Jenner & Block

Corporate Environmental Lawyer Blog

August 29, 2012 ABA 2012 Blawg 100 – We Need Your Nominations!

By E. Lynn Grayson and Steven M. Siros

Thank you very much for your support of our blog – Corporate Environmental Lawyer – over the past two years. After 300 postings, we hope that you find the information on the blog to be helpful and informative. Every year, the American Bar Association publishes a list of the top 100 legal blogs (or blawgs). If you enjoy reading our blog, we would appreciate your help in nominating our Corporate Environmental Lawyer for the 2012 ABA Blawg 100. The nomination process is simple, takes less than five minutes and can be accessed by clicking on this link.  Our URL is http://environblog.jenner.com/.

The nomination deadline is Friday, September 7, 2012. Thank you for considering our request.

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

August 6, 2012 Will New TCE And PCE Risk Values Make It Harder For Sites to Be Listed On The NPL?

Siros_Steven_COLORBy Steven M. Siros

 

Recent changes to U.S. EPA risk values for trichloroethylene (TCE) and perchloroethyle (PCE) have raised the bar for listing sites contaminated with these constituents on the NPL.  These new risk values are weaker than values that U.S. EPA had previously used to score hazardous waste sites. The new risk values are now reflected in U.S. EPA's Superfund Chemical Data Matrix (SCDM). The toxicity factor for TCE dropped from 10,000 to 1,000 and the TCE drinking water benchmark value changed from .21 ug/l to 1.0 ug/l. For PCE, the cancer risk level increased by a factor 20.

The effect of these revised values on the site scoring process can be dramatic. For example, U.S. EPA recently rescored a site in Leeds, Maine using the new values and the score dropped from 50 to 32.92 (the site was still eligible for listing since the listing threshold is 28.5). However, under the old system, 17 residents were documented to be drinking contaminated water from several wells; based on the new scoring, only two wells were above the threshold. 

Please click here to go to the SCDM website for further information on the recent changes to U.S. EPA's NPL scoring matrix.

CATEGORIES: Cercla, RCRA, Toxic Tort, Water

July 18, 2012 Top 10 Corporate Environmental Concerns

By E. Lynn Grayson and Katherine M. Rahill

On July 18, 2012, Jenner & Block Partners, E. Lynn Grayson and Katherine M. Rahill published a guest column in Law360 discussing new and emerging environmental issues important to in-house counsel.  These issues include:

  1. Lack of Government Resources/Insufficient Funding
  2. Superfund/UAOs
  3. Environmental Disclosures
  4. Corporate Environmental Responsibility
  5. Water Scarcity
  6. Memoranda of Understanding (MOUs)
  7. Financial Assurance
  8. Soil Vapor Intrusion
  9. EPA Toxicological Reviews
  10. Improvements in Technology

Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at lgrayson@jenner.com and krahill@jenner.com.  More information is available at www.jenner.com.

To access the full article, please click here.

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

July 18, 2012 FDA Announces Ban on BPA in Bottles and Sippy Cups

By Katherine Rahill

On July 17, 2012, the U.S. Food and Drug Administration (“FDA”) issued a final rule amending its food additive regulations to ban the use of polycarbonate resins in baby bottles and sippy cups.  Bisphenol A (“BPA”) is a key component of polycarbonate resins.  The ban is in response to a petition by the American Chemistry Council seeking an amendment to food additive regulations to no longer allow for the use of BPA-based resins in these products. FDA’s regulations allow for a petitioner to seek an amendment to the food additive rules based on a number of rationales including the development of new uses, the abandonment of old uses, or new information as to toxicity of a chemical.   Interestingly, the basis for the petition, and the FDA’s final rule, is the abandonment of the use of BPA-based resins in these applications and not concerns about the safety of BPA-based resins in these products or food storage generally.  The FDA’s February 17, 2012 proposed rule (77 FR 9608) expressly stated that the FDA would not consider comments regarding the safety of BPA-based resins for food storage and that the FDA was reviewing the safety of BPA separate from the petition.  According to the final rule, the petition cited a poll of BPA-based resin manufacturers in which the manufacturers stated that they were no longer selling these resins to manufacturers of baby bottles and sippy cups used in the United States as evidence of such abandonment.  In granting the petition and issuing the final rule, the FDA found that information provided in the petition and available from other sources demonstrated that the use of BPA-based resins in the manufacture of baby bottles and sippy cups has been “completely and permanently abandoned.” 77 Fed. Reg. 41899, at 41901.  According to a press release issued by the American Chemistry Council, this amendment will clear up confusion and provide certainty to consumers that BPA is not contained in baby bottles and sippy cups.

