Aerospace And Refinery Air Toxics Data Requested
By E. Lynn Grayson
EPA recently sent information requests to 1,000 aerospace manufacturers and 152 petroleum refineries seeking toxic air emissions data. See 75 Fed. Reg. 59,710; 75 Fed. Reg. 60,107 (September 28-29, 2010). The purpose of these information requests is to determine whether future controls are needed to limit hazardous emissions. EPA must either promulgate additional standards against any residual risk or make an official determination that no further controls are necessary.
Fifth Circuit Limits Scope of CERCLA's "Arranger" Liability
By James A. Vroman
In Celanese Corporation v. Martin K. Eby Construction Company Inc., the Fifth Circuit Court of Appeals addressed the scope of "arranger" liability under CERCLA and affirmed the ruling of the district court that Defendant-Appellee Martin K. Eby Construction Company, Inc. was not liable as an "arranger" under CERCLA for the remediation costs Celanese Corporation had incurred. In 1979, Eby Construction was installing an underground water pipeline for the Coastal Water Authority of Texas. A backhoe operator for Eby Construction, while excavating in an area that contained a Celanese pipeline that transported methanol, unknowingly struck and damaged the Celanese pipeline. Over the years, the damaged pipeline deteriorated and began to leak methanol. In 2001, Celanese discovered the leak and over the next seven years removed and disposed of over 230,000 gallons of methanol.
EPA Seeks Public Comments On The Waste Classification Of Coal Ash
By E. Lynn Grayson
Earlier this summer, EPA proposed to regulate coal ash for the first time to address the risks from the disposal of such wastes generated by electric utilities and independent power producers. 75 Fed. Reg. 35127 (June 21, 2010). Coal ash currently is exempt under RCRA but there are growing concerns about the environmental impacts of coal ash in landfills and surface impoundments following the December 2008 coal ash spill from the TVA's plant in Kingston, TN that flooded over 300 acres with coal combustion residuals.
EPA Seeks Data About Hydraulic Fracturing
By E. Lynn Grayson
EPA plans to study the potential health concerns associated with the use of hydraulic fracturing to free up natural gas deposits. EPA has sent an information request to the nine leading hydraulic fracturing service providers seeking more detail about their business practices, including the names of the chemicals they use.
The information will be used to finalize a congressionally mandated study of the impact of hydraulic fracturing on drinking water supplies. While the information request is voluntary, EPA has asked the companies to advise the Agency within seven days on whether they intend to cooperate. If so, the response to the information request issued September 9th is due within 30 days of its receipt.
There are growing health-related concerns over the increased use of hydraulic fracturing – a technique employed by the oil and gas extraction companies to fracture underground rock formations and free up natural gas deposits. In such a process, various materials and hazardous substances are injected under high pressure to improve access to the natural gas deposits. There is evidence that such activities may contaminate drinking wells and other water supplies.
EPA expects to provide preliminary study findings in late 2012. The Agency's information request and additional information about hydraulic fracturing is available at http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing.
The U.S. EPA's Review of the Draft 2002 Subsurface Vapor Intrusion Guidance
By James A. Vroman
On August 30, 2010, the U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") published its "Review of the Draft 2002 Subsurface Vapor Intrusion Guidance." OSWER's Review of the Draft 2002 Guidance suggests that when OSWER finalizes the Draft 2002 Guidance, which it has promised will be done by November of 2012, the final version of the Guidance will present a more rigorous and comprehensive, and, thus, a more expensive, Soil Vapor Intrusion ("SVI") assessment process than the one presented in the Draft 2002 Guidance. For example, the Review advised that the EPA plans to include in the final version of the SVI Guidance, in addition to the list of chemicals that will trigger a SVI assessment, "chemical-specific characteristics" that will be used to identify chemicals of concern that may generate vapors. The EPA will also update the toxicity values of a number of the chemicals listed in Table 1 of the Draft 2002 Guidance. In addition to these changes to the Draft Guidance, OSWER noted that the SVI assessment process that will be presented in the final version of the SVI Guidance will recommend that the assessment evaluate multiple lines of evidence rather than a single line of external evidence such as soil-gas samples or externally collected groundwater samples. Consistent with this recommendation, the Review also noted that the final version of the Guidance will provide that the SVI assessment should expand its evaluation of SVI risks beyond single-family residential buildings to include other types of buildings such as non-residential and mixed-use buildings.
