NRDC Report Highlights 42 Disease Clusters in 13 States
By Steven M. Siros
A recent report issued by the Natural Resources Defense Council ("NRDC") and the National Disease Clusters Alliance ("NDCA") has identified 42-alleged disease clusters in 13 states. [Please click here for a map of these locations.] According to the report, there is an increased incidence of cancer, birth defects and other chronic illnesses in these disease clusters. The study, which focused only on the following 13 states (Texas, California, Michigan, North Carolina, Pennsylvania, Florida, Ohio, Delaware, Louisiana, Montana, Tennessee, Missouri and Arkansas), evaluated research compiled by federal, state and local officials, as well as peer-reviewed studies, to identify the 42 disease clusters. According to the NRDC and the NDCA, the purpose of the report was to highlight the need for (1) federal agencies to work cooperatively with state and local officials to investigate these disease clusters, (2) reduction or elimination of contaminant release into the air, water and soil and (3) chemical manufacturers to better ensure the safety of their products. Plans are apparently underway to evaluate whether disease clusters exist in each of the remaining 37 states. The NRDC is set to testify before the Senate Environment and Public Works Committee on Tuesday, March 29, 2011 on the results of this report. For a copy of the report, please click here.
January 2011 Lender Liability Update Now Available
Gabrielle Sigel and Phoebe Scott, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their January 2011 Update of Environmental Cost Recovery developments. The January 2011 Lender Liability Update can be viewed by following this link: http://www.jenner.com/news/news_item.asp?id=000015734424.
More Insight On EPA’s Regulation Of Hexavalent Chromium And Perchlorate
By E. Lynn Grayson
In testimony before the Senate Environment and Public Works Committee, EPA Administrator Lisa Jackson confirmed that EPA likely will regulate hexavalent chromium in tap water but only after completing its health assessment study of the toxic contaminant. Jackson told the committee that the regulatory process would take up to two years including the completion of the human health assessment study and the ensuing public comment period. The final study is now being peer-reviewed and should be completed later this year.
New Agreement Provides EPA Access to REACH Data
By Steven M. Siros
The United States Environmental Protection Agency ("U.S. EPA") has signed a "statement of intent" with the European Chemicals Agency ("ECHA") which is intended to provided U.S. EPA with access to data collected under the European Union's Registration, Evaluation, Authorization, and Restriction of Chemicals ("REACH") law. According to U.S. EPA, the statement of intent "puts in place a process for working together on a range of mutual interests, including toxicity testing, the hazard and risk assessment of chemicals, risk management tools, scientific collaboration and information exchange." The two agencies also will share criteria for managing confidential business information with the goal being to increase the availability of chemical information to the public. This partnership between U.S. EPA and ECHA is viewed by some as a first step in the process in the United States to reform the Toxic Substances Control Act ("TSCA") to be more like the European Union's REACH law. REACH is based on the precautionary principle and chemical manufacturers in the European Union are required to generate data demonstrating conclusively that their products are safe before they can be marketed. TSCA, on the other hand, currently takes more of a risk-based approach to regulating chemical substances. TSCA currently provides U.S. EPA with the authority to ban or regulate chemical substances upon a showing that the chemical presents or will present an unreasonable risk of injury to health or the environment.
WHO Issues Indoor Air Quality Guidance
By E. Lynn Grayson
The World Health Organization (WHO) recently issued its first guidance on indoor air quality concerns. The new report titled WHO Guidelines for Indoor Air Quality-Selected Pollutants evaluates exposure risks and other considerations for nine chemicals commonly found in indoor air. The nine chemicals addressed in the report are benzene, carbon monoxide, formaldehyde, naphthalene, nitrogen dioxide, polycyclic aromatic hydrocarbons, radon, trichloroethylene, and tetrachloroethylene.
