefore awarded defendants the sum of $6,446,019 in attorneys' fees, expert witness fees and costs from the Sierra Club.  The Sierra Club has indicated that it intends to appeal this decision. 

CATEGORIES: Air, Cercla, Climate Change, Sustainability, Toxic Tort

August 28, 2014 EPA Proposes Hazardous Waste Delisting For John Deere

By E. Lynn Grayson

EPA recently proposed to exempt 600 tons of wastewater treatment sludge filter cake from regulation as a RCRA hazardous waste. 79 FR 49253 (August 20, 2014). EPA's action follows John Deere's filing of a delisting petition on January 28, 2014 seeking to exempt these F006/F019 wastes generated at the John Deere Des Moines Works in Ankeny, Iowa.

John Deere (through its consultant) petitioned EPA to exclude from the list of hazardous wastes contained in 40 CFR 261.31, F006/F019 Waste Water Treatment Sludge Filter Cake from dewatering sludge generated by the plant wastewater treatment facility. The filter cake is subject to two waste listings as it is the result of treating a mixture of wastewater from different manufacturing processes.

The petitioned waste does not meet the criteria for which F006 was listed (i.e., cadmium, hexavalent chromium, nickel, cyanide (complexed)) or for which F019 was listed (i.e., hexavalent chromium, cyanide (complexed)) and that there are no other factors which would cause the waste to be hazardous. Specifically, the petition request is for a standard exclusion for 600 tons per calendar year of filter cake.

If approved, these wastes would be conditionally excluded from RCRA hazardous waste regulations. Even if delisted, the sludge would be disposed of at a RCRA Subtitle D landfill permitted by Iowa Department of Natural Resources to manage industrial solid wastes.

EPA is accepting comments on this proposed action until September 19, 2014.

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

July 11, 2014 Appellate Court Rejects Challenge To NPL Listing

By Steven M. Siros

A recent decision from the U.S. Court of Appeals for the D.C. Circuit rejected a challenge to U.S. EPA's decision to list a site on the National Priorities List ("NPL"), finding that although the petitioner had standing to challenge the NPL listing, it impermissibly sought to rely on information that was not contained in the administrative record and failed to demonstrate that U.S. EPA's decision to list the site was arbitrary and capricious. In CTS Corp. v. EPA, the petitioner, CTS Corporation, challenged U.S. EPA's decision to list a former manufacturing facility on the NPL. The site in question (which was the subject of an recent Supreme Court decision finding that CERCLA's Section 9658 did not preempt a state statute of repose (see CTS Corp. v. Waldburger)) was added to the NPL at least in part on the basis of groundwater contamination that had allegedly migrated from the site into an adjacent residential neighborhood. U.S. EPA conceded that but for the residential groundwater contamination, the site's Hazard Ranking System score would not have exceeded the 28.5 threshold required to list a site on the NPL. 

As part of its challenge to U.S. EPA's listing decision, CTS argued that U.S. EPA had failed to adequately investigate possible alternative sources of the residential groundwater contamination. The court rejected that argument, noting that the handful of challenges that CTS did timely raise concerning alternative sources amounted to "little more than methodological nit-picking". The court was more critical, however, of CTS's effort to present new evidence in the form of an expert report that purported to critique a prior U.S. EPA isotope analysis of the groundwater samples that were taken from the residential wells. The court rejected what the court characterized as CTS's attempt to "bypass the administrative record" noting that it was "black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision".  The court therefore denied CTS' petition challenge to the NPL listing.

CATEGORIES: Cercla, RCRA, Toxic Tort, Water

PEOPLE: Steven M. Siros

July 2, 2014 Illinois Appellate Court Rules That Workers’ Compensation Exclusivity Not A Bar To Subsequent Personal Injury Claim

By Steven M. Siros

In a case of first impression, an Illinois Appellate Court recently allowed a plaintiff to pursue asbestos personal injury claims against his employer, finding that the plaintiff was not limited to seeking redress under Illinois' workers' compensation laws. In the matter of Folta v. Ferro Engineering, the plaintiff was allegedly exposed to asbestos while employed at a plant owned by defendant between 1966 and 1970. Forty-one years later, plaintiff was diagnosed with mesothelioma. By this time, plaintiff's workers' compensation claim was time-barred by the 25-year statute of repose for asbestos-related injuries under Illinois' Workers' Compensation Act and the three-year statute of repose for asbestos-related diseases under Illinois' Workers' Occupational Diseases Act. The trial court granted the employer's motion to dismiss, finding that plaintiff's claims were in fact time-barred.

