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Corporate Environmental Lawyer Blog

May 19, 2015 New Report Confirms Environmental Sustainability is Good Business

Grayson photoBy E. Lynn Grayson

A new study released by Morgan Stanley confirms that investors appear to place a premium on sustainability yet believe that sustainable investments require some financial sacrifice. Two key findings include: 1) nearly three-quarters (72%) of those surveyed believe that companies with good environmental, social, and governance (ESG) practices can achieve higher profitability and are better long-term investments; and 2) 54% believe that sustainable investing involves a financial trade off.

The study set out to analyze potential performance and risk differences between sustainable and traditional investments. A range of studies on sustainable investment performance were reviewed along with performance data for 10,228 open-ended mutual funds and 2,874 Separately Managed Accounts (SMAs) based in the U.S.  Through the review, Morgan Stanley concluded that investing in sustainability has usually met, and often exceeded, the performance of comparable traditional investments. Specific findings include:

  1. Sustainable equity mutual funds met or exceeded the median return of traditional equity funds for 64% of the time periods examined.
  2. Sustainable equity mutual funds also had equal or lower median volatility for 64% of the time periods examined.
  3. For the longest time period (seven years trailing, 2008-2014), sustainable equity mutual funds met or exceeded median returns for five out of six different equity classes examined (for example, large-cap growth).
  4. Long-term annual returns of the MSCI KLD 400 Social Index, which comprises firms scoring highly on environmental, social, and governance (ESG) criteria, exceeded the S&P 500 by 45 basis points between its inception in 1990 to the end of 2014.

The study was conducted by the Morgan Stanley Institute for Sustainable Investing. The Institute seeks to accelerate mainstream adoption of sustainable investing by developing industry-leading insights and scalable finance solutions to address global challenges.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Hazmat, Sustainability

April 30, 2015 Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee

Siros photoBy Steven M. Siros

At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee.  Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.

Several of these key changes include:

Existing Information to Increase Efficiency

  • U.S. EPA will incorporate existing information regarding hazard and exposure published by other Federal agencies or the National Academics into safety assessments, with the objective of increasing the efficiency of the safety assessments and determinations where that information is available, relevant, and scientifically reliable.

Unreasonable Risk

  • The term "unreasonable risk" is either clarified to exclude consideration of costs or other non-risk factors to conform with the safety standard definition, or the word "unreasonable" is dropped.

Deadline for Implementing Restrictions and Prohibitions

  • Compliance deadlines for risk management rules are to be "as soon as practicable," and bans and phase-outs are to be implemented "in as short a period as is practicable."

Access to CBI Information

  • If U.S. EPA bans or phases out a chemical, there is a rebuttable presumption that information on that chemical should no longer be protected as confidential business information.

State Co-enforcement

  • States allowed to co-enforce, with condition that penalties can be collected from either Federal government or State and penalties at the state level cannot be greater than under federal TSCA.

Pre-emption

  • Clarification that State air and water laws are not pre-empted.
  • State information collection and disclosure laws are protected from pre-emption.
  • Any State chemical regulation is permanently protected from pre-emption that is in effect before August 1, 2015. 

Designation of a Low Priority Chemical

  • 90 days of public comment for all listing decisions.
  • Public can challenge a low priority decision within 60 days of listing.

Clarifications of High Priority Designation

  • U.S. EPA required to designate a chemical as high priority based on "significant" hazard and "significant"  exposure, and may designate a chemical as high priority if it has either characteristic.

PBTs

  • When setting the initial list of high priority chemicals, U.S. EPA must give preference to TSCA Work Plan Chemicals that are persistent and bioaccumulative.
  • PBTs added as a criteria for U.S. EPA to consider when making prioritization determinations.
  • In risk management, U.S. EPA is required to select restrictions for PBTs that reduce exposure "to the maximum extent practicable."

State Waivers

  • Pre-emption of new state regulatory actions starts when the scope of uses of a chemical is defined (maximum 6 months after a substance is identified as a high priority) and ends when the safety determination is made (no more than 5 years after a substance is identified as a high priority).
  • If the deadline for the safety determination is missed, State waivers are automatically granted.
  • In addition, U.S. EPA "shall" approve a state request for a waiver if the state meets the following criteria:
    • The State requirement doesn't violate Federal law.
    • The State requirement doesn't unduly burden interstate commerce.
    • The State's concern about the chemical substance or the use of the chemical substance is based in peer-reviewed science.
  • If U.S. EPA fails to make a decision on a state waiver within 90 days, the waiver is approved.

Industry Petitioned Chemicals

  • In addition to high-priority chemicals designated by U.S. EPA, manufacturers and processors can petition U.S. EPA to designate additional non-high priority chemicals for safety assessments and determinations.
  • The industry would pay 100% of the cost of the assessment.
  • These chemicals can amount to a minimum of 25% and a maximum of 30% of the cumulative total number of high priority chemicals.