The issuance of the final rule banning the use of BPA-based resins in baby bottles and sippy cups came on the same day the FDA announced the filing of a petition by Representative Edward Markey (D-Mass) seeking the banning of BPA-based epoxy resins in coatings used in packaging infant formula.  Similarly, this petition is also based on abandonment.  As a result, the FDA requested comment only on whether this use of BPA resins has been completely abandoned and whether the use has been adequately defined.  The notice expressly states that any comments regarding the safety of BPA-based resins will not be considered. 

A copy of the final rule can be found here.  A copy of the notice of petition can be found here.

CATEGORIES: Hazmat, Sustainability, Toxic Tort, TSCA

July 11, 2012 The Latest EPA Criminal Enforcement Statistics

Graham_Robert_COLORBy Robert L. Graham

 

In fiscal year 2011, EPA's criminal enforcement program exceeded 2010 outcomes for new environmental crime investigations opened and the total level of incarceration, as shown by the chart below.

FY2011

As the chart shows, 371 environmental crime cases were opened in 2011—a 7% increase from 2010. But there was also a decrease in the number of defendants charged (217 individuals and 32 companies)—a 14% decrease from the prior year. This resulted in a total of 89.5 years of incarceration and $35 million in fines and restitution.

Although these criminal enforcement statistics from the EPA provide a quantitative picture of criminal enforcement results, they provide little insight into perhaps the more substantive question—whether the quality of justice resulting from environmental criminal enforcement has improved. Though useful, the bean counting of cases opened and criminal sanctions imposed does not necessarily measure true environmental progress.

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

June 18, 2012 Environmental Groups Oppose Spent Lead Bullets And Shot

Grayson_Lynn_COLORBy E. Lynn Grayson

 

Environmental groups recently filed suit against EPA for failure to act on a March petition aimed at the elimination of lead from bullets and shot advocates charge are harming wildlife. (Trumpeter Swan Society v. EPA, D.D.C., docket number not available, 6/07/12). The seven groups filing suit on June 7th included: The Trumpeter Swan Society, Cascades Raptor Center, Center for Biological Diversity, Loon Lake Loon Association, Preserve Our Wildlife Organization, Tennessee Ornithological Society, and Western Nebraska Resources Council. Plaintiffs allege two causes of action against EPA:

  1. Violation of APA because EPA's decision that the petition was not cognizable under TSCA was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
  2. Violation of TSCA (15 U.S.C. §2620(4)(B)(ii) because EPA had a reasonable basis to conclude that the issuance of a rule or order is necessary to protect health or the environment against an unreasonable risk of injury from lead exposure.

Environmental groups originally petitioned EPA in August 2010 seeking to ban lead shots, bullets and fishing sinkers. In March of this year, a larger group of environmental organizations petitioned EPA to initiate rulemaking under TSCA to address the unreasonable risks posed by lead bullets and shot. In April 2012, EPA advised it would not initiate the requested rulemaking and confirmed its prior actions in connection with the August 2010 petition.

TSCA grants the EPA the broad authority to regulate chemical substances that "present an unreasonable risk of injury to health or the environment." 15 U.S.C. §2601. The EPA may regulate the manufacture, processing, distribution, use or disposal of such chemical substances. The EPA has already declared that lead is a toxic substance, and although it has implemented some regulations to reduce lead exposure, lead still remains widely distributed in the environment in the form of spent lead bullets and shot and regularly encountered by wildlife leading to harmful lead exposure.

EPA has removed nearly all products containing lead from the market. Most other uses of lead, such as lead-based paints, plumbing pipe and fixtures, and leaded gasoline, are already subject to strict regulation. Plaintiffs allege that EPA's failure to address lead in bullets and shot adversely impacts wildlife as well as poses unacceptable exposure risks to humans.

