DTSC Seeks Comments on New Safer Consumer Products Guidance
By E. Lynn Grayson
The California Department of Toxic Substances Control (DTSC) has issued draft guidance titled Alternatives Analysis Guide and is seeking comments through January 20, 2017. California’s Safer Consumer Products (SCP) Program challenges product designers and manufacturers to reduce toxic chemicals in their products. According to DTSC, the SCP regulations establish innovative approaches for responsible entities to identify, evaluate, and adopt better alternatives. The SCP approach requires an Alternatives Analysis (AA) that considers important impacts throughout the product’s life cycle and follows up with specific actions to make the product safer. DTSC prepared the Draft Alternatives Analysis Guide to help responsible entities conduct an AA to meet the regulatory requirements. Public comments are specifically requested to provide DTSC with insight on the clarity and usefulness of the Draft Alternatives Analysis Guide.
DTSC’s SCP Program regulations took effect October 1, 2013 and are being implemented based on the various regulatory requirements. The goals of the program are to: 1) reduce toxic chemicals in consumer products; 2) create new business opportunities in the emerging safer consumer products industry; and 3) help consumer and businesses identify what is in the products they buy for their families and customers.
The SCP program implements a four-step process to reduce toxic chemicals in the products that consumers buy and use. It identifies specific products that contain potentially harmful chemicals and asks manufacturers to answer two questions: 1) Is this chemical necessary? 2) Is there a safer alternative? The first step involved publication of a list of candidate chemicals that exhibit a hazard trait and/or an environmental toxicological endpoint. Regulators must then identify potential “priority products” containing chemicals that pose a significant risk to public health or the environment. Once a priority product is declared through a separate rulemaking, regulated entities must conduct an alternative analysis to determine if safer options are available. The final step in the lengthy process is for the department to determine if a regulatory response, such as banning the chemical-product combination, is required.
To learn more about the status of the SCP program and to obtain a copy of the new guidance, visit the DTSC SCP website at http://www.dtsc.ca.gov/SCP/index.cfm.
World’s Largest Marine Protected Area Established
By E. Lynn Grayson
The United States, in conjunction with 25 other countries, recently approved the creation of the world’s largest Marine Protected Area (MPA) in Antarctica’s Ross Sea. The Ross Sea Region MPA will safeguard one of the last unspoiled ocean wilderness areas on the planet—home to unparalleled marine biodiversity and thriving communities of penguins, seals, whales, seabirds, and fish.
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)—which operates by the unanimous consent of its 25 members—reported its extraordinary progress in safeguarding a very unique environmental marine area. The designation will prohibit or strictly limit commercial fishing as well as mineral extraction, among other such activities. The Ross Sea MPA will become effective December 1, 2017.
The new MPA adds 1.55 million square kilometers (598,000 square miles) in new ocean protection in an area nearly twice the size of the state of Texas. This designation—on top of the nearly 4 million square kilometers of newly protected ocean announced around the world at the Our Ocean conference the State Department hosted in September—makes 2016 a landmark year for ocean stewardship
More information about this environmental marine achievement can be found at the CCAMLR website at https://www.ccamlr.org/.
Chicago: New Industrial Growth Zones Program
By E. Lynn Grayson
Mayor Rahm Emanuel and Cook County Board President Toni Preckwinkle recently launched an unprecedented effort to generate new industrial investment in Chicagoland neighborhoods. The Industrial Growth Zones program will accelerate neighborhood development in seven designated areas over the next three years by removing longstanding hurdles to development and providing a broad set of services to support property owners and industrial businesses. The purpose of the program to spur economic growth and generate real, sustainable jobs by promoting investment and industrial development in Chicago neighborhoods.
The program will address two primary issues traditionally viewed as obstacles to new landowners and developers: 1) vacant or unused lands with environmental conditions; and 2) often complex governmental regulatory oversight. As part of the program, participants will obtain access to a new site certification program making information about land available and transparent, allowing preparations for faster development. In addition, the program may provide up to $130,000 in financial assistance to fund environmental site assessments and remediation, if needed. Critical assistance also will be provided to lead projects through the City's permitting and regulatory requirements.
During the three-year pilot program, the designated zones include the Northwest, Greater Southwest, Burnside and Calumet Industrial Corridors, and the Roosevelt/Cicero Redevelopment Area in Chicago; and several South Suburban communities which contain significant assets, but face very real economic challenges The City of Chicago Department of Planning and Development and Cook County Bureau of Economic Development are collaborating with partners including the Civic Consulting Alliance, World Business Chicago and the Zeno Group on the initiative.