U.S. EPA Work Plan Chemicals

  • For chemicals that U.S. EPA has already identified as high risk chemicals on the TSCA Work Plan, manufacturers can petition for those chemicals to move to a safety assessment and determination, and pay 50% of the cost. U.S. EPA has full discretion to approve or deny these industry petitions.

The revised Senate bill seems to enjoy wide bi-partisan support and has been embraced by several advocacy groups, including the Environmental Defense Fund  However, Senator Boxer has already indicated that she intends to pursue additional changes to the bill, stating "if anyone thinks the fight is over, it is just beginning." 

Another bill to amend TSCA is also making its way through the House of Representatives.  The discussion draft, captioned the "TSCA Modernization Act of 2015" was released by Representative John Shimkus.  The House's discussion draft is much narrow in scope than the bill making its way through the Senate and has yet to make its way out of the House Energy and Commerce Subcommittee on Environment and Economy. 

Assuming that the House bill makes it out of committee, the expectation is that the two chambers will have to reconcile the differences in the two bills in a conference committee.

CATEGORIES: Cercla, Climate Change, FIFRA, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA

PEOPLE: Steven M. Siros

March 31, 2015 EPA Proposes New Nanoscale Chemical Reporting Rule

Grayson_Lynn_COLORBy E. Lynn Grayson

EPA has proposed one-time reporting and record keeping requirements on nanoscale chemical substances in the marketplace. The proposed rule contains a 90-day public comment period. After the comment period, EPA will review and consider those comments before issuing any final rule. EPA also anticipates a public meeting during the comment period to obtain additional public input.

Specifically, EPA proposed requiring companies that manufacture or process (or intend to manufacture or process) chemical substances in the nanoscale range to electronically report information, including the specific chemical identity, production volume, methods of manufacture, processing, use, exposure and release information, and available health and safety data. The proposed rule would apply to chemical substances that have unique properties related to their size. The proposed rule contains exclusions for chemical substances in the nanoscale range that would not be subject to the rule. In addition to this proposed one-time reporting on chemical substances manufactured or processed as nanoscale materials already in commerce, EPA currently reviews new chemical substances manufactured or processed as nanomaterials prior to introduction into the marketplace to ensure that they are safe.

Chemical substances that have structures with dimensions at the nanoscale -- approximately 1-100 nanometers (nm) -- are commonly referred to as nanoscale materials or nanoscale substances. A human hair is approximately 80,000-100,000 nanometers wide. These chemical substances may have properties different than the same chemical substances with structures at a larger scale, such as greater strength, lighter weight, and greater chemical reactivity. These enhanced or different properties give nanoscale materials a range of potentially beneficial public and commercial applications; however, the same special properties may cause some of these chemical substances to behave differently than conventional chemicals under specific conditions.

EPA is proposing this new requirement under TSCA Section 8(a) to determine if further action, including additional information collection, is needed.

More information about the proposed rule, including the Federal Register notice, EPA fact sheet and press release, are available at http://www.epa.gov/oppt/nano/.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, FIFRA, Hazmat, RCRA, Sustainability, TSCA

January 20, 2015 California Seeks to Amend Proposition 65

Siros photoBy Steven M. Siros

On January 12, 2015, California's Office of Environmental Health Hazard Assessment ("OEHHA") proposed modifications to California's controversial Proposition 65 regulations. As any company that does business in California should know, Proposition 65 requires that a warning be provided for any product that contains one of hundreds of chemicals identified on the Proposition 65 list if there is any risk of a person being exposed to the listed chemical above a specified threshold. As a result, one is bombarded with Proposition 65 warnings from the point one disembarks onto the jet bridge until the time one arrives at his/her hotel and orders room service. OEHHA's proposed amendments to Proposition 65 appear to do little to ease the regulatory burden on companies that do business in California and/or minimize the burden of having to read all of the Proposition 65 warnings.

Overview of Proposed Changes

Warnings Must Now Identify Specific Chemicals: OEHHA has listed the following 12 chemicals which must be identified by name in any Proposition 65 warning: Acrylamide; Arsenic; Benzene; Cadmium; Carbon Monoxide; Chlorinated Tris; Formaldehyde; Hexavalent Chromium; Lead; Mercury; Methylene Chloride; and Phthalates.