On appeal, plaintiff argued that because his injuries were not otherwise compensable under the Workers' Compensation Act and/or Workers' Occupational Diseases Act, the exlusivity provisions of those statutes should not operate as a bar to his personal injury claims.  The appellate court agreed, finding that since plaintiff was unable to recover under Illinois' regulatory scheme, there was no risk of double recovery and/or excessive litigation. The appellate court therefore reversed the trial court's dismissal of plaintiff's claim and remanded the case back to the trial court.

Interestingly, what appears to be missing from the appellate court's analysis is any discussion concerning the rationale behind Illinois workers' compensation regulatory scheme (to provide employers with some degree of certainty with respect to the nature and extent of an employee's compensation in exchange for the employee being assured of compensation while avoiding the cost, delay and uncertainty of litigation).  Additionally, the court's decision would seem to implicitly incorporate a discovery rule into Illinois' statute of repose.

CATEGORIES: Toxic Tort

PEOPLE: Steven M. Siros

June 18, 2014 EPA Evaluates Fracking Chemicals

By Robert L. Graham

The EPA recently initiated a process that may result in the first federal regulation of chemicals used in fracking, a drilling technique that has significantly enhanced energy production and development in the United States.

In a response to a citizen petition under Section 21 of TSCA submitted by environmental groups in 2011 seeking the disclosure of the chemicals used in fracking, the EPA issued an advance notice of proposed rulemaking on May 9, 2014. Pursuant to that notice, the EPA announced that it will be considering rules requiring oilfield service companies and others to provide disclosure concerning the health and safety of the chemicals used in fracking. At the same time, the EPA indicated that it may stop short of issuing final rules, by instead developing incentives to induce voluntary disclosure.

Since fracking was first initiated in the United States, environmental groups have been demanding that EPA collect information on the fluids which are injected with water and sand in the fracking process. The mixture of those fluids with water and sand breaks apart underground rocks to release oil and natural gas. In particular, fracking activities include the injection of water, chemicals, proppant, and/or tracers (i) to prepare geologic formations for hydraulic fracturing, (ii) to complete a hydraulic fracturing stimulation stage, (iii) to evaluate the extent of resulting fractures, and (iv) to ensure the future ability to continue enhancement of production through stimulation by hydraulic fracturing. During each hydraulic fracturing stimulation stage, pressurized fluids containing carrier fluids such as water or gas and any combination of proppant and chemicals are injected into wells, to fracture portions of the formation surrounding a selected well section.

As part of its rulemaking, EPA is requesting comment on the information that should be obtained or disclosed and the mechanism for obtaining or disclosing information about chemicals and mixtures used in hydraulic fracturing. EPA is also seeking comment on best management practices for the generation, collection, reporting, and/or disclosure of public health and environmental information from or by companies that manufacture, process, or use chemical substances or mixtures in hydraulic fracturing activities—that is, practices or operations that can be implemented and verified in order to achieve protection of public health and the environment—and whether voluntary third-party certification and incentives for disclosure could be valuable tools for improving chemical safety. In addition, the EPA is seeking comment on ways to minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency and public understanding. Finally, EPA is soliciting comments on incentives and recognition programs that could be used to support the development and use of safer chemicals in hydraulic fracturing.

As authority for its rulemaking, EPA has invoked TSCA Section 8(d) (15 U.S.C. 2007 (d)), which authorizes EPA to require the submission of lists of health and safety studies conducted or initiated by or for, or known to or reasonably ascertainable by manufacturers, processors, and distributors of (and any person who proposes to manufacture, process, or distribute) any chemical substance or mixture. TSCA Section 8(d) also authorizes EPA to require the submission of copies of studies that are otherwise known by the person submitting the list. EPA has also invoked the Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.), which makes pollution prevention the national policy of the United States. The PPA identifies an environmental management hierarchy in which pollution "should be prevented or reduced whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or release into the environment should be employed only a last resort…" (42 U.S.C. 13103). Among other requirements, the PPA directs EPA to develop improved methods of coordinating, streamlining, and assuring public access to data collected under federal environmental statutes; to facilitate the adoption of source-reduction techniques by businesses; and to establish an annual awards program to recognize a company or companies that operate outstanding or innovative source reduction programs.

