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December 17, 2012 New Guide For Safer Chemicals Released

Grayson_Lynn_COLORBy E. Lynn Grayson

 

The Guide to Safer Chemicals (Guide) was released today by a broad coalition of groups working to replace chemicals of high concern with safer alternatives. This first-of-its kind tool sets benchmarks for how manufacturers, retailers and purchasers can track their progress to using chemicals in products that are safer for human health and the environment.

"This practical, easy-to-use guide is intended to revolutionize the way companies are able to move away from hazardous chemicals and replace them with safer alternatives," said Dr. Mark Rossi, Co-Chair of BizNGO and lead author of The Guide." Today's business leaders recognize that comprehensive programs for safer chemicals are essential to innovation, informed decisions, and clear communication with suppliers."

Every week new scientific research links exposure to chemicals of high concern in products to the increasing incidence of serious chronic health problems, including asthma, childhood cancers, infertility and learning and development disabilities. The uncertainty surrounding the safety of chemicals is eroding consumer confidence in a wide range of products.

The Guide is a how-to-resource for implementing the visionary BizNGO Principles for Safer Chemicals, which are: 1) Know & Disclose Product Chemistry; 2) Assess & Avoid Hazards; 3) Commit to Continuous Improvement; & 4) Support Public Policies & Industry Standards.

The Guide is a practical tool for all downstream users of chemicals (purchasers, retailers and product manufacturers) to benchmark their progress toward safer chemicals use. A simple hiking analogy of four benchmarks—Trailhead, Base Camp, High Camp and Summit—illustrates a company's progress in implementing the Principles.

Based on industry best practices, the BizNGO Principles set the following four goals:

#1: Know and Disclose Product Chemistry: Companies need to know the chemicals in their products and supply chains and set goals to disclose this information to the public.

#2: Assess and Avoid Hazards: Once companies or suppliers know the chemicals in their products or processes, they evaluate them, identify chemicals of high concern, and implement programs to substitute chemicals of high concern with safer alternatives. Buyers work with suppliers to implement this principle.

#3: Commit to Continuous Improvement: Companies set goals and publicly report on their progress to achieving these goals, which include endorsing the four BizNGO Principles and establishing a corporate chemicals policy.

#4: Support Public Policies and Industry Standards: Companies advance the implementation of the above principles in public policies and industry standards. Goals include: Publicly presenting their work on implementing the principles; Integrating implementation of the principles into industry standards and other voluntary initiatives; Collaborating with NGOs on implementing the principles; and Engaging in public policies – regulations and legislation – that support implementing the principles.

The Guide was released today at the 7th annual meeting of BizNGO, a coalition formed in 2006 that includes over 500 leaders from businesses, non-governmental organizations (NGOs), universities, and government agencies. Some of the companies that have endorsed the BizNGO Principles include: Staples, Hewlett-Packard, Dignity Health, Kaiser Permanente, Construction Specialties, Novation, Perkins+Will, Shaw Industries, Seventh Generation, Method, and Premier. Some of the endorsing NGO's include: Health Care Without Harm, Center for Environmental Health, Breast Cancer Fund, Ecology Center, Clean Water Action, Clean Production Action, and Health Building Network.

For more information about The Guide and the work of BizNGO, visit the website at http://www.bizngo.org/.

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

December 17, 2012 Court Finds That Environmental Documents Obtained From Public Agency Protected By Work Product Privilege

Siros_Steven_COLORBy Steven M. Siros

 

In an environmental coverage dispute, a New York federal judge recently ruled that information obtained by an insurance company from governmental agencies was protected work product and need not be disclosed in discovery. In the matter of Travelers Indemnity Co., et al. v. Northrop Grumman Corp., Northrop sought communications between its insurers and various agencies, including U.S. EPA, the Navy, and the New York Department of Environmental Conservation. Northrop's insurers argued that these materials were protected from disclosure under the attorney-client and work product privileges, likening these materials to the materials selected by an attorney in preparation for a deposition.

The court agreed, finding that information received from these public agencies after the insurers' declination of coverage fell "within the ambit of what the case law clearly indicates reflects the attorneys' work product: the documents were selected pursuant to instructions of counsel."  The court also refused to order the insurers to disclose the identity of persons interviewed unless those persons were interviewed prior to the insurers' declination of coverage.

