Jenner & Block

Corporate Environmental Lawyer Blog

August 18, 2015 Canada Takes Action to Ban Microbeads

Grayson photoBy E. Lynn Grayson 

The Canadian government recently took action to ban microbeads, very small particles found in a variety of consumer and personal care products that may pose adverse environmental impacts in rivers, lakes, and oceans after they are washed down the drain.

Specifically, the Canadian government proposes to designate microbeads as toxic substances and to develop regulations that would prohibit the manufacture, import, and sale of consumer and personal care products containing microbeads.

A thorough scientific review that included an analysis of over 140 scientific papers, as well as consultations with experts, revealed that the presence of microbeads in the environment may have long-term effects on biological diversity and ecosystems. A summary of key findings include:

CATEGORIES: Consumer Law and Environment, Sustainability, Water

July 28, 2015 EPA’s Safer Choice Program Awards

Grayson photoBy E. Lynn Grayson

EPA’s Safer Choice program (formerly Design for the Environment) recognizes products that meet stringent ingredient and product level criteria. Safer Choice products do not contain  carcinogens or reproductive or developmental toxins. The program helps consumers and commercial buyers identify and select products with safer chemical ingredients without sacrificing quality or performance.

According to EPA, there are over 2,000 products that currently qualify for the Safer Choice label. This summer, EPA’s new Safer Choice labels began appearing on consumer products such as household soaps and cleaners. To qualify for the Safer Choice label, a product must meet stringent human and environmental health criteria.

In the first  year of the Safer Choice Partner of the Year awards, the Chicago/Region V area has more winners than any other part of the country. Local award winners include: AkzoNobel/Chicago; ISSA, The Worldwide Cleaning Industry Association/Northbrook; Jelmar, LLC/Skokie; Loyola University Chicago, Institute of Environmental Sustainability/Chicago; and Stepan Company/Northfield. Nationwide, 21 entities won EPA Safer Choice Partner of the Year awards. EPA confirms there are nearly 500 formulator-manufacturer partners that make more than 2,000 products for retail and institutional customers.

More information about the Safer Choice program is available at http://www2.epa.gov/saferchoice.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, Greenhouse Gas, Sustainability, Water

July 21, 2015 New EPA Report: Climate Change in the United States: Benefits of Global Action

Grayson photoBy E. Lynn Grayson

A new EPA report, Climate Change in the United States: Benefits of Global Action, estimates the physical and monetary benefits to the U.S. of reducing global greenhouse gas emissions. The report summarizes results from the Climate Change Impacts and Risks Analysis (CIRA) project, a peer-reviewed study comparing impacts in a future with significant global action on climate change to a future in which current greenhouse gas emissions to continue to rise.

The report shows that global action on climate change will significantly benefit Americans by saving lives and avoiding costly damages across the U.S. economy. The report and its finding perhaps foreshadow the U.S. participation in the upcoming United Nations Climate Change Conference to be held in Paris, France later this year, from November 30 through December 11. This will be the 21st yearly session of the Conference of the Parties (COP 21) to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 11th session of the Meeting of the Parties (CMP 11) to the 1997 Kyoto Protocol. Once again, the conference objective is to achieve a legally binding and universal agreement on climate from all of the nations of the world.

Below is a video developed by EPA discussing the report and its findings.

CATEGORIES: Climate Change, Consumer Law and Environment, Greenhouse Gas, Real Estate and Environment, Sustainability, Water

June 18, 2015 Alexander J. Bandza To Moderate Teleconference on This Year’s Environmental, Energy Supreme Court Cases

By Genevieve J. Essig

Next month, on July 9, 2015, Associate Alexander J. Bandza will moderate a lunchtime ABA teleconference titled “Supreme Court Year in Review: The Environmental Cases.”  The event will feature a discussion of the following four Supreme Court cases from this past term that will affect environmental and energy lawyers: (1) Kansas v. Nebraska and Colorado; (2) Michigan v. EPA; (3) Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund; and (4) Oneok Inc. v. Learjet, Inc.

A distinguished panel of speakers will discuss these cases:

  • Shannon S. Broome, Katten Muchin Rosenman LLP, Oakland, CA
  • Anne M. Carpenter, Katten Muchin Rosenman LLP, Washington, DC
  • Stephen R. McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, The University of Kansas School of Law and Solicitor General of Kansas, Lawrence, KS
  • A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Chicago, IL

A question-and-answer session to follow.  Registration and additional information is available here.

CATEGORIES: Consumer Law and Environment, Sustainability

June 1, 2015 Corporate Environmental Lawyer celebrates five years of blogging with a new design!