Modified "Safe Harbor" Language: In order to avail oneself of the "safe harbor" warning, the warning must state that a product "can expose you" to a chemical or chemicals as opposed to the old "safe harbor" language that merely required that the warning state that the product "contains a chemical" that is known to the State to cause cancer or reproductive toxicity. In addition, for the following consumer products and services, specific warnings would be required: food and dietary supplements; alcoholic beverages; restaurant foods and non-alcoholic beverages; prescription drugs; dental care; furniture; diesel engine exhaust; parking facilities; amusement parks; designated smoking areas; petroleum products; service station and vehicle repair facilities.

New Lead Agency Website: The proposed regulations would also create a new section on the OEHHA website that would provide detailed information on products and exposures. OEHHA would also have the authority to request that businesses provide more detailed information, including estimated levels of exposure for listed chemicals.

Limited Responsibility for Retailers: Retailers would be relieved from Proposition 65 liability in most circumstances and the responsibility for providing the requisite Proposition 65 warning would fall squarely on the manufacturer, distributer, producer and/or packager.

OEHHA will be accepting written comments on the proposed changes until April 8, 2015. Not surprisingly, OEHHA's proposed regulations have not been warmly received by industry and it is expected that affected businesses and trade associations will be submitting comments in opposition to these proposed amendments. Please click here and here to see the text of the proposed amendments.

CATEGORIES: Cercla, Consumer Law and Environment, FIFRA, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA

December 24, 2014 Another Criminal Conviction Under the Migratory Bird Treaty Act for Wind Farms

Grayson photo

By E. Lynn Grayson

PacifiCorp Energy has agreed to pay $2.5 million to settle charges arising from bird deaths at two of its wind farms located in Wyoming. PacifiCorp pled guilty in Wyoming federal court to two misdemeanor violations of the Migratory Bird Treaty Act and was sentenced to five years' probation. The company also agreed to institute a compliance program to prevent bird deaths at the utility's four commercial wind farms in Wyoming.

According to allegations, the company failed to make all reasonable efforts to build projects in a way that would avoid risk of bird deaths by collision with turbine blades consistent with guidance finalized by the Fish & Wildlife Service in 2012. The Migratory Bird Treaty Act violations were charged following discovery of the carcasses of 38 golden eagles and 336 other protected birds at the company's Seven Mile Hill and Glenrock/Rolling Hills wind farms in Carbon and Converse counties.

This is the second prosecution of wind farm owners and operators under the Migratory Bird Treaty Act. Duke Energy was convicted last year in similar charges flowing from bird deaths at two of its wind farms also located in Wyoming. See "First Criminal Conviction Under the Migratory Bird Treaty Act for Wind Farm" blog we posted on November 26, 2013.

These are very troubling cases that pit environmentalists against clean energy advocates. While wind farm energy is highly sought after in the U.S., it is clear there is an increased scrutiny on the utilities that operate these wind projects to ensure that construction, design and operation of these wind farms are protective of birds. In many ways, this seems like an almost impossible achievement for companies.

CATEGORIES: Air, Climate Change, FIFRA, Sustainability

September 20, 2014 TSCA Reform Dead for 2014?

Siros_Steven_COLORBy Steven M. Siros

 

Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014.  On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate.  Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a  confidential draft version of the TSCA reform bill that was still being negotiated.  According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith.  In contrast, Senator Boxer has released our confidential proposal to the press.  That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement.  As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.

Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations.  Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment." 

Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council.  In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.

CATEGORIES: Cercla, Climate Change, FIFRA, RCRA, Sustainability, Toxic Tort, TSCA

May 21, 2014 Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions

Bandza_Alexander_COLORBy: Alexander Bandza

 

As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.  The electronic (PDF) versions of these chapters are now available online:

The entire publication is available from IICLE here.

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

April 23, 2014 Happy Earth Day - 2014

By: Robert L. Graham and E. Lynn Grayson

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.

Robert L. Graham (rgraham@jenner.com) and E. Lynn Grayson (lgrayson@jenner.com), Co-Chairs, Environmental, Workplace Health and Safety Practice Group

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

PEOPLE: Robert L. Byman

April 9, 2014 IICLE Releases New Environmental Law Publication

Grayson_Lynn_COLOR

By: E. Lynn Grayson

 

The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.

According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.

The following chapters in this publication were authored by Jenner & Block EHS lawyers.

* * *

Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago

Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago

 * * *

Chapter 5 – Illinois Environmental Forums
Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago

 * * *

Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago

The publication is available from IICLE at http://iicle.inreachce.com/.

 

 

 

 

 

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

April 4, 2014 Certain Pesticides Fail New U.S. EPA Screening Guide for Volatilization Risks

Siros_Steven_COLORBy: Steven M. Siros

 

On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides"This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.

U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.

In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.

U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.