While the EPA has labeled its proposed rulemaking as a major first step in considering whether fracking should be a more transparent process, the oil and gas community is wary of any regulation which would undercut the growth and development of fracking. Instead, oil and gas producers have typically advocated for regulation on a state-by-state basis, which they believe will be more effective as well as more compatible with their business interests. At the same time, environmentalists have already criticized the EPA's proposed rulemaking as merely a "baby" step, because there is no guarantee that the EPA will issue rules mandating the disclosure of chemicals and mixtures used in fracking.

The controversy over disclosure will continue to grow. Fracking has already led to a natural gas boom in a number of states, including, in particular, North Dakota, Pennsylvania, Ohio, and Texas. Although drilling companies have been disclosing chemical information on an industry website (http://www.fracfocus.org/), critics contend that the website allows too many exemptions that keep ingredients secret and precludes ready aggregation of information concerning the specific chemicals used in fracking. Given the fracking boom, whether and to what extent the chemicals used in fracking are disclosed will undoubtedly remain a hot topic, both on the state and federal levels.

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

PEOPLE: Robert L. Graham

May 21, 2014 Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions

Bandza_Alexander_COLORBy: Alexander Bandza

 

As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.  The electronic (PDF) versions of these chapters are now available online:

The entire publication is available from IICLE here.

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

April 23, 2014 Happy Earth Day - 2014

By: Robert L. Graham and E. Lynn Grayson

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.

Robert L. Graham (rgraham@jenner.com) and E. Lynn Grayson (lgrayson@jenner.com), Co-Chairs, Environmental, Workplace Health and Safety Practice Group

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

PEOPLE: Robert L. Byman

April 16, 2014 Federal Railroad Administration to Issue Proposed Rule on Minimum Train Crew Size

Grayson_Lynn_COLOR

By: E. Lynn Grayson

 

The U.S. Department of Transportation's Federal Railroad Administration (FRA) recently announced its intention to issue a proposed rule requiring two-person train crews on crude oil trains and establishing minimum crew size standards for most main line freight and passenger rail operations. The FRA also intends to advance a rulemaking on train securement and recommends a rulemaking on the movement of hazardous materials.

The announcement follows the deliberations of three Railroad Safety Advisory Committee (RSAC) Working Groups on Appropriate Train Crew Size, Securement, and Hazardous Materials Issues. All three Working Groups were created at DOT's request last summer in response to the Lac-Mégantic derailment. The emergency meeting was held to evaluate and consider wide-ranging proposals to further enhance railroad safety including the safe shipment of crude oil by rail. Two of the Working Groups produced recommendations that were adopted by the full RSAC for consideration in future rulemakings. In light of the working group's failure to reach consensus on crew size, the FRA took action today to move forward with a rulemaking.

While existing FRA regulations do not mandate minimum crew staffing requirements, current industry practice is to have two person crews for over-the-road operations. The notice of proposed rulemaking (NPRM) will most likely require a minimum of two person crews for most mainline train operations including those trains carrying crude oil. It is also expected to include appropriate exceptions.

FRA plans to issue an additional NPRM based on the consensus recommendations of the Securement Working Group and approved by the full RSAC that would prohibit certain unattended freight trains or standing freight cars on main track or sidings and require railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders. It would also require locomotive cabs to be locked and reversers to be removed and secured. Railroads would also be required to obtain advance approval from FRA for locations or circumstances where unattended cars or equipment may be left.

The full RSAC also approved four recommendations of the Hazardous Materials Issues Working Group relating to identification, classification, operational control and handling of certain shipments. The four recommendations, directed to the Pipeline and Hazardous Materials Safety Administration (PHMSA), include amending or revising the definitions of "residue" and "key train," and clarifying its regulatory jurisdiction over the loading, unloading and storage of hazmat before and during transportation. PHMSA continues to advance a rulemaking addressing the integrity of DOT Specification 111 tanker cars and the safe shipment by rail of flammable materials such as crude oil.