In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:

  1. Mobile and tablet responsive technology
  2. A trending-categories cloud list
  3. Easy-to-use social sharing buttons
  4. Streamlined navigation menus

  5. Access to all five years of posts

In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics.  We look forward to continuing to provide content covering the issues that are driving changes in environmental law.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Keri L. Holleb Hotaling, Stephen H. Armstrong, Robert L. Byman, Anne Samuels Kenney (Andi), Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

May 31, 2015 EPA Denies Request to Ban Trisclosan

Grayson photoBy E. Lynn Grayson

EPA has denied the January 14, 2010 petition submitted by the Food & Water Watch and Beyond Pesticides to ban the antimicrobial pesticide triclosan. The petition requested that EPA take the following regulatory actions:

  • Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA): (1) reopen the Reregistration Eligibility Decision (RED); (2) issue a notice of cancellation of the registrations of all products containing triclosan; and (3) concurrently issue an emergency order to immediately suspend the existing triclosan registrations.

  • Clean Water Act (CWA): (1) impose technology-based effluent limitations; (2) establish healthbased toxic pollutant water quality pretreatment requirements; and (3) impose biosolids regulation for triclosan.

  • Safe Drinking Water Act (SDWA): conduct a comprehensive assessment of the appropriateness of regulating triclosan under SDWA.

  • Endangered Species Act (ESA): (1) conduct a biological assessment; and (2) engage in consultation with the Secretary of the Interior and the Secretary of Commerce.

CATEGORIES: Climate Change, Consumer Law and Environment, FIFRA, Sustainability, Water

May 19, 2015 EPA Lacks Authority to Regulate Plastic Microbeads in Water

Grayson photoBy E. Lynn Grayson

Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to  regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.

According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.

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

May 7, 2015 Minnesota House and Senate Each Pass Bills Banning The Sale and Manufacture of Products Containing Plastic Microbeads

Bandza photoBy Alexander J. Bandza

"Microbeads" are synthetic microspheres widely used in cosmetics, skin care and personal care products, which are added as exfoliating agents.  Public interest groups have expressed concern that, because wastewater systems may be unable to filter microbeads from effluent released into public waterways, microbeads are entering the marine food chain.  This week, the Minnesota House and Senate each passed bills that would ban the manufacture and sale of products containing plastic microbeads. 

Both bills contain the same phased timeline:

  • Effective December 31, 2018, no one can sell personal care products containing synthetic plastic microbeads, but persons can continue selling over-the-counter drugs containing synthetic plastic microbeads.  However, that same day, no one can manufacture for sale over-the-counter drugs that contains synthetic plastic microbeads. 
  • Effective December 31, 2019, no one can sell over-the-counter drugs containing synthetic plastic microbeads.

CATEGORIES: Consumer Law and Environment, Sustainability, Toxic Tort, Water

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

February 24, 2015 CPSC Seeks Funding for Nanotechnology Center

Grayson photoBy E. Lynn Grayson

The Consumer Product Safety Commission (CPSC) is seeking $7M to establish a nanotechnology center and proposes to create a five year interagency agreement with the National Science Foundation and a learning center or university to house the center. The proposed "Center for Consumer Product Applications and Safety Implications of Nanotechnology" would be a consortium of scientists tasked with researching methods to quantify and characterize the presence, release and mechanisms of consumer exposure to nanomaterials from consumer products.

Nanotechnology is the manipulation of matter on an atomic, molecular and supramolecular scale. While there is some controversy over the correct definition, nanomaterials generally are characterized by their tiny size, measured in nanometers. A nanometer is one millionth of a millimeter—approximately 100,000 times smaller than the diameter of a human hair. While nano-sized particles exist in nature, there is growing concern over the increased use of and impacts from engineered nanomaterials present in many commercial, industrial and consumer products—most nanoscale materials are too small to be seen with the naked eye or even with conventional lab microscopes, according to the National Institute of Environmental Health Sciences.

According to the CPSC, the Woodrow Wilson International Center for Scholars issued a 2008 report evaluating the CPSC's role in nanotechnology. The report concluded that nanotechnology is used in all of the categories that CPSC regulates including toys and baby products, sports and fitness equipment, home improvement and garden equipment, clothing, appliances, computers and other electronic devices. The Wilson Center has established a Consumer Products Inventory identifying over 1,800 consumer products that contain nanomaterials.

Even though the CPSC is attempting to take a more proactive approach to nanotechnology, it is believed by many that the CPSC is behind the curve in analyzing the impacts of nanomaterials in consumer goods, particularly those associated with children's products. All agree the launch of the new nanotechnology center would be an important step for the CPSC assuming the necessary funding can be secured.

The CPSC has been active in developing agreements with other agencies to address issues related to nanotechnology and is a member of the National Nanotechnology Initiative—a group of 25 government agencies that have committed resources for the completion of nanotechnology research to assess environmental, health and safety concerns and related data gaps.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, Hazmat, Sustainability, Water

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