Sens. Frank Lautenberg (D-NJ) and David Vitter (R-LA) announced a bi-partisan bill to modernize the Toxic Substances Control Act (TSCA). The “Chemical Safety Improvement Act of 2013” would see all chemicals in commerce screened for safety in order to protect public health and the environment. It would also allow industry to continue on a path of innovation, and create and grow jobs for manufacturers. Sen. Vitter said the bill “strikes the right balance between strengthening consumer confidence in the safety of chemicals while also promoting innovation and the growth of an important sector of our economy.”
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On May 14, 2013, the 5th Circuit dismissed a suit filed by Mississippi Gulf Coast residents and property owners against more than 30 companies and the Tennessee Valley Authority alleging defendants’ greenhouse gas emissions intensified the wrath and resulting property damage of Hurricane Katrina. The 5th Circuit dismissed the claims as barred by res judicata. Plaintiffs first filed such claims in 2005, which the district court dismissed with prejudice (“Comer I”). The 5th Circuit reversed that decision in part, then sought to rehear the claims en banc. After many judges’ recusal, the 5th Circuit held it did not have a quorum and dismissed the appeal. The Supreme Court denied reviewing the case.
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It looks like Governor Jerry Brown is taking on Prop 65 in an effort to make California more business friendly, and put a limit on frivolous “shake-down” lawsuits. For decades, manufacturers from all over the globe have had the unpleasant problem of having to pay legal fees to the bounty-hunting plaintiff’s attorneys just to avoid the defensive costs of litigation even when the lawsuit has no merit. Thanks to the excess of one such bounty-hunting plaintiff’s attorney recently skewered in a Sacramento Bee op-ed, Assemblyman Gatto has introduced a bill (AB 227) that looks like it will now get serious traction.
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The European Union (EU) has adopted an amendment to Annex XIV of the Registration, Evaluation, Authorization and Restriction of Chemical (REACH) substances regulation. Annex XIV, represents the Authorization List of the REACH program, and the amendment was published on April 18, 2013. The amendment will add trichloroethylene, chromium trioxide, acids generated from chromium trioxide and their oligomers, sodium dichromate, potassium dichromate, ammonium dichromate, potassium chromate and sodium chromate to the authorization list. The elevation of these chemicals under REACH could translate to an elevated interest in these chemicals under California's Safer Consumer Product regulations.
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Beginning on July 20, 2013, a set of new EN 71-3 chemical requirements from the EU Toy Safety Directive will go into effect. The new requirements require toys to be designed and manufactured in a manner that will prevent exposure to harmful chemical elements that can impact human health. The requirements include restrictions on toxic elements, certain fragrances and the use of carcinogenic, mutagenic and reprotoxic (CMR) chemicals. Manufacturers will now be required to provide a Technical File, which contains documentation that demonstrates the toy complies with design, manufacture, chemical and operational requirements. The file must be updated when any changes to the toy, legislation or standards.
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The California Environmental Protection Agency (Cal/EPA) along with the Office of Environmental Health Hazard Assessment (OEHHA) have released the California Communities Environmental Health Screening Tool, Version 1 (CalEnviroScreen 1.0). The agencies had previously released two drafts for CalEnviroScreen last summer and most recently at the beginning of this year. Some of the comments received on the first two drafts were used to improve the tool. The tool provides the state the ability to comprehensively screen the state and determine which communities are most burdened by multiple sources of pollution. It also presents statewide results of the analysis using the screening tool. To visually illustrate the results, there is an online map that shows the zip codes burdened with the highest pollution impact to lowest impact, certain to cause concern by residents in those high impact zip codes.
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A bill has been introduced in the New York legislature that would prohibit nondisclosure agreements in settlements relating to hydraulic fracturing where aspects of the case relate to public health or safety. S. 4630 was introduced last week in the legislature by Senator Mark Grisanti (R-Buffalo), who has pitched several bills in the legislature concerning hydraulic fracturing. Hydraulic fracturing is defined in the bill as “the use of chemicals, water and other substances injected or pumped into a natural gas well to stimulate the extraction of natural gas.” The bill states, “When the parties to an action, which in any manner relates to hydraulic fracturing, agree to settle such action, the term of such settlement shall not include or be subject to any non-disclosure agreement when any facts disclosed in such action relate to a threat to the public health or safety.” To implement this prohibition, before approving a settlement the judge must review the case to determine whether there is evidence of a threat to public health or safety. If there is such a threat, the court cannot approve a settlement that includes a non-disclosure agreement. Last year the same bill was introduced in the state Assembly where it eventually died in the Judiciary Committee. Grisanti hopes by introducing the bill in the Senate that it has more of a chance to move forward.