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

May 29, 2012 U.S. Court of Appeals Mandates Decision on Act of War Defense to WTC CERCLA Claims

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

The U.S. Court of Appeals for the Second Circuit has issued a mandate to the U.S. District Court for the Southern District of New York, requiring the lower court to determine whether contamination from the collapse of the World Trade Center buildings are subject to the "act of war" affirmative defense from liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In re Sept. 11th Litigation: Cedar & Washington Assoc. LLC v. Port Authority of New York and New Jersey, No. 10-CV-9197 (U.S. Dist. Ct. S.D. N.Y. May 23, 2012).

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort

May 8, 2012 U.S. EPA Releases 2012 IRIS Agenda

Siros_Steven_COLORBy Steven M. Siros

 

On May 7, 2012, U.S. EPA announced its 2012 Integrated Risk Information System ("IRIS") agenda which adds seven new chemicals to the IRIS program while withdrawing four chemicals from the program.  The new IRIS chemicals are chlorobenzene, decamethylcyclopentasiloxane, octamethylcyclotetrasiloxane, element mercury, methyl mercury, vanadium, and 1,2,3-trimethylbenzene.  The four withdrawn chemicals are alkylates, bisphenol A, mirex and refractory ceramic fibers.  There are now a total of 51 chemicals on the IRIS evaluation list.   U.S. EPA intends to have have initiated the assessment process for all 51 chemicals by fiscal 2014.  Click here to go to U.S. EPA's IRIS website.

CATEGORIES: Hazmat, Toxic Tort, TSCA

April 20, 2012 2012 Environmental Health Webinars Announced By NIEHS

Grayson_Lynn_COLORBy E. Lynn Grayson

 

The National Institute for Environmental Health Sciences (NIEHS) Partnerships in Environmental Public Health (PEPH) has initiated an environmental health and education webinar series. The webinars will strive to promote interactions among PEPH grantees, and increase awareness of emerging issues and approaches in environmental public health. The PEPH umbrella unites researchers in basic and clinical research, community-based participatory research, education, outreach, and environmental justice in the pursuit of improved public health.

The first webinar conducted earlier this year focused on the theme of connecting environmental exposures to chronic inflammation and diseases. Topics included: 1) How Is the Immune System Involved in Inflammation; 2) Air Pollution Morbidity: Confounding Effects of Chronic Inflammation; and, 3) Inflammation and Effects of Chronic Disease. The most recent webinar focused on the health implications of arsenic in our food system.

Upcoming seminars include the following:

  • April/May: Mapping and Environmental Public Health: Visualizing Health Disparities and the Effects of Pollution
  • May: Health Impact Assessments and Community Engagement
  • June: Science-based Decision Making
  • July: Hydraulic Fracturing

The PEPH webinars are free and open to the public, but pre-registration is required. Registration information is available in advance of each webinar at http://www.niehs.nih.gov/index.cfm or by contacting the Office of Communications and Public Liaison at 919-541-3345.

The PEPH webinar series provides easy access to up to date research on the interplay between environmental impacts and public health concerns.

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

March 22, 2012 New Report Links Fracking To Potential Health Issues

Siros_Steven_COLORBy Steven M. Siros

 

A recent study by the Colorado School of Public Health has linked hydraulic fracturing to elevated levels of petroleum hydrocarbons in the air near drilling sites.  The study, to be published in Science of the Total Environment, identified cancer and non-cancer impacts to residents living within a half-mile of drilling sites in Garfield County, Colorado.  According to a press release issued by the University of Colorado, the researchers apparently found the greatest impact to be during the "relatively short-term, but high emission, well completion period."  The researchers relied upon ambient air sample data from monitoring stations in the vicinity of the drilling sites in reaching their conclusions.  What is unclear, however, is whether the elevated emissions are attributable to releases from the wells themselves or from emissions associated with the well drilling equipment and associated vehicle traffic.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, Toxic Tort, Water

March 15, 2012 U.S. EPA Considering Limiting Self-Disclosure Incentives

Siros_Steven_COLORBy Steven M. Siros

 

Under U.S. EPA's current audit policy, companies that self-disclose environmental violations may be entitled to the elimination or reduction of penalties for non-compliance.  However, U.S. EPA recently announced that it is considering limiting the benefits that companies can receive for voluntarily self-disclosing environmental violations. 