To see a copy of the order, click here.

CATEGORIES: Cercla, RCRA, Toxic Tort

December 13, 2012 CERCLA BFPP Protections Applicable To Certain Tenants

Grayson_Lynn_COLORBy E. Lynn Grayson

 

EPA has released new CERCLA guidance confirming that certain tenants who lease contaminated or formerly contaminated properties may be entitled to self implementing bona fide prospective purchaser liability protections.

Section 107(a)(1) of CERCLA provides that "the owner and operator of a vessel or facility ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for ... (A) all costs of removal or remedial action incurred by the United States Government ... ." Thus, without liability protection, an owner or operator of contaminated property is a potentially liable party under CERCLA. Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or "BFPPs." CERCLA § 107(r)(1) states:

Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser's being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.

In general terms, CERCLA § 101(40)(A)-(H) defines a BFPP as "a person (or a tenant of a person) that aquires ownership of a facility after [January 11, 2002]" and that establishes that: 

  • all disposal of hazardous substances at the facility occurred prior to acquisition;
  • the person conducted all appropriate inquiry (AAI) into the previous ownership and uses of the facility;
  • the person provides legally required notices;
  • the person takes reasonable steps with respect to hazardous substance releases;
  • the person provides cooperation, assistance, and access;
  • the person complies with land use restrictions and institutional controls;
  • the person complies with information requests and administrative subpoenas; and
  • the person is not potentially liable for response costs at the facility or "affiliated" with any such person.

In its updated guidance, EPA confirms: 1) a tenant may derive BFPP status from an owner who satisfies the BFPP criteria; or, 2) EPA may exercise its enforcement discretion to treat the tenant as a BFPP, assuming BFPP criteria are met.

The statutory protection found at CERCLA § 107(r)(l) is self-implementing and the EPA generally will not be involved with facility-specific transactions or determinations of BFP status.

Three new model letters addressing site-specific "comfort" or status letters for tenants involved in renewable energy projects on contaminated properties also are available including:

  • model federal Superfund interest and no current federal Superfund interest comfort/status letter;
  • a model based on no previous federal interest comfort/status letter; and,
  • a model state action comfort/status letter.

For more information or questions about this guidance, please contact Susan Boushell at 202-564-2173 (boushell.susan@epa.gov) or James Miles at 202-564-5161 (miles.james@epa.gov) in the Office of Enforcement and Compliance Assurance, or Brigid Lowery at 202-566-0198 (lowery.brigid@epa.gov) in the Office of Solid Waste and Emergency Response.

For a listing of the available tools and policies, including the EPA's policy on the issuance of comfort letters, see: http://cfpub.epa.gov/compliance/resources/policies/cleanup/superfund/.

CATEGORIES: Cercla, RCRA, Toxic Tort, Water

November 27, 2012 Fox River PCB Cleanup Allowed To Proceed

Siros_Steven_COLORBy Steven M. Siros

 

On November 21, 2012, a federal district court in Wisconsin rejected PRP efforts to seek modification of the remedial plan established by U.S. EPA and the State of Wisconsin to address PCB-contaminated sediments in the Fox River. In 2010, U.S. EPA and the State of Wisconsin sued several potentially responsible parties ("PRPs") in order to enforce a Unilateral Administrative Order ("UAO") that had been issued in 2007. As part of that enforcement proceeding, several PRPs argued that U.S. EPA and the State of Wisconsin had acted in an arbitrary and capricious manner by failing to issue a formal ROD amendment for the Fox River PCB remediation in light of significant exceedences of the original cost estimates.

In 2003, U.S. EPA issued a ROD requiring the dredging of approximately 6.5 million cubic yards of contaminated sediments at an estimated cost of approximately $325 million. In 2007, a ROD amendment was issued that adopted a hybrid approach that provided for both capping and dredging the PCB-contaminated sediments.  The estimated cost of the hybrid remedy was $432 million. In 2009, remediation costs for the hybrid remedy were projected to increase to $701 million (although the PRPs argued that remediation costs were really closer to $1.5 billion). Notwithstanding the significant cost increases, U.S. EPA didn't issue another ROD amendment but instead issued an Explanation of Significant Differences ("ESD"). The ESD acknowledged the cost increase but concluded that the increase did not pose a "fundamental" change that would necessitate a ROD amendment.