Tenth Circuit Overturns Rocky Flats Class Action Property Owner Award
By Katherine Rahill
On September 3, 2010, the Tenth Circuit reversed a lower court's decision to award over $926 million to a class of property owners near the former Rocky Flats Nuclear Weapons Plant, a facility that produced nuclear weapon components, northwest of Denver, Colorado. The class of property owners claims that the former plant's operations released plutonium particles onto their property, thereby contaminating their property, endangering their health and lowering their property values. The Tenth Circuit, however, held that the plaintiffs had not adequately established a sufficient level of injury. The federal appellate court has remanded the case to the District Court with instructions to vacate the judgment and conduct further proceedings consistent with the appellate opinion. While the decision clearly has implications for similar types of claims under the Price-Anderson Act, it also speaks to the levels of injury some courts may require in non-nuclear toxic tort actions where plaintiffs allege property damage or loss of use of their property through trespass and nuisance actions.
EPA's Failure To Regulate Lead Ammunition Challenged
By E. Lynn Grayson
The American Bird Conservancy (ABC), the Center for Biological Diversity (CBD) and other members of a diverse coalition of conservation, animal health and hunting groups have challenged the recent EPA decision to deny their petition to ban the use of lead as a component of hunting ammunition. Contrary to EPA's position, the groups contend that EPA has the authority to act under TSCA. EPA believes that the Agency does not have the authority due to an exclusion for such products in TSCA Section 3(2)(B)(v).
Following the denial of its petition, CBD has filed a Freedom of Information Act request with EPA seeking copies of all documents related to EPA's decision and also have requested a meeting with Agency management. ABC had decided to take administrative action to challenge the petition denial and also is considering other legal challenges.
National Conversation On Public Health And Chemical Exposures
By E. Lynn Grayson
The National Conversation on Public Health and Chemical Exposures is a collaborative project between the Centers for Disease Control (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR). The project's goal is to develop an action agenda with clear, achievable recommendations that can help government agencies and other organizations strengthen their efforts to protect the public from harmful chemical exposures.
The project's work is divided into six groups formed to research and make recommendations on cross-cutting public health and chemical exposure issues:
Policies and Practices
Education and Communication
Draft work group reports now are available at http://www.resolv.org/nationalconversation/ and comments will be accepted through September 20, 2010.
RESOLVE, a non-profit organization dedicated to advancing effective use of consensus building in public decision making, is collecting all comments. The work groups will consider all comments submitted in finalizing their reports. The National Conversation's Leadership Council will use the work group reports in developing the action agenda scheduled to be available for public review and comments in December, 2010.
EPA Proposes Modifications to TSCA's Inventory Update Reporting Rule
By James A. Vroman
On August 11, 2010, the U.S. EPA announced that it was publishing in the Federal Register proposed modifications to the Toxic Substance Control Act's "Inventory Update Reporting" rule. See, U.S. EPA's Press Release. TSCA's IUR rule, promulgated under TSCA's Section 8(a), authorizes the Agency to require manufacturers and importers of chemicals to submit to the Agency information on the manufacture, processing, production and use of chemicals on the TSCA Chemical Substance Inventory. The U.S. EPA uses the submitted information to assess and evaluate the risks the chemical poses to human health and the environment. The information the chemical manufacturer or importer submits under the IUR rule to the Agency is available to the public unless the manufacturer or importer classifies the information as "Confidential Business Information" (CBI). Much of the information that has been submitted to the U.S. EPA has been classified as CBI.
The proposed modifications to the IUR rule would require manufacturers and importers to submit the IUR rule information electronically, to provide data to the Agency on a chemical's use and processing not previously required, and to revise the standards under which a manufacturer or importer may classify the submitted information as CBI. See, Proposed Rule. The proposed modifications also include other changes to the IUR rule. The deadline to submit comments on the proposed modifications to the IUR rule is October 12, 2010.
New Nanotechnology Development Guidance
By James A. Vroman
The Massachusetts Office of Technical Assistance ("OTA") has recently posted its Guidance Document "Nanotechnology - Considerations for Safe Development." The OTA, in an effort to encourage the development of new technologies and to promote innovation and entrepreneurship, recently posted this guidance on its website. The OTA recognizes the vast innovative, economic and employment opportunities nanotechnology offers. At the same time, the Office acknowledges that the development, manufacture, distribution and disposal of nanoparticles may create substantial human health and environmental risks. Accordingly, the guidance offers those who are engaged, or about to be engaged, in the development, manufacture or distribution of nanoparticles, or products that will contain nanoparticles, advice and directions on such matters as risk reduction plans, worker safety programs, "preventive materials selection and process design," use and post-use disposition as well as on a number of other issues and considerations. The guidance also identifies a number of useful and informative resource materials on these issues.
Trafigura Fined $1.3M Over International Toxic Waste Dumping
By E. Lynn Grayson
The Dutch Supreme Court fined Trafigura Beheer, one of the world's largest companies trading commodities, $1.3M for delivering hazardous waste to Amsterdam while concealing the true nature of the wastes and exporting the wastes to Cote D'Ivoire for disposal. The high court described Trafigura's actions as the most serious offense possible under the European Union's waste shipment regulation prohibiting such exports to third-world countries. According to Amnesty International, the court's guilty verdict is the first time the company has been held criminally accountable for its involvement in the export of hazardous wastes to Cote D'Ivoire.
The case arises from the 2006 incident wherein Trafigura off-loaded waste from a ship in Amsterdam for disposal but for alleged cost considerations, reloaded and transported the waste to Cote D'Ivoire. In August, 2006, 408 tons of highly toxic petrochemical waste and caustic soda were dumped in various locations around the City of Abidjan. As a result, over 100,000 local residents sought medical attention for a range of health problems. Trafigura already has paid other settlements resulting from this 2006 incident including $197M to the Ivory Coast government and $47.8M to affected residents.
The Dutch case focused on events in the Netherlands highlighting to many observers the challenges of prosecuting companies for actions that cross borders. Amnesty International has met and worked with those impacted by the dumping and noted "there is an urgent need for the international community to learn the lessons from this incident. States must do more to ensure that multinationals respect human rights both at home and abroad." More information about this incident and the recent verdict can be obtained through Amnesty International at http://www.amnestyusa.org/.
U.S. Issues New Deepwater Drilling Suspension
By Rachel Loftspring
On July 12, Secretary of the Department of the Interior, Ken Salazar, issued a decision memorandum directing a new suspension of certain offshore drilling and permitting activity in the Gulf of Mexico and Pacific regions. This order was made pursuant to 30 C.F.R. § 250.172(b)-(c), which, in pertinent part, provides that suspensions may be ordered when activities “pose a threat of serious, irreparable, or immediate harm or damage” to human or animal “life . . ., property, any mineral deposit or the marine, coastal, or human environment” or “[w]hen necessary for the installation of safety or environmental protection equipment.”
