Alston + Bird

5th Circuit Dismisses Claims GHGs Intensified Hurricane Katrina on Res Judicata Grounds

Fri, 17 May 2013 09:39:50 GMT

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.

2013 - The Year California Finally Reins in the Excesses and Abuses of Prop 65?

Tue, 07 May 2013 15:24:59 GMT

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.

Eight Substances Added to EU’s Authorization List; Possible Impact Under California‘s SCP Regulations

Mon, 06 May 2013 17:53:55 GMT

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.

New Chemical Testing Requirements for Toys Going into Effect in the EU

Thu, 25 Apr 2013 14:11:25 GMT

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.

CalEnviroScreen Version 1 Released

Tue, 23 Apr 2013 14:13:46 GMT

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.

New York Bill Would Prohibit Confidential Hydraulic Fracturing Settlements

Mon, 22 Apr 2013 12:04:55 GMT

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.

Senator Lautenberg Introduces Safe Chemicals Act

Thu, 18 Apr 2013 12:45:17 GMT

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.

EPA Delays Greenhouse Gas Rule on New Power Plants

Thu, 18 Apr 2013 12:35:06 GMT

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.

Lawsuit Challenges California’s “Cap-and-Trade” Auction As Unconstitutional

Tue, 16 Apr 2013 16:08:39 GMT

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?

Superior Court Invalidates CEQA’s Fast-Tracking Provision as Unconstitutional

Fri, 12 Apr 2013 10:08:43 GMT

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.

DTSC Revises Safer Consumer Product Regulations

Thu, 11 Apr 2013 09:56:00 GMT

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.

Pesticide Registration Process Adds New Stakeholder Procedures for Endangered Species Act Consultations

Thu, 28 Mar 2013 15:59:01 GMT

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).

EPA Announces Chemicals for Risk Assessment in 2013

Wed, 27 Mar 2013 14:41:25 GMT

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.

Two Hydraulic Fracturing Related Bills Introduced

Mon, 25 Mar 2013 12:12:10 GMT

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.

Race to the Finish Line: DTSC Releases 15-Day Notice For Documents Added To The Safer Consumer Product Regulations Rulemaking File

Thu, 14 Mar 2013 10:30:49 GMT

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…

Second Round of Reporting Data Available for Washington’s Children’s Safe Product Act

Mon, 11 Mar 2013 13:26:00 GMT

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.

IC2 Releases Draft Guidance for Alternatives Assessment & Risk Reduction

Thu, 07 Mar 2013 10:50:15 GMT

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.

Companies File Suit to Keep BPA off of California’s Prop 65 List

Thu, 07 Mar 2013 09:49:18 GMT

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.

Federal Government Stepping Up Criminal Enforcement Actions Against Oil and Gas Drilling Companies

Thu, 28 Feb 2013 15:17:17 GMT

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.

2013: Time to Prepare for Compliance with CA’s Safer Consumer Product Regulations, as published in the Environmental Leader, February 27, 2013

Wed, 27 Feb 2013 13:16:00 GMT

What do you need to be prepared for in the first 60 days?

2013 will mark the end of one struggle and the beginning of another in industry’s attempt to understand and prepare for the obligations and expectations for the design and manufacture of products sold in California.
Leading up to the formation of California’s Green Chemistry Initiative in early 2007 was an increasing volume of legislative proposals to ban chemicals and ingredients used in consumer products. The Initiative was supported by industry interested in moving the debate about the safety of chemicals to a regulatory agency staffed with scientists and resulting in decisions grounded on peer-review studies and sound science, not emotional arguments made in three minutes of testimony at a legislative hearing. Now, in 2013, industry is faced with compliance with 74 pages of regulations that fall far short of what was supported in 2008. It’s a giant paperwork morass with not a scintilla of science in sight.
To read the remainder of the article please click here.