The court rejected the PRPs' argument that the cost increase by itself required the issuance of a ROD amendment. Although the court acknowledged that a 62% cost increase was significant, the court concluded that the cost increase itself did not alter the basic features of the remedy such that a ROD amendment would be required. Merely because something is more expensive does not change the basics of the underlying remedy, the court concluded.

The PRPs also raised a number of technical issues that they contend demonstrated a clear bias by the governmental agencies in favor of the more expensive dredging remedy. The court rejected these arguments, finding that "the record demonstrates a colossal effort to get it right and to consider all options fairly and honestly—without prejudice, without arbitrariness and without caprice." The court therefore denied the PRPs summary judgment motions and instead granted summary judgment in favor of the government on the issue of the propriety of the hybrid remedy.

To read a copy of the court's opinion, please click here.

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

November 21, 2012 National Research Council Updates Contaminated Groundwater Sites Report

Grayson_Lynn_COLORBy E. Lynn Grayson

 

At least 126,000 sites across the U.S. have contaminated groundwater that requires remediation, and about 10 percent of these sites are considered "complex," meaning restoration is unlikely to be achieved in the next 50 to 100 years due to technological limitations, says a new report titled Alternatives for Managing the Nation's Complex Contaminated Groundwater Sites from the National Research Council. The report adds that the estimated cost of complete cleanup at these sites ranges from $110 billion to $127 billion, but the figures for both the number of sites and costs are likely underestimates.

The U.S. Department of Defense has already spent approximately $30 billion in hazardous waste remediation to address past legacies of its industrial operations. DOD sites represent approximately 3.4 percent of the total active remediation sites, but many of these sites present the greatest technical challenges to restoration with very high costs. Therefore, the agency asked the National Research Council to examine the future of groundwater remediation efforts and the challenges facing the U.S. Army and other responsible agencies as they pursue site closures.

The report is organized around five key inquiries:

  1. Size of the Problem. At how many sites does residual contamination remain such that site closure is not yet possible? At what percentage of these sites does residual contamination in groundwater threaten public water systems?
  2. Current Capabilities to Remove Contamination. What is technically feasible in terms of removing a certain percentage of the total contaminant mass? What percent removal would be needed to reach unrestricted use or to be able to extract and treat groundwater for potable reuse? What should be the definition of "to the extent practicable" when discussing contaminant mass removal?
  3. Correlating Source Removal with Risks. How can progress of source remediation be measured to best correlate with site-specific risks? Recognizing the long-term nature of many problems, what near-term endpoints for remediation might be established? Are there regulatory barriers that make it impossible to close sites even when the site-specific risk is negligible and can they be overcome?
  4. The Future of Treatment Technologies. The intractable nature of subsurface contamination suggests the need to discourage future contaminant releases, encourage the use of innovative and multiple technologies, modify remedies when new information becomes available, and clean up sites sustainably. What progress has been made in these areas and what additional research is needed?
  5. Better Decision Making. Can adaptive site management lead to better decisions about how to spend limited resources while taking into consideration the concerns of stakeholders? Should life cycle assessment become a standard component of the decision process? How can a greater understanding of the limited current (but not necessarily future) potential to restore groundwater be communicated to the public?

"The central theme of this report is how the nation should deal with those sites where residual contamination will remain above levels needed to achieve restoration," Michael Kavanaugh, chair of the committee that wrote the report and a principal with Geosyntec Consultants in Oakland, CA, stated. "In the opinion of the committee, this finding needs to inform decision making at these complex sites, including a more comprehensive use of risk assessment methods, and support for a national research and development program that leads to innovative tools to ensure protectiveness where residual contamination persists. In all cases, the final end state of these sites has to be protective of human health and the environment consistent with the existing legal framework, but a more rapid transition will reduce life-cycle costs. Some residual contamination will persist at these sites and future national strategies need to account for this fact."

The committee said that if a remedy at a site reaches a point where continuing expenditures bring little or no reduction of risk prior to attaining drinking water standards, a reevaluation of the future approach to cleaning up the site, called a transition assessment, should occur. The committee concluded that cost savings are anticipated from timelier implementation of the transition assessment process but funding will still be needed to maintain long-term management at these complex sites.