CATEGORIES: FIFRA, Hazmat, OSHA, Sustainability, Toxic Tort, TSCA

March 11, 2014 Lawsuit Seeks To Compel U.S. EPA Disclosure Of Pesticide Inert Ingredients

Siros_Steven_COLORBy: Steven M. Siros

 

On March 5, 2014, several environmental groups filed a lawsuit against U.S. EPA seeking to compel the public disclosure of "inert" ingredients in pesticide products. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), pesticide manufacturers are obligated to list "active" ingredients. However, "inert" ingredients are not currently subject to the same disclosure requirements as "active" pesticide ingredients. According to the lawsuit, U.S. EPA has authority under FIFRA to also require the disclosure of "inert" ingredients which can comprise a significant percentage of a pesticide product's formulation.

As set forth in the complaint, in August 2006, a coalition of public health and environmental organizations submitted a petition requesting that U.S. EPA require the disclosure of certain "inert" chemicals used in pesticide products. In December 2009, U.S. EPA initiated an advanced notice of proposed rulemaking that would have required this disclosure. However, U.S. EPA has taken no further action with respect to this advance notice. The lawsuit seeks to compel U.S. EPA to either complete its proposed rulemaking or otherwise take action with respect to the pending petition.

Please click here to see a copy of the complaint.

CATEGORIES: Climate Change, FIFRA, Toxic Tort, TSCA

February 26, 2014 Green Climate Fund Board Makes Key Decisions On Operations

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling

 

Last week, the Board of the Green Climate Fund (the "Fund") met in Bali, Indonesia. The Fund was designated as an operating entity of the financial mechanism of the United Nations Framework Convention on Climate Change ("UNFCCC"). The Fund's purpose is to promote, within the context of sustainable development, the "paradigm shift towards low-emission and climate-resilient development pathways by providing support to developing countries to help limit or reduce their greenhouse gas emissions and to adapt to the unavoidable impacts of climate change." The United States and other industrialized countries at the 2009 climate summit in Copenhagen pledged $100 billion a year to the Fund—from public and private sources—as climate aid beginning in 2020.

During the three-day meetings in Bali, the Fund's Board members agreed, among other things, that the Fund will aim for a 50:50 balance between mitigation and adaptation efforts and designate 50% of adaptation funding for "particularly vulnerable countries," including least developed countries, small island developing states and African states. The Board of the Fund also determined that it will maximize engagement with the private sector and be a leader on "gender mainstreaming" and will define its gender action plan in October 2014. Click here for a link to the press release.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, RCRA, Sustainability, TSCA, Water

PEOPLE: Keri L. Holleb Hotaling

February 13, 2014 EPA 2013 Enforcement Results: Higher Penalties With Fewer Enforcement Proceedings

Siros_Steven_COLORBy:  Steven M. Siros

 

U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA. 

U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters. 

Please click here to go to U.S. EPA's 2013 enforcement results website. 

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

October 18, 2013 EPA Proposes Increased Oversight Of State Enforcement Activities

Siros_Steven_COLORBy Steven M. Siros

 

U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.

The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.

In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.

The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing  environmental laws.

CATEGORIES: Air, Cercla, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, TSCA, Water

August 6, 2013 President Obama Issues Executive Order On Chemical Safety

Torrence_Allison_COLORBy Allison A. Torrence

 

On August 1, 2013, President Obama issued an Executive Order titled "Improving Chemical Facility Safety and Security." The Executive Order is in response to recent tragedies involving chemical accidents at U.S. facilities, most recently the explosion at a fertilizer plant in West, Texas. The Executive Order establishes the Chemical Facility Safety and Security Working Group, co-chaired by the Secretary of Homeland Security, the Administrator of the EPA, and the Secretary of Labor. The Working Group is tasked with the following goals:

  • Improving Operational Coordination with State, Local, and Tribal Partners.
  • Enhanced Federal Coordination.
  • Enhanced Information Collection and Sharing.
  • Policy, Regulation and Standards Modernization.
  • Identification of Best Practices.

Notable requirements in the Executive Order include:

  • Assessing the feasibility of sharing data related to the storage of explosive materials and chemicals that are regulated under the Chemical Facility Anti-Terrorism (CFATS) standard with State, Tribal and local emergency responders.
  • Developing recommendations on ways to identify chemical facilities that are not in compliance with all federal chemical safety requirements.
  • Developing a list of potential regulatory and legislative proposals to improve the safe, secure storage, handling and sale of ammonium nitrate (the chemical at issue in the West, Texas explosion).
  • Reviewing the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) to determine if RMP or PSM should be expanded to address additional substances.
  • Identifying any chemicals that should be added to the CFATS Chemicals of Interest list.

The Working Group is required to provide a status report to the President by April 28, 2014.

Executive Order, "Improving Chemical Facility Safety and Security" is available at: http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security

CATEGORIES: FIFRA, Sustainability, Toxic Tort, TSCA