Working within the City of Chicago to develop or redevelop impacted property is always challenging. This new program is a positive development offering support to streamline and aid potential new landowners and developers.
Ninth Circuit Denies Rehearing Petition in Novel Aerial Deposition CERCLA Case
By Allison Torrence
The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.
The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.
The defendant filed a motion to dismiss the plaintiffs’ CERCLA claims, which the trial court denied. The trial court found that air emissions could constitute disposal under CERCLA, but, recognizing the novel nature of this argument, certified the issue for immediate appeal to the Ninth Circuit. The three-judge panel in the Ninth Circuit reversed.
CERCLA does not set forth its own definition of “disposal”, rather it cross-references the definition in RCRA. Thus, under both CERCLA and RCRA “disposal” is defined as:
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3).
The Ninth Circuit found that plaintiffs’ interpretation of “disposal” to include “aerial deposition” is “a reasonable enough construction”, but ultimately determined that Congress did not mean to include the gradual spread of contaminants without human intervention in the definition of “disposal” in CERCLA (or RCRA). Instead, hazardous waste must first be placed into or on the land by human involvement. Thus, the defendants in this case did not arrange for the disposal of hazardous waste and were not responsible parties under CERCLA.
The State of Washington and the Tribes filed for rehearing and rehearing en banc, which were denied without further explanation on October 11, 2016. The plaintiffs now have 90 days to seek an appeal in the U.S. Supreme Court, if they choose to do so.
EPA Issues New Climate Change Fact Sheets
By E. Lynn Grayson
EPA recently issued fact sheets detailing climate change impacts for each state and U.S. territory. In doing so, EPA confirmed some very basic, general findings about climate change impacts overall:
Every state will become warmer.
The impacts of climate change are likely to be very different from state to state.
Increased rainfall intensity will cause more flooding in some states, while increasingly severe droughts may threaten water supplies in other states.
Farms and forests will be less productive in some states, but warmer temperatures may extend growing seasons in others.
The fact sheets are short two page documents focused on differing issues for each state including, for example, climate change impacts related to ecosystems; air pollution and human health; the Great Lakes; agriculture; the Illinois, Ohio, and Mississippi Rivers; coastal flooding; heavy precipitation/flooding; sea level rise; and winter recreation. The fact sheet for Illinois provides good insight into the kind of information detailed.
While the new information supplements the existing climate change data available online from EPA, the information in many of the fact sheets appears dated, very general in nature, and perhaps geared to the general public. Existing climate change data associated with impacts by region and by sector is more detailed and may be more useful overall. See https://www3.epa.gov/climatechange/impacts/.
The new fact sheets are available via EPA’s climate change web page at https://www3.epa.gov/climatechange/impacts/state-impact-factsheets.html
EPA Energy Star Portfolio Manager Updates For Commercial Buildings--New Webinars Announced
By E. Lynn Grayson
EPA has announced a new waste and materials tracking feature in its Energy Start Portfolio Manager—a free benchmarking and tracking tool for commercial building owners and managers. The new waste tracking functionality allows the management of energy, water and waste via one secure online resource. This is another effort to promote and encourage sustainable materials management to conserve resources, remain economically competitive and support a healthy, sustainable environment.
EPA’s Energy Star Portfolio Manager provides a platform to improve energy performance, prioritize efficiency measures, and verify energy reductions in buildings. It currently measures energy, water and greenhouse gas metrics in more than 450,000 U.S. buildings, representing 40 percent of U.S. commercial space. The new resource unifies energy, water and waste under one virtual “roof” to streamline sustainability management programs allowing entities to better understand their environmental footprint and resource costs.
EPA is hosting two webinars to introduce the basics of the new waste tracking component in the Energy Start Portfolio Manager:
Introducing Waste & Materials Tracking in Portfolio Manager—August 18 at 2:00 p.m. ET
Introducing Waste & Materials Tracking in Portfolio Manager---September 15 at 1:00 p.m. ET
To learn more about sustainability initiatives in commercial buildings or to register for the upcoming webinars: https://www.energystar.gov/buildings/owners_and_managers/existing_buildings/use_portfolio_manager/track_waste_materials
2016 Democratic Party Platform: Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice
By Allison Torrence
Last week, we examined the key environmental issues raised in the 2016 Republican platform. Now that the political focus has shifted from Cleveland to Philadelphia, where Democrats are holding their convention, we will examine what the Democratic Party has to say about its environmental priorities in the 2016 Democratic Party Platform. One of the Democratic Party platform’s 13 main sections is entitled “Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice.” Environmental issues are also raised in the section titled “Confront Global Threats”, which discusses “Global Climate Leadership.”