The report is available at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=14668.

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

October 30, 2012 Important Environmental Compliance Considerations In The Wake Of Hurricane Sandy

By Steven M. Siros and Allison A. Torrence

As Hurricane Sandy sweeps across the Eastern Seaboard, the images of its destructive power are humbling. As everyone begins to dig out from the damage caused by the storm, it is important to remember the environmental lessons learned from past storms and natural disasters. Inevitably, environmental issues will be a serious concern after Hurricane Sandy has run its course. As facilities move forward with the task of attempting to resume normal operations, there are a number of environmental issues that should be considered.

Releases of Hazardous Substances and Oil Spills

U.S. EPA requires releases of hazardous substances at or above specified "Superfund Reportable Quantities" ("RQs") to be reported to federal authorities. Releases of certain extremely hazardous substances above a RQ trigger reporting requirements to state and local authorities, as well as to the federal authorities. Additionally, some state and local governments require notification for any size release of hazardous substances. According to U.S. EPA, reporting is required even if the release occurred only as a result of a hurricane or other natural event.

After notification, cleanup of the hazardous substances will likely be required. Although an "Act of God" may be a defense to certain cleanup liability under CERCLA, U.S. EPA has taken an aggressive position in the past, arguing that past hurricanes did not trigger this defense.

Oil spills are also a significant concern when there is heavy rain and flooding. Facilities with Spill Prevention, Control and Countermeasure ("SPCC") Plans will need to ensure that secondary containment for aboveground storage tanks is maintained after the storm. Any oil spill that creates a visible sheen on navigable waters or adjoining shorelines must be reported to the federal government. There is no "Act of God" defense under the federal oil spill laws.

Here are some helpful links to U.S. EPA's websites that provide further guidance on hazardous substances and oil spill reporting:

http://www.epa.gov/oem/content/reporting/index.htm (Information On How To Report Releases of Hazardous Substances or Petroleum Products)

http://www.epa.gov/oem/content/epcra/serc_contacts.htm (List of State Emergency Response Contacts)

http://www.epa.gov/region4/r4_hurricanereleases.html (Information on Emergency Operating Procedures)

Wastewater Discharges

Wastewater treatment systems can overflow during and after significant rain events, such as a hurricane. These types of overflows can violate the operator's license and other regulatory requirements unless proper care is taken during and after the rain event. Operators must provide immediate notification (typically to the State regulators) of overflows caused by the severe rain event in order to preserve available defenses the operator may have for the overflow.

Stormwater Management

Many facilities are covered by a site-specific or regional stormwater management permit, requiring structural Best Management Practices ("BMPs") to prevent excess stormwater runoff. Failure of BMPs, such as silt fencing and retention basins, can cause violations and result in penalties. Following significant storms such as Hurricane Sandy, it is important that structural BMPs be inspected to ensure that they continue to function as intended.

Air Emissions

Most air permits provide exceptions for "malfunctions" that may be caused by storms or other uncontrollable events. Any excess emissions caused by such a malfunction should be carefully documented to support the malfunction defense. Additionally, many facilities have air permits that regulate the use of emergency generators, usually by providing limits on the total hours the emergency generators can be in operation. Therefore, care should be taken to record the total time any emergency or backup generators are used to ensure that any applicable regulatory limits are not exceeded.

Insurance Claims

Hurricane Sandy has left behind significant property damage and business interuptions, which may be covered under an owner's insurance policy. Insurance coverage will depend on the terms of each insurance policy, and the specific circumstances leading to the loss. When potential property damage or business interuption is identified, the owner should provide prompt notice to its insurer and document the loss to the extent possible.