According to U.S. EPA, in fiscal year 2011, self-disclosures only resulted in the reduction of 3,000 pounds of pollutants as compared to 1.8 billion pounds in pollutant reduction achieved through other enforcement mechanisms.  U.S. EPA also commented that these self-disclosures are not being made in high-priority enforcement areas.  For example, 54 percent of the disclosures made from fiscal year 1999 through 2011 were made under the Emergency Planning and Community Right to Know Act.   U.S. EPA's recently issued draft National Program Manager Guidance provides that U.S. EPA intends to focus its enforcement priorities on pollution that poses the greatest threats to public health and the environment, such as emissions from coal fired power plants.  The draft guidance questions whether U.S. EPA's self-disclosure program has been effective in reducing high-threat pollutants.

Notwithstanding U.S. EPA's skepticism, it should be noted that the volume of pollution reduced through self-disclosures in 2011 may be an anomaly.  For example, in 2009, 22.9 million pounds of pollutants were reduced through self-disclosures out of a total pollutant reduction of 580 million pounds.  Moreover, even U.S. EPA has acknowledged that it continues to receive large numbers of self-disclosures each year which should enable U.S. EPA to better focus its enforcement priorities on what it deems high-threat pollution. 

 U.S. EPA has not provided specific details concerning what changes it might be contemplating with respect to the audit policy's self-disclosure incentives but we will continue to track this issue. 

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

February 24, 2012 Removal Pitfalls: Toxic Tort Case Remanded Back To State Court

Siros_Steven_COLORBy Steven M. Siros

 

A recent federal court decision out of the Northern District of Ohio illustrates the importance of carefully evaluating when the 30-day deadline for filing a removal petition begins to run.  In Tolloty et al. v. Republic Services, Inc. et al., plaintiffs sued defendants in Ohio state court seeking damages for illnesses allegedly caused by exposure to toxic chemicals from a landfill owned and operated by defendants.  Of the four defendants sued, only one of the defendants was incorporated in Ohio. 

During a deposition of one of the defendant's corporate witnesses, evidence came to light that the Ohio defendant-corporation had not been in existence at the time of plaintiffs' alleged injuries; rather, another corporation with the same name (but incorporated in Delaware) had owned and operated the landfill at that time.  Following the deposition, defendants sent a letter to plaintiffs' counsel asking them to dismiss the Ohio corporation from the litigation; plaintiffs refused.  Within 30 days of receipt of that letter, defendants removed the case to federal court, asserting that the federal court had diversity jurisdiction over the matter since none of the defendants were incorporated or domiciled in Ohio (with the exception of the Ohio defendant-corporation that defendants alleged was fraudulently joined to defeat diversity).  Plaintiffs moved to remand the case back to state court on the basis that more than 30 days had passed since the date that defendants received the transcript of the deposition during which the testimony concerning the Delaware corporation had come to light.  In response, defendants argued that the 30-day clock should not have commenced until such time as plaintiffs refused to dismiss the Ohio defendant-corporation from the litigation.

In considering plaintiffs' request to remand the case, the court noted that a "defendant seeking removal must strictly comply with the timing requirements of 28 U.S.C. §1446(b)."  All ambiguity regarding the scope of §1446(b) should be resolved in favor of remand to the state courts.  Here, defendants' removal petition was filed more than 90 days after defendants received the deposition transcript.  Defendants could point to no operative facts or additional evidence relevant to the issue of fraudulent joinder that became known to them subsequent to the deposition at issue.  The court rejected defendants' argument that until such time as the plaintiffs refused to dismiss the Ohio defendant-corporation, their removal petition was not ripe.  Finally, in what was likely the final nail in defendants' removal coffin, the court noted that even before the deposition at issue, defendants should have been on notice of the underlying facts that they rely upon to make their fraudulent joinder argument.  The court therefore granted plaintiffs' motion to remand the case back to state court.  To see a copy of the opinion, please click here.