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For the last few years Senator Lautenberg (D-NJ) has been leading the charge to reform the Toxic Substances Control Act (TSCA) and he has introduced a bill once again that would do just that. The “Safe Chemicals Act of 2013” would modernize TSCA and give the Environmental Protection Agency (EPA) the necessary tools to assess and manage chemicals. The legislation is identical to that which passed the Senate Environmental and Public Works (EPW) Committee last year. Highlights of the bill include allowing EPA to secure health and safety information for new and existing chemicals, while avoiding duplicative testing, require risk management of chemicals that cannot be proven safe, establish a public database to detail the health and safety information submitted by chemical manufacturers, and to promote innovation and development of safe chemical alternatives. The legislation already has 28 cosponsors.
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The Environmental Protection Agency (EPA) had a deadline of April 13 to impose the first-ever greenhouse gas limits on new power plants, but they did not finalize the proposal on time. EPA is in the process of altering the rule to make sure it can withstand any legal challenges that may come its way. The rule if implemented as it was written would require new power plants to emit no more than 1,000 pounds of carbon dioxide per megawatt hour of electricity produced. EPA is debating the possibility of establishing separate standards for coal-fired power plants and gas-fired power plants. There is no timetable for when EPA will announce their next move.
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Pacific Legal Foundation filed a lawsuit today in the Superior Court of California County of Sacramento challenging California’s cap-and-trade auction. The suit was filed on behalf of a broad group of California businesses, trade associations and individuals, who believe the auction process acts as an unconstitutional tax because it was not enacted by two-thirds majorities in both chambers of the California Legislature, which is required by the California Constitution. The lawsuit states that the California Air Resources Board (CARB) instituted the auction as a plan to raise billions of dollars in revenue without direction from the Legislature. They argue, if citizens and corporations must obey the state Constitution, shouldn’t an agency of the California government?
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A superior court in Alameda County invalidated a streamlining provision of the California Environmental Quality Act (CEQA), holding the provision is unconstitutional for requiring that a petition for writ relief be filed in a court of appeal. The court held the provision impermissibly restricts the original jurisdiction of the superior courts and the Supreme Court. In 2011, Public Resources Code section 21185 was enacted to provide streamlined CEQA review for qualifying “environmental leadership” projects. These projects include clean renewable energy projects, clean energy manufacturing projects, and residential, retail, commercial, sports, cultural, entertainment, or recreational use projects located on infill sites that are certified as LEED silver or better. Two projects have already been approved under Section 21185 - an Apple campus in Cupertino and the McCoy Solar Energy Project in Riverside. Specifically, Judge Frank Roesch held that “[t]he California Constitution does not grant the legislature any authority over CEQA or environmental reviews that would support a departure from the general rule that the legislature cannot either limit or extend the constitutional jurisdiction of the courts.” The court further ordered that the State Controller be enjoined from spending funds to implement the jurisdictional restrictions. The court gave its ruling from the bench in Planning and Conservation League v. State of California on March 29, 2013, and issued its Statement of Decision on April 9, 2013.
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The California Department of Toxic Substances Control (DTSC) has released a revised text of the proposed Safer Consumer Products regulations. The revised regulations impact the process for identifying and prioritizing consumer products and their chemicals of concern, how to evaluate alternatives, and imposing regulatory responses. DTSC also revised the regulations last month, which we blogged about here. With the new revisions comes a 15 day comment period which is now open, and all comments must be received by April 25, 2013.
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The Environmental Protection Agency (EPA) is adding new stakeholder input procedures to its pesticide registration review process and consultations under the Endangered Species Act (ESA), including a broader role for the U.S. Department of Agriculture (USDA). EPA released a paper discussing these changes entitled, “Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation Processes and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives.” The paper was put together by the EPA, the USDA, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS).