For more information about potential environmental impacts from Hurricane Sandy, visit U.S. EPA's hurricane webpage: http://www.epa.gov/hurricanes/

For information concerning U.S EPA's response to the damage caused by Hurricane Katrina, visit U.S. EPA Region 4's webpage: http://www.epa.gov/region4/Katrina/

CATEGORIES: Air, Cercla, Hazmat, Toxic Tort, TSCA, Water

October 26, 2012 Perchlorate Panel Teleconferences Scheduled In December

Grayson_Lynn_COLORBy E. Lynn Grayson

 

The Science Advisory Board's (SAB) advisory panel on perchlorate has scheduled two teleconferences to discuss its draft report on EPA's white paper addressing recent epidemiological evidence on perchlorate. Perchlorate is both naturally occurring and commercially manufactured and is used in explosives, fireworks, rocket fuel and for other industrial purposes. Perchlorate often is a contaminant of concern at sites undergoing investigation and cleanup.

The teleconferences are scheduled for December 5th and December 7th from 2:00-5:00 ET each day. To listen to these teleconferences, contact Thomas Carpenter at 202-564-8885.

The draft SAB Perchlorate Advisory Report is available at http://tinyurl.com/9ylu7rm.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort

October 17, 2012 State Pesticide Regulators Question Whether Use Of Biocides In Fracking Fluids Violates FIFRA

Siros_Steven_COLORBy Steven M. Siros

 

An association of state pesticide regulators recently raised an issue as to whether the use of certain biocides in hydraulic fracturing fluids are in violation of FIFRA. Biocides are commonly used in hydraulic fracturing fluids to control bacterial growth. According to recent comments by Jeff Comstock, the president-elect of the Association of American Pesticide Control Officials ("AAPCO"), association members have asked U.S. EPA's Antimicrobials Division whether the use of these biocides in fracturing fluids is regulated under FIFRA. According to Mr. Comstock, the use of biocides in fracturing fluids would appear to constitute a "pesticide use application" and drilling companies are mixing some industrial grade compounds into fracturing fluids to serve as biocides without those compounds being technically labeled for such use. Although fracturing fluids are generally exempted from some environmental laws, there are not any exemptions contained in FIFRA.  Certain biocides such as glutaraldehyde have already been approved under FIFRA for use as a biocide in fracturing wells.  According to the AAPCO, other materials listed as being used as biocides in fracturing fluids have not similarly been approved under FIFRA.  U.S. EPA has been invited to speak on this issue at a future AAPCO meeting.

CATEGORIES: Hazmat, Toxic Tort, TSCA, Water

October 10, 2012 Section 113 Or 107? Supreme Court Declines To Clarify CERCLA Cost Recovery Options.

Torrence_Allison_COLORBy Allison A. Torrence

 

Ever since the U.S. Supreme Court decided United States v. Atlantic Research Corp. in 2007, CERCLA PRPs and courts have been struggling with a crucial question: Whether parties subject to a consent decree may file claims for cost recovery under §107(a) of CERCLA, or whether their remedies are limited to filing claims for contribution under §113(f) of CERCLA. On October 9, 2012, the Supreme Court declined the opportunity to clarify that question when it denied cert in the appeal of the 11th Circuit's opinion in Solutia Inc. v. McWane Inc., 672 F.3d 1230 (11th Cir. 2012).

In United States v. Atlantic Research Corp., 551 U.S. 128 (2007), the Supreme Court held that §107 of CERCLA provides PRPs with a cause of action to recover costs incurred in cleaning up contaminated sites from other PRPs. However, the Supreme Court explicitly left open the question of whether a PRP can recover costs under §107 if the PRP incurred those costs subject to a consent decree with the government. Id. at 139 n.6 ("we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under §106 or §107(a). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under §113(f), §107(a), or both.").

In the Solutia case, the 11th Circuit ruled that a PRP who has incurred cleanup costs pursuant to a consent decree cannot obtain cost recovery under §107, and is instead left with only a contribution claim under §113. 672 F.3d at 1237. As the 11th Circuit explained in its opinion, the majority of courts that have addressed this issue have held that §113 provides the exclusive remedy for a PRP compelled to incur response costs pursuant to a consent decree. See Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir. 2010).

Uncertainty remains, however, due to inconsistent rulings on this issue, primarily in federal district courts. For example, district courts in Illinois, New York, and Michigan have allowed §107 claims to proceed despite the presence of a consent decree compelling cleanup. See, e.g., United States v. Pharmacia Corp., 713 F.Supp.2d 785, 791 (S.D. Ill. 2010); New York v. Solvent Chem. Co., 685 F.Supp.2d 357, 425-28 (E.D.N.Y. 2010); Ford Motor Co. v. Michigan Consol. Gas. Co., No. 08-CV-13503, 2009 WL 3190418, at *6-8 (E.D. Mich. Sept. 29, 2009).