TSCA Reform: The Push For More Disclosure
By: Steven M. Siros, Katherine M. Rahill, and Genevieve J. Essig
On November 15, 2010, Jenner & Block Partner Steven M. Siros and Associates Katherine M. Rahill and Genevieve J. Essig published a guest column in Law360 discussing information disclosure issues related to efforts to reform the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq., which governs the manufacture, distribution, and use of chemical substances in the U.S. The article provides a brief overview of existing TSCA chemical reporting requirements, examines the current efforts to reform the TSCA both via congressional action and EPA and state efforts, and provides practical tips to companies on how to best comply with TSCA reporting requirements while still shielding themselves from unforeseen liabilities associated with misinterpretation of information.
To access the full article, please click here.
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.
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/.
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.
EPA Says Formaldehyde Causes Cancer
By E. Lynn Grayson
EPA announced the release of the draft Toxicological Review of Formaldehyde – Inhalation Assessment in the June 2, 2010 Federal Register. EPA found that the chemical, present in a wide variety of consumer products, causes cancer when inhaled. The new findings also conclude that formaldehyde could be up to five times more likely to cause cancer in people than the EPA calculated in 1989 when it classified the chemical as a probable human carcinogen. The Centers for Disease Control and Prevention estimates that U.S. residents typically are exposed to daily formaldehyde concentrations of 10 ppb to 30 ppb indoors. By comparison, EPA’s draft assessment proposes candidate reference concentrations for this chemical ranging from 4 ppb to 9 ppb.
The Formaldehyde Council, Inc. (“FCI”), a non-profit association that represents the leading producers and users of formaldehyde in the U.S., disagrees with EPA’s findings in the draft report. FCI plans to submit additional comments detailing the industry’s position and welcomes the further review to be conducted by the National Academy of Sciences.
EPA seeks public comments on this draft assessment through July 31st. EPA has scheduled a public listening session that will be held on July 27th.
CBI Protections for Chemicals May be Lost
By Steven M. Siros
In a May 27, 2010 Federal Register notice, U.S. EPA announced that it will begin reviewing Confidential Business Information ("CBI") claims for health and safety studies submitted under the Toxic Substances Control Act and will reject the CBI claims that do not meet TSCA's requirements for CBI treatment. (TSCA Section 8(e).) U.S. EPA not only will review new submissions but the Agency also intends to reevaluate CBI claims in prior submissions. U.S. EPA will issue determination letters rejecting CBI claims where the health and safety study claimed as containing "Confidential Business Information:" (1) does not explicitly contain process information or (2) does not reveal data disclosing the portion of the mixture comprised by any of the chemical substances in the mixture. This action is part of U.S. EPA’s continuing efforts to make available to the general public information the relevant studies that assess the health and safety risks of chemicals. To review the federal register notice, please click here.
U.S. EPA Adds Chemicals and Facilities to Envirofacts Database
By Steven Siros
On May 17, 2010, U.S. EPA announced that it was adding more than 6,300 chemicals and 3,800 chemical facilities regulated under the Toxic Substances Control Act (“TSCA”) to U.S. EPA public database “Envirofacts”. The Envirofacts database is a publicly available database that provides a single point of access for information concerning environmental activities affecting air, water and land at facilities throughout the United States. http://www.epa.gov/enviro/. Information available on the database includes facility names and addresses, aerial facility images, and links to other U.S. EPA databases such as the Enforcement Compliance History Online database. These steps are being taken by U.S. EPA as part of Administrator Jackson’s commitment to increase public access to information on chemicals. See http://www.epa.gov/oppt/existingchemicals/pubs/enhanchems.html for further information concerning this U.S. EPA initiative.
Big Changes in Store for TSCA
By James A. Vroman
Congress enacted the Toxic Substances Control Act ("TSCA") in 1976 amid much fanfare. Ostensibly, the Act gave the U.S. EPA authority to regulate chemicals manufactured in, or imported into, the United States with the goal of banning or restricting the use of chemicals that could pose an unacceptable risk to human health or the environment. However, from the date of its enactment, the "authority" the Agency had to regulate the manufacture or importation of chemicals under TSCA was severely limited and restricted. See, High Risk Series: An Update. GAO-09-271. Washington, D.C.: Jan. 22, 2009, at pp. 22-23.