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The U.S. Environmental Protection Agency (EPA) announced it will begin assessments on 23 chemicals, with a focus on flame retardant chemicals. Of the 23 chemicals, 20 are flame retardant chemicals and are used in products such as furniture, textiles and electronic equipment. These assessments are part of the Toxic Substances Control Act (TSCA) Work Plan. Four of the flame retardants will receive a full risk assessment, three of which are on the TSCA Work Plan and one that was the subject of an Action Plan developed under TSCA. The chemicals are: 2-Ethylhexyl ester 2,3,4,5- tetrabromobenzoate (TBB); 1,2- Ethylhexyl 3,4,5,6-tetrabromo-benzenedicarboxylate or (2-ethylhexyl)-3,4,5,6 tetrabromophthalate (TBPH); Tris(2-chloroethyl) phosphate (TCEP); and Hexabromocyclododecane (HBCD). For more information on the TSCA Work Plan and risk assessments visit the EPA website.
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Rep. Cartwright (D-PA) introduced the “Focused Reduction of Effluence and Stormwater runoff through Hydrofracking Environmental Regulation” (FRESHER) Act on March 14, which would remove a provision in the Clean Water Act (CWA), added by the Energy Policy Act of 2005, that exempts oil and gas sites from stormwater permitting requirements. The exemption applies to all uncontaminated runoff from oil and gas sites of any acreage. The FRESHER Act, if passed, would also require the Department of Interior (DOI) to study the impact of stormwater from oil and gas sites on surface water, groundwater and drinking water.
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Today, the Department of Toxic Substances Control issued a 15-day notice to submit comments on: (1) nine new external scientific peer review reports; and (2) the California Environmental Policy Council resolution on the need for a multimedia life cycle evaluation adopted February 28, 2013. The public notice and associated documents can be accessed here. The public comment period will commence on March 13, 2013 and close on March 28, 2013.
Circulating these documents for review and comment appears to be DTSC’s final effort at bolstering the administrative record for the Safer Consumer Product Regulations rulemaking, and signals imminent adoption of the draft circulated for 30-day public comment on January 29, 2013. See our January 29, 2013 blog here. Notwithstanding, the release of these documents continues a disturbing trend toward procedural piecemealing (See our December 21, 2012 blog on this issue here, which makes it very difficult for anyone in the supply chain to understand what is truly at issue, or their rights with respect to any future challenge. Stay tuned…
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In 2008, the state of Washington adopted the Children’s Safe Product Act (CSPA). As part of that act, the Washington Department of Ecology (DOE) was tasked with developing draft regulations to implement the act. Under the regulations, companies “whose annual aggregate gross sales, both within and outside of Washington, are more than one billion dollars, based on the manufacturer's most recent tax year filing are required to report,” if their product includes a chemical on the state chemical of concern list. The first round of reporting data concluded in August of 2012. The second round of reporting data has now been concluded and it is now available through the Washington DOE site.
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The Interstate Chemicals Clearing House (IC2) has released a draft entitled, “Guidance for Alternatives Assessment and Risk Reduction.” IC2 consists of member states: California, Connecticut, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon and Washington. The draft defines an alternatives assessment (AA) as “a process for identifying and comparing potential chemical and nonchemical
alternatives that can be used as substitutes to replace chemicals or technologies of high concern. The purpose of the alternative assessment guidance on which the states are working is to address these issues from a product perspective although other uses are possible.” The document goes on to say that the object of an AA is to replace chemicals of concern (COCs) in products or processes with inherently safer alternatives in order to protect human health and the environment. The draft is open for public comment until Friday, April 19, 2013. For more information visit the IC2 website.
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Last Friday, companies filed a lawsuit to prevent California EPA from putting bisphenol A (BPA) on the state’s Proposition 65 list. The Prop 65 list is for chemicals that are potentially dangerous to human health. The American Chemistry Council (ACC) opposes an Office of Environmental Health Hazard Assessment (OEHHA) proposal that would include BPA on the list as a reproductive toxin. ACC believes OEHHA is trying to find a way to bypass a previous finding by scientific experts that reviewed the same evidence and concluded BPA should not be on the Prop 65 list. How could the agency ignore the advice of its own scientific panel and choose to do something different? And if the agency is going to do such a thing, how can companies trust decisions they have made previously or will make in the future? That is exactly what ACC wants the answers to and they are hopeful that this suit will answer them and thwart OEHHA’s attempt to list BPA on the Prop 65 list.
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In the last few months, the federal government has ramped up criminal enforcement actions against oil and gas drilling companies for violations of the Clean Water Act, and other environmental statutes. Alleged violations occurred in Ohio, Louisiana, North Dakota, Oklahoma, Texas and West Virginia.
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