PRPs who have entered into a consent decree and then seek recovery of their cleanup costs are still left with the decision of what type of CERCLA claim to pursue. Without clarification of these issues from the Supreme Court, PRPs will likely continue to pursue claims under both §107 and §113, leaving it to each individual court to decide the validity of the CERCLA claims.

CATEGORIES: Cercla, RCRA, Toxic Tort, Water

October 8, 2012 Navy Shipbuilders Avoid Asbestos Product Liability Claims

Siros_Steven_COLORBy Steven M. Siros

 

On October 3, 2012, the United States District Court for the Eastern District of Pennsylvania decided two questions of first impression under maritime law: (1) does maritime law recognize the sophisticated user and/or sophisticated purchaser defenses and (2) is a Navy ship a "product" for purposes of strict product liability law? The plaintiff was a welder who claimed that he was exposed to asbestos aboard various Navy ships during the 1960s and 1970s. He brought both negligence and strict product liability claims alleging that the defendants (Navy shipbuilders) had failed to warn him of the hazards of asbestos in the Navy ships.

The court first evaluated the application of the sophisticated user/purchaser defenses. After considering the policy objectives of maritime law, the court found the sophisticated purchaser defense to be unavailable for asbestos claims under maritime law. The court was concerned that application of the sophisticated purchaser defense would have the effect of leaving all Navy personnel without a remedy since Navy personnel are already precluded from recovering from the United States government for their asbestos-related injuries. With respect to the sophisticated user defense, however, the court noted that recognition of this defense under maritime law would serve to "encourage participation in maritime commerce by limiting—in a reasoned manner—potential liability of those involved in such commerce while continuing to protect those sea workers in need of protection (i.e., those workers who are not sophisticated as to the hazards to which their work exposes them)." The court therefore found the sophisticated user defense to be applicable to negligence claims under maritime law.

Relying on the Restatement (Second) of Torts, the court limited the applicability of the sophisticated user defense to negligence claims and found that the defense was not a bar to plaintiff's strict liability claims. The court therefore proceeded to evaluate whether the Navy ship is a "product" for purposes of strict product liability under maritime law. The court found that as between a shipbuilder and the manufacturer of the various products within the ship, the entities best able to protect sea-bound workers and to bear the burden of preventing harm to these workers are the manufacturers of the various products aboard the ship. The court was concerned that to place upon a Navy shipbuilder potential liability for the tens of thousands of products assembled in a Navy ship pursuant to Navy specifications would "be an undue, unmanageable, and cumulative burden likely to discourage the activity of shipbuilding." The court therefore found that the Navy ship was not a "product" within the meaning of maritime strict product liability law.

To view a copy of the court's order in Mack v. General Electric Company et al., please click here.

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

October 1, 2012 New Litigation Filed Over Spent Lead Ammunition On Public Lands

Grayson_Lynn_COLORBy E. Lynn Grayson

 

The Center for Biological Diversity, the Sierra Club and the Grand Canyon Wildlands Council have filed a complaint against the U.S. Forest Service to limit the disposal of spent lead ammunition. Filed before the U.S. District Court for the District of Arizona, the plaintiffs seek to protect wildlife species threatened by exposure to spent lead ammunition in their foraging range on federal land in Arizona, including the Kaibab National Forest.

The complaint alleges that the California condor and other species are particularly susceptible to lead poisoning caused by the ingestion of spent ammunition. The complaint also charges that the U.S. Forest Service has the authority to prohibit or otherwise regulate the use of lead ammunition but has elected not to do so.

According to the plaintiffs, the spent lead ammunition disposed of on public lands presents an imminent and substantial endangerment to health or the environment and the threat is ongoing. Under the Resource Conservation and Recovery Act, the complaint seeks declaratory or injunctive relief to stop continued endangerment to wildlife species occurring within the Kaibab National Forest. The U.S. Forest Service has 60 days to file an answer or otherwise respond to the complaint.

More information about the lawsuit and potential lead contamination concerns on public lands is available at http://www.biologicaldiversity.org/.