On August 29, 2013, the first-ever emergency session of the RSAC was held in response to the July 6, 2013 derailment of an unattended Montreal, Maine and Atlantic Railway freight train containing crude oil in Lac-Mégantic, Quebec, Canada. Building upon Secretary Anthony Foxx's February Agreement with the Rail and Petroleum Industries, the FRA's Emergency Order 28 and Safety Advisory 2013-06, PHMSA's Operation Safe Delivery, Safety Alerts and a DOT Emergency Order, the three RSAC working groups reviewed existing regulations and standards to identify and mitigate the risks posed by such shipments and prevent future accidents.

 

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

April 9, 2014 IICLE Releases New Environmental Law Publication

Grayson_Lynn_COLOR

By: E. Lynn Grayson

 

The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.

According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.

The following chapters in this publication were authored by Jenner & Block EHS lawyers.

* * *

Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago

Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago

 * * *

Chapter 5 – Illinois Environmental Forums
Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago

 * * *

Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago

The publication is available from IICLE at http://iicle.inreachce.com/.

 

 

 

 

 

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

April 4, 2014 Certain Pesticides Fail New U.S. EPA Screening Guide for Volatilization Risks

Siros_Steven_COLORBy: Steven M. Siros

 

On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides"This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.

U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.

In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.

U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.

CATEGORIES: FIFRA, Hazmat, OSHA, Sustainability, Toxic Tort, TSCA

March 11, 2014 Lawsuit Seeks To Compel U.S. EPA Disclosure Of Pesticide Inert Ingredients

Siros_Steven_COLORBy: Steven M. Siros

 

On March 5, 2014, several environmental groups filed a lawsuit against U.S. EPA seeking to compel the public disclosure of "inert" ingredients in pesticide products. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), pesticide manufacturers are obligated to list "active" ingredients. However, "inert" ingredients are not currently subject to the same disclosure requirements as "active" pesticide ingredients. According to the lawsuit, U.S. EPA has authority under FIFRA to also require the disclosure of "inert" ingredients which can comprise a significant percentage of a pesticide product's formulation.

As set forth in the complaint, in August 2006, a coalition of public health and environmental organizations submitted a petition requesting that U.S. EPA require the disclosure of certain "inert" chemicals used in pesticide products. In December 2009, U.S. EPA initiated an advanced notice of proposed rulemaking that would have required this disclosure. However, U.S. EPA has taken no further action with respect to this advance notice. The lawsuit seeks to compel U.S. EPA to either complete its proposed rulemaking or otherwise take action with respect to the pending petition.

Please click here to see a copy of the complaint.

CATEGORIES: Climate Change, FIFRA, Toxic Tort, TSCA

February 13, 2014 EPA 2013 Enforcement Results: Higher Penalties With Fewer Enforcement Proceedings

Siros_Steven_COLORBy:  Steven M. Siros

 

U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA. 

U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters. 

Please click here to go to U.S. EPA's 2013 enforcement results website. 

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

February 11, 2014 EPA Signs Final E-Manifest Rule

Grayson_Lynn_COLORBy:  E. Lynn Grayson

 

EPA signed a final rule authorizing the use of electronic manifests for hazardous waste transportation as an alternative to paper manifests traditionally relied upon. The final rule will authorize the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (e-manifest). 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.

On October 5, 2012, President Obama signed into law, the Hazardous Waste Electronic Manifest Establishment Act 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.

Milestones for EPA Actions:

  • The Act requires that the e-Manifest Information Technology (IT) system must be up and running within three years after the Act is passed
  • The EPA must issue regulation authorizing use of electronic manifests within one year after the Act is passed
  • The EPA must establish a System Advisory Board within three years after the Act is passed in order to advise the EPA on system performance and user fees

Scope provisions:

  • e-Manifest extends to all federally- and state-regulated wastes requiring manifests
  • Allows that the use of electronic manifests is optional for users, and authorizes centralized collection of data from electronic and paper manifests

Fee and spending provisions:

  • Authorizes the EPA to collect reasonable user fees for all system related costs including development and maintenance

The rule is intended to streamline the uniform manifest system making it more cost-effective and user friendly. A pre-publication version of the final rule is available on the EPA website via http://www.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort