Sequestration To Cut $716 Million From U.S. EPA Budget
By 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.
September 11th CBA and ISBA Environmental Networking Reception
By 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 firstname.lastname@example.org.
States Implement Controversial U.S. EPA Short Term TCE Exposure Limit
By Steven M. Siros
Several states have begun to implement U.S. EPA Region IX's proposed Interim Removal Action Level ("RAL") of 15 ug/m3 for trichloroethylene ("TCE") in indoor air. Notwithstanding that U.S. EPA headquarters is currently reviewing the science relied upon by Region IX in setting the RAL, California's Department of Toxic Substances Control has already begun to require mitigation in industrial and commercial buildings when that concentration is reached. New Jersey has also indicated that it is considering adopting a similar acute exposure limit for TCE.
In addition to these states, other U.S. EPA regions have adopted Region IX's RAL. For example, Region III recently ordered the evacuation of a military installation in Virginia when the TCE levels in indoor air exceeded 27 ug/m3. We will continue to monitor U.S. EPA and state actions with respect to short-term TCE exposure limits.
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.
California Issues Final Draft Of Green Chemistry Regulations
By Steven M. Siros
On July 27, 2012, California's Department of Toxic Substances Control ("DTSC") released what might be a final draft of California's green chemistry regulations that are anticipated to be finalized by the end of 2012. The intent of these regulations is to identify particular chemicals of concern in consumer products and then to require industry to prepare "alternatives assessments" to evaluate whether substitute chemicals are economically and technically feasible. In October 2011, DTSC released an earlier draft of the regulations which were strongly criticized by both industry and environmental groups. Significant changes from the prior drafts include the following:
- The number of "chemicals of concern" was reduced from approximately 3,000 to 1,200 (although additional chemicals can always be added);
- The "alternatives assessment" requirements have been relaxed to eliminate requirements to provide information that would be difficult and/or costly to obtain;
- The exemption for products regulated under other laws (i.e., FDA, FIFRA) has been eliminated; and
- Information relating to the potential hazards of a chemical can not be designated as trade secret information.
Notwithstanding these revisions that are clearly intended, at least in part, to address concerns from both industry and environmental groups, it is expected that these draft regulations will trigger many comments from interested parties. DTSC's efforts to address these comments may push the effective date of these regulations into 2013. Click hereto go to DTSC's Green Chemistry website for further information on the draft regulations.
New EPCRA Tier I and Tier II Updates
By E. Lynn Grayson
EPA has proposed changes to EPCRA Section 312 Tier I and Tier II Emergency and Hazardous Chemical Inventory Forms required under 40 CFR Part 370. The new rules become effective January 1, 2014.
The reporting requirements under the community right-to-know provisions of EPCRA sections 311 and 312 are on-going obligations. These requirements apply to owners and operators of facilities that are required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical defined under the Occupational Safety and Health Act (OSHA) Hazard Communication Standard (HCS). If the hazardous chemical is present at or above the reporting thresholds specified in 40 CFR part 370, the facility owner or operator is required to submit a MSDS or a list that contains the hazardous chemical under EPCRA section 311. Under EPCRA section 312, if a hazardous chemical is present at or above the reporting threshold specified in 40 CFR part 370, the facility owner or operator is required to submit an emergency and hazardous chemical inventory form (Tier I or Tier II) to the SERC, LEPC and the local fire department by March 1 annually.
EPA will require facilities to report whether the facility storing the chemicals is manned or unmanned and the maximum number of employees who may be present at the facility at one time on both the Tier I and Tier II forms. Additionally, companies will be required to provide contact information of the facility emergency coordinator, Tier I and Tier II contact information, as well as the email addresses of the owner or operator and emergency contact. Companies will have the option of providing facility phone numbers as well.
For the Tier II forms, EPA will also require facilities to report the latitude and longitude of storage sites as well as the identification numbers assigned under the Toxic Release Inventory and risk management program. The Tier II form also will add separate data fields to report pure chemicals as well as mixtures.
EPA had proposed requiring facilities to provide contact information for parent companies on both the Tier I and Tier II forms as well. It did not finalize that requirement. Instead, facilities will have the option to list that information.
For more information, including the new rule, visit EPA's EPCRA webpage at http://www.epa.gov/oem/content/epcra/ .
TSCA Reform: What Lessons Can We Learn From REACH?
By Steven M. Siros
On Thursday, July 26th, Jenner & Block's Environmental and Workplace Health & Safety Law practice will host "TSCA Reform: What Lessons Can We Learn From REACH?" a lunch CLE program to be held in the Chicago office from 12:00 – 1:00pm CST. This presentation is also being offered as a webinar. The presentation will provide a general overview of TSCA, discuss REACH and the ongoing efforts to reform TSCA, and review State efforts to regulate chemicals. Please Click Here to Register for the Event.
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:
- Lack of Government Resources/Insufficient Funding
- Environmental Disclosures
- Corporate Environmental Responsibility
- Water Scarcity
- Memoranda of Understanding (MOUs)
- Financial Assurance
- Soil Vapor Intrusion
- EPA Toxicological Reviews
- Improvements in Technology
Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at email@example.com and firstname.lastname@example.org. More information is available at www.jenner.com.
To access the full article, please click here.
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.
The Latest EPA Criminal Enforcement Statistics
By 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.
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.
Environmental Groups Oppose Spent Lead Bullets And Shot
By 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:
- 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.
- 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.
U.S. EPA Releases 2012 IRIS Agenda
By 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.
Business Roundtable Report Calls For Improved Permitting Process
By E. Lynn Grayson
The Business Roundtable (BRT) issued a report this month, Permitting Jobs and Business Investment Streamlining the Federal Permitting Process, highlighting the adverse impacts to business of the often long, inconsistent and burdensome federal permitting process. The CEOs of Business Roundtable believe that it is time to simplify, streamline and accelerate America's permitting process with the goal of encouraging large-scale capital investments in the U.S. economy while maintaining the nation's commitments to health, safety and soundness. With this goal in mind, this report identifies key challenges associated with the existing regulatory permitting system and sets forth a series of recommended reforms.
EPA Issues New NEPA Mapping Tool
By E. Lynn Grayson
EPA has issued a new online mapping tool, NEPAssist, to assist federal agencies in evaluating possible NEPA environmental review obligations. NEPAssist is one of five pilot projects selected by the White House Council on Environmental Quality to advance the NEPA process through innovation, public participation and transparency.
Steven Siros Will Be Speaking at ACI’s National Forum On Chemical Products Liability And Environmental Litigation
By Steven M. Siros
Jenner & Block partner Steven Siros will be speaking at ACI's National Forum on Chemical Products Liability and Environmental Litigation on April 26, 2012 in Chicago, Illinois. Mr. Siros will be discussing efforts to reform the Toxic Substances Control Act and what lessons can be learned from the European Union's REACH regulations. For further information on the forum, please click here.