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

February 21, 2012 E. Lynn Grayson And Katherine M. Rahill Speak At CBA Corporate Law Department's Committee Meeting

By E. Lynn Grayson and Katherine M. Rahill

E. Lynn Grayson and Katherine M. Rahill will speak at the CBA Corporate Law Department's Committee Meeting this Wednesday, February 22, 2012 at noon. Their presentation titled "2012 Outlook: Corporate Environmental Concerns" will address new and emerging environmental issues important to in-house counsel. These issues will include:

  • Lack of Government Resources/Insufficient Funding
  • Superfund/UAOs
  • Environmental Disclosures
  • Corporate Environmental Responsibility
  • Water Scarcity
  • Memoranda of Understanding (MOUs)
  • Financial Assurance
  • Soil Vapor Intrusion
  • EPA Toxicological Reviews
  • Improved/New Technology

Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at lgrayson@jenner.com and krahill@jenner.com. More information is available at www.jenner.com.

CATEGORIES: Cercla, Climate Change, Hazmat, Sustainability, Toxic Tort, Water

January 30, 2012 New Chemicals Proposed for Addition to California’s Proposition 65 List

By Katherine M. Rahill

In December and January, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment ("OEHHA") announced its intent to add seven new chemicals to the Proposition 65 chemicals list:

  • Kresoxim-methyl
  • Tetraconazole
  • Methyl isopropyl ketone
  • Benzophenone
  • Coconut oil diethanolamine condensate
  • Diethanolamine
  • 2-Methylimidazole

 The Safe Drinking Water and Toxic Enforcement Act of 1986, otherwise known as Proposition 65, requires the State of California to publish a list of chemicals determined by the State to cause cancer or reproductive toxicity.  There are four mechanisms by which a chemical can be determined to cause cancer or reproductive toxicity sufficient to require listing: (1) either the Carcinogen Identification Committee or the Developmental and Reproductive Toxicant Identification Committee, independent committees of scientists and health professionals that are part of OEHHA's Science Advisory Board, make a determination that there is sufficient evidence that the chemical causes cancer or reproductive impacts; (2) an authoritative body such as the International Agency for Research on Cancer, the National Toxicology Program, or the U.S. Environmental Protection Agency identifies the chemical as causing cancer or reproductive impacts; (3) a state or federal agency requires the chemical to be labeled as causing cancer or reproductive impacts; or (4) the chemical meets certain criteria and is identified in the either of two provisions of the California Labor Code as causing cancer or reproductive impacts.  The listing of a chemical generally imposes two obligations on businesses that use that chemical: (1) businesses must provide a warning before exposing anyone to a chemical on the Proposition 65 chemicals list; and (2) businesses must prevent the discharge of listed chemicals into sources of drinking water. 

 Of the seven chemicals for which OEHHA has published Notices of Intent to list in the last two months, five of the chemicals are being listed through the California Labor Code mechanism, four chemicals as a result of findings that the chemicals are carcinogenic (Benzophenone, Coconut oil diethanolamine condensate, Diethanolamine, and 2-Methylimidazole) and one chemical for evidence of developmental toxicity (Methyl isopropyl ketone).  The other two chemicals are proposed for listing through the authoritative body mechanism as a result of U.S. EPA studies concluding they are capable of causing cancer (Kresoxim-methyl and Tetraconazole).  A comment period was provided by OEHHA for the listing of these chemicals.  Once the comment periods have ended (some of which have expired already), OEHHA will then make a final determination and publish a revised Proposition 65 list, no sooner than 60 days after the publication of the Notices of Intent. 

In addition to the proposed addition of these seven chemicals to the Proposition 65 chemicals list, OEHHA also announced the selection of two chemicals (deltamethrin and xylene) for consideration by the Developmental and Reproductive Toxicant Identification Committee.  The Committee will undertake a review of existing scientific evidence regarding the potential for these two chemicals to cause reproductive impacts.  With the announcement of the selection of these chemicals, OEHHA requested the public provide information relevant to the Committee's review.

 OEHHA's Notices of Intent to list new chemicals can be found by clicking here and Requests for Information can be found by clicking here.

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