In the platform’s preamble, the Democrats state that:
Democrats believe that climate change poses a real and urgent threat to our economy, our national security, and our children’s health and futures, and that Americans deserve the jobs and security that come from becoming the clean energy superpower of the 21st century.
Other key positions from the Democratic environmental platform include:
2016 Republican Platform – A Focus on American Natural Resources
By Allison Torrence
On Monday, Republicans gathered in Cleveland to kick off the Republican National Convention and adopt the official 2016 platform of the Republican Party. One of the platform’s six main sections is titled “American Natural Resources: Agriculture, Energy, and the Environment.” Republicans summarize their environmental platform by stating:
“We firmly believe environmental problems are best solved by giving incentives for human ingenuity and the development of new technologies, not through top-down, command-and-control regulations that stifle economic growth and cost thousands of jobs.”
Key positions from the Republican environmental platform include:
Commercial Property Assessed Clean Energy (PACE) Financing
By Donald I. Resnick, Kristen M. Boike and Lynn S. Fradkin
Commercial Property Assessed Clean Energy (PACE) financing is an innovative program designed to incentivize commercial businesses to undertake green efforts. By utilizing PACE financing, governmental bodies encourage commercial entities to invest in improvements or technologies that will save energy, produce renewable energy, and/or, in some states, conserve water. This concept is growing in popularity because it is a creative method to efficiently and effectively provide capital for sustainability projects.
How Does Commercial PACE Financing Work?
A potential borrower interested in securing commercial PACE financing must first determine whether the state in which the project is located has passed commercial PACE financing enabling legislation and, if so, whether the applicable municipality or county has established a program for which the project qualifies. A state must pass authorizing legislation to enable a governmental entity or other inter-jurisdictional authority to form a special tax district or special assessment district to operate a commercial PACE program. This is a key feature of the PACE financing model because the model requires the imposition of assessments or special taxes against the property that benefits from such improvements.
PACE enabling legislation has already been adopted in 32 states, including Illinois, California, and New York, as well as the District of Columbia. Once the state legislation has been passed, a program sponsor (a state, consortium of governmental entities, or a single local governmental body) must design and implement a commercial PACE program to achieve its objectives, which may include economic and workforce development and greenhouse gas reduction targets. Accordingly, there may be numerous programs within a particular state, each with its own customized parameters. For example, in California there are 11 different commercial PACE programs and, as a result, PACE financing is available in most California municipalities.
Companies Publishing More Sustainability Reports
By E. Lynn Grayson
According to the Governance & Accountability Institute (G&A), 81% of S&P 500 Index companies published a sustainability or corporate responsibility report in 2015. The S&P Index is one of the most widely-followed barometers of the U.S. economy and conditions for large-cap public companies in the capital markets.
The G&A Institute has analyzed the index company components’ sustainability reporting activities for the past five years. There has been a rapid and significant uptake in corporate sustainability reporting among the 500 companies. Over the years, sustainability reporting rose from just 20% of the companies reporting in 2011 to 81% in 2015. According to the G&A Institute, this increased corporate reporting underscores the importance of setting strategies, measuring and managing environmental, social, and governance issues in response to growing stakeholder and shareholder expectations, and in some cases, demands for such reporting from major customers.
The growth in sustainability reporting tracked by the G&A Institute is as follows:
In 2011, just under 20% of S&P 500 companies had reported;
In 2012, 53% (for the first time a majority) of S&P 500 companies were reporting;
By 2013, 72% were reporting—that is 7-out-of-10 of all companies in the popular benchmark; and
In 2014, 75% of the S&P 500 were publishing reports.
The G&A Institute has joined forces with the Trust Across America/Trust Around the World (TAA/TAW) program to explore potential relationships of the trustworthiness of companies that do and do not report. The companies have charted and are analyzing the 99 index companies in 2015 that did not report on their sustainability opportunities, risks, strategies, actions, programs and achievements. More information about the work of the G&A Institute and this new initiative with TAA/TAW is available at http://www.ga-institute.com/.