CATEGORIES: Cercla, RCRA, Toxic Tort

September 21, 2012 EPA Issues SNURs for 107 Chemicals

Siros_Steven_COLORBy Steven M. Siros

 

The United States Environmental Protection Agency ("U.S. EPA") is expected to issue a direct final rule imposing significant new use rules ("SNURs") on 107 chemicals pursuant to Section 5(e) of the Toxic Substances Control Act ("TSCA"). The direct final rule is scheduled to take effect November 20, 2012. Although U.S. EPA has already allowed these 107 chemicals to go into production, the chemicals are subject to protective measures either through a TSCA 5(e) consent orders or as part of the pre-manufacturing notices filed by the manufacturers. Any manufacture or use of one of these 107 chemicals that does not adopt these pre-existing protective measures would be considered a "new use" which would require that advance manufacture or use notification be provided to U.S. EPA. To see a copy of the Federal Register notice, please click here.

This most recent U.S. EPA action is consistent with U.S. EPA's ongoing efforts to more aggressively exercise its TSCA authority. Notwithstanding that TSCA reform seems to be stalled in Congress, in 2012, U.S. EPA has already issued SNURs for over 250 chemicals (including the 107 chemicals that are the subject of this direct final rule) and is aggressively moving forward with its TSCA Work Plan chemical assessments.

 

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

PEOPLE: Steven M. Siros

September 17, 2012 Sequestration To Cut $716 Million From U.S. EPA Budget

Siros_Steven_COLORBy Steven M. Siros

 

If budget sequestration takes effect on January 2, 2013, U.S. EPA will face a $716 million budget cut.  According to a September 14, 2012 report from the White House Office of Management and Budget ("OMB"), U.S. EPA's budget would be reduced from approximately $8.4 billion to $7.7 billion. The OMB report projects that the Superfund program would face cuts of approximately $122 million; state and tribal assistance grants would be cut by approximately $293 million; and U.S. EPA's program account would be cut by approximately $220 million. The OMB report goes on to acknowledge that these cuts would degrade U.S. EPA's "ability to protect the water we drink and the air we breathe" and encourages Congress to act to prevent these cuts from being triggered. According to an U.S. EPA official, U.S. EPA is developing its 2014 fiscal year budget without accounting for these significant budget cuts. To see a copy of the OMB report, please click here.  

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

September 6, 2012 September 11th CBA and ISBA Environmental Networking Reception

Torrence_Allison_COLORBy Allison A. Torrence

 

The Chicago Bar Association (CBA) Environmental Law Committee, the CBA Young Lawyers Section Environmental Law Committee, and the Illinois State Bar Association (ISBA) Environmental Law Section are hosting an Environmental Networking Reception on September 11, 2012, from 4 pm to 6 pm. The networking reception will be held at the Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois.

Jenner & Block attorney and co-chair of the CBA Young Lawyers Section Environmental Law Committee, Allison A. Torrence, will make brief remarks at the reception along with other representatives from the CBA and ISBA.

If you would like to attend, please RSVP by September 7, 2012, to Dave Scriven-Young at dscriven-young@pecklaw.com.

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

PEOPLE: Allison A. Torrence

September 4, 2012 Perchlorate In Drinking Water – September 20th Public Meeting

Grayson_Lynn_COLORBy E. Lynn Grayson

 

EPA will hold a public meeting and webcast September 20, 2012 on the regulation of perchlorate in drinking water. EPA plans to address information on treatment technologies, analytical methods, and other subjects pertaining to the development of a perchlorate standard. The meeting and webcast are scheduled for 1-4 p.m. Eastern Time at EPA, Potomac Yards South, 2777 South Crystal Drive, Arlington, VA 22202. More information on the meeting is available from Russ Perkinson of EPA at (202) 564-4901 or perkinson.russ@epa.gov. To attend the meeting in person, parties must register by 5 p.m. September 17, 2012 by contacting Junie Percy of IntelliTech at junie.percy@itsysteminc.com or (937) 427-4148, extension 210. Those wishing to participate in the webcast must register in advance at https://www3.gotomeeting.com/register/369407742.

CATEGORIES: Cercla, RCRA, Toxic Tort, Water