U.S. Chemical Safety Board Investigating Deepwater Horizon Oil Rig Blowout
By Gabrielle Sigel
On June 25, 2010, Congress confirmed the appointments to the two last vacant positions on the U.S. Chemical Safety Board ("CSB"): Dr. Rafael Moure-Eraso, as CSB Chairman; and Mark Griffon, as CSB Member. On June 18, 2010, the CSB also informed Congressmen Waxman and Stupak, of the House Committee on Energy and Commerce, that the CSB intends to investigate the April 20, 2010 Deepwater Horizon oil rig explosion. This investigation is occurring in response to a request made by the Congressmen earlier in June. The CSB, in operation since 1998, is an independent agency charged with investigating industrial chemical incidents. It has no authority to issue fines or citations, but its recommendations are often relied on by other government agencies, industry organizations, and unions.
In its June 18, 2010 letter confirming that the CSB intends to proceed with its investigation of the "root causes" of the Deepwater Horizon incident, then Chairman John Bresland stated that the CSB was uniquely able to assess the incident due to its "past work on BP's culture and corporate safety oversight." In particular, it noted that CSB's investigators of the Deepwater Horizon incident will include those who investigated the March 23, 2005 explosion at BP's Texas City refinery. However, the CSB emphasized that it did not intend to investigate the response to, or the impact of, the Gulf oil spill.
Finally, the CSB informed Congress that to conduct the Deepwater Horizon explosion investigation it would need to rapidly wind down or terminate other investigations, and that it would be requesting additional funding, as needed, from Congress. The CSB noted that the investigation of the Texas City refinery incident alone cost the agency approximately $2.5 million. In its letter, the CSB did not inform Congress of any target date for the conclusion of its Deepwater Horizon investigation.
Promoting Transparency for Nanomaterials
By James A. Vroman
On June 25, 2010, the Government Accountability Office (GAO) published a report entitled Nanotechnology: Nanomaterials Are Widely Used in Commerce, but EPA Faces Challenges Regulating Risk (See GAO Report). In this report, the GAO notes that companies are increasingly using nanoparticles in the products they manufacture and that industry is diligently conducting research and development in new and innovative ways to incorporate nanoparticles into new materials and products that will reach the market in the not-to-distant future. The GAO acknowledges that the body of research on nanomaterials is growing. However, at the same time, the GAO notes that little is known about the risks nanomaterials pose to human health and the environment. As a result, the GAO strongly encourages the U.S. EPA to expand and improve its efforts to collect data and information on nanomaterials so that it may effectively regulate the manufacture and distribution of products containing nanoparticles.
Inadequate Superfund Monies May Result in New Trust Fund Taxes
By E. Lynn Grayson
According to a General Accountability Office report issued June 22, 2010, EPA’s estimated costs to remediate existing Superfund sites exceed current funding levels. Moreover, given that EPA anticipates adding about 20 to 25 sites each year to the Superfund’s National Priorities List, funding shortfalls may be even more significant. In a hearing before the Senate Environment and Public Works Subcommittee on Superfund, Toxics and Environmental Health, EPA asked Congress to reinstate a series of taxes that had financed the Superfund Trust Fund but which expired in 1995. The Superfund Trust Fund was used to cleanup sites for which no responsible party could be identified or in cases where the party was insolvent.
These taxes on oil and chemical producers and importers were part of the original Superfund law but such funds were exhausted in 2003. Since that time, EPA’s funding for the cleanup of orphan sites has come from general revenues.
Sen. Frank Lautenberg (D-N.J.) has introduced a bill, the Polluter Pays Restoration Act (S. 3164), that would reinstate these taxes. Sen. James Inhofe (R-Okla.) believes the Obama administration is taking advantage of the political climate arising from the BP oil spill to attempt to reimpose these taxes on oil and gas companies. According to Sen. Lautenberg, however, it's all about the cleanup statistics. EPA cleaned up an average of 80 sites a year while funding existed. Last year, EPA only remediated 19 sites.
More information is available in the GAO report titled EPA’s Estimated Costs to Remediate Existing Sites Exceed Current Funding Levels, and More Sites Are Expected to Be Added to the National Priorities List. Click here for GAO report.