While not yet mandatory in the U.S., sustainability and corporate social responsibility reporting is a growing trend and becoming somewhat of an expectation among the largest public and private companies. It appears that the new focus and scrutiny will not be on the companies reporting but those that have decided not to do so.
Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court
By Matt Ampleman, J.D. Candidate, 2017, Yale Law School
The Supreme Court last Tuesday ruled in favor of landowners seeking the right to challenge the U.S. Army Corps of Engineers’ (the Corps) wetlands determinations in federal courts. In U.S. Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. ____ (2016), the owner of a peat mining company in North Dakota, Hawkes, sought to expand its operations to wetlands in northwest Minnesota and sell the peat for golf courses, sports turf, landscaping, and gardening. Unfortunately for Hawkes, the Corps issued a “jurisdictional determination” (JD), which stated that the wetlands on its property were “waters of the U.S.” under the Clean Water Act (CWA) and thus Hawkes would be subject to costly CWA Section 404 permitting requirements. The Corps argued that its determination could not be challenged in federal courts because it was not a final agency action. The Supreme Court disagreed, upholding the Eighth Circuit ruling that the JD, as issued by the Corps, constituted a final agency action and could be challenged in federal court.
Great Lakes Water Diversion Moves Forward
By E. Lynn Grayson
Last week the Regional Body for the Great Lakes-St. Lawrence River Basin Water Resources Compact agreed that the City of Waukesha, WI met the compact exception criteria—moving one step closer to approval for a diversion of Great Lakes water outside of the boundaries of the river basin. Many are concerned that this move may establish a bad precedent for others seeking diversion of water from the Great Lakes to address growing water quality and quantity challenges.
The City of Waukesha, located in southeast Wisconsin 17 miles west of Lake Michigan, seeks an exception from the prohibition of diversions under the Great Lakes–St. Lawrence River Basin Water Resources Compact and Great Lakes–St. Lawrence River Basin Sustainable Water Resources Agreement. The Compact and Agreement prohibit diversions of Great Lakes water, with limited exceptions. One exception allows a “community within a straddling county,” such as Waukesha, to apply for a diversion of Great Lakes water.
On January 7, 2016, the Wisconsin Department of Natural Resources forwarded the City of Waukesha’s diversion application to the other Great Lakes states, and the Canadian provinces of Ontario and Quebec for regional review. On May 18, 2016 the Regional Body approved a Declaration of Finding concluding that, with conditions, the City of Waukesha’s diversion application meets the Compact exception criteria. Conditions included a reduced maximum diversion volume of 8.2 million gallons per day and a reduced area the diverted water can be served. The Compact Council will make the final decision with a vote on whether to approve, approve with conditions, or deny the City of Waukesha’s diversion application. The Compact Council is scheduled to meet June 21, 2016 in Chicago, IL.
The Compact was passed in 2008 to protect the Great Lakes from attempted water grabs. The Waukesha, WI proposal to pump water from Lake Michigan, 15 miles to the east, as a replacement water supply for its radium-contaminated wells is the first such application under the compact. The proposal has been the subject of critical review as environmental groups and others worry about setting an inappropriate precedent for access to water from the Great Lakes.
The underlying documentation is available from the Wisconsin Department of Natural Resources as well as more detail about the upcoming meeting of the Compact Council in Chicago.
Alexander Bandza Moderating Young Professionals in Energy Event on Hydraulic Fracturing in Illinois
By Allison A. Torrence
On Thursday, April 7, 2016, Young Professionals in Energy (Chicago) is hosting an event titled “Hydraulic Fracturing in Illinois: What Has The National Frenzy Meant For Our State?” at Jenner & Block’s Chicago office. The event will be moderated by Jenner & Block attorney and YPE Board Member, Alexander Bandza, and will feature presentations from Jenny Cassel, Staff Attorney at Environmental Law and Policy Center, and Nancy Loeb, Director of the Environmental Advocacy Center, Northwestern University School of Law.
For more information and to RSVP click here.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
By Allison A. Torrence
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
Issues relating to the Corps’ jurisdiction under the Clean Water Act;
Fallout under the Safe Drinking Water Act after Flint;
U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
Status of TSCA reform efforts;
Litigation relating to GMOs under FIFRA;
RCRA waste regulation amendments;
OSHA penalty updates;
U.S. EPA challenges;
Water scarcity and sustainability; and
Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
Steven Siros Presenting at a Webinar on Chemical Fingerprinting
By Allison A. Torrence
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.