Senator Lautenberg Announces Plans to Retire

Fri, 22 Feb 2013 09:51:28 GMT

Senator Frank Lautenberg (D-NJ) announced last week that he will be retiring at the end of his term next year. Sen. Lautenberg has been a driving force in the recent years in pushing for TSCA reform legislation and will continue the push this year. He plans to reintroduce his bill, the Safe Chemicals Act, which was approved by committee last year in the near future. Recent reports indicate that due to Sen. Vitter’s (R-LA) plan to introduce competing TSCA reform legislation targeted towards industry, that Sen. Lautenberg may be open to revising his bill before re-introducing it to answer some of the concerns that industry previously had with his bill. If he does so, while there are no guarantees, it could lead to some bi-partisan support for the bill.

Murkowski Releases Energy Blueprint

Thu, 07 Feb 2013 12:53:02 GMT

Earlier this week, Sen. Murkowski (R-AK) released an energy blueprint, entitled “Energy 2020.” The blueprint was developed with seven principles in mind: producing more, consuming less, clean energy technology, energy delivery infrastructure, effective government, environmental responsibility, and an energy policy that pays for itself. Murkowski believes this can be done with more oil and gas production, reducing carbon emissions, and the development of a “trust fund” for clean energy. Her hope is the blueprint could serve as a basis for starting a comprehensive energy discussion in Congress, which may result in a number of small, bipartisan energy bills this year.

DTSC Issues 30 Day Comment Period Notice for Revised Consumer Products Regulations

Tue, 29 Jan 2013 16:19:50 GMT

The Department of Toxic Substances Control (DTSC) has issued a 30-day notice to submit comments on proposed revisions to its Safer Consumer Products Regulation. The changes establish the process for identifying and prioritizing consumer products and their chemicals of concern, evaluating alternatives and imposing regulatory responses. As mentioned in our advisory, the revised text will be open for public comment until February 28, 2013. A summary of the significant changes to the regulations can be found here. At first glance, some positive changes in this latest draft include elimination of the requirement to employ certified assessors to perform the regulatory work, introduction of the distinction between contaminants and intentionally-added chemicals found in consumer products, and establishment of a PQL (practical quantitation limit) as the analytical chemistry threshold for determining whether compliance obligations are triggered.

Court of Appeals Not to Take up CSAPR Challenge

Tue, 29 Jan 2013 09:30:22 GMT

Last week, the U.S. Court of Appeals for the District of Columbia declined to grant a rehearing of EME Homer City Generation LP v. EPA, a case that challenged EPA’s Cross-State Air Pollution Rule (CSAPR). The court, in a 2-1 ruling in August, vacated the CSAPR. The court stated that EPA was exceeding its statutory authority, as the agency should allow states to develop their own rules to address emissions and CSAPR could have required states to account for more emissions than necessary. EPA hoped to challenge the ruling of the court and asked for an en banc hearing, so that the case could be heard before all eight of the circuit’s judges. However, a majority of the judges voted against the request, so the court will not rehear the case. The question now is whether EPA will take its challenge to the Supreme Court.

Obama Pushes Climate Change In Inaugural Address

Wed, 23 Jan 2013 10:55:54 GMT

President Obama called for the United States to step up and be a leader as the world transitions towards new energy technologies to help combat climate change during his inaugural address earlier this week. Obama hoped to have climate legislation passed during his first term, but was unsuccessful with his push. So he and his administration will make another effort to push for climate change legislation and regulations in his second term. He said, “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.” He went onto say that fighting climate change is not a choice, but rather an obligation and that the obligation can be met with the development of new, cleaner energy technologies.

U.S. Supreme Court Holds Flow from One Part to Another of Same Waterway is Not a Discharge under the CWA

Wed, 09 Jan 2013 14:24:48 GMT

In a 9-0 decision in favor of the Los Angeles County Flood Control District (the District), the U.S. Supreme Court reversed an opinion from the 9th Circuit yesterday, holding water flowing from an improved segment of a navigable waterway into an unimproved segment of the same waterway does not constitute a “discharge of a pollutant” under the Clean Water Act.

Public Comments on External Scientific Peer Review (ESPR) on Safer Consumer Products Regulations Now Available

Wed, 09 Jan 2013 11:56:46 GMT

The California Department of Toxic Substances Control (DTSC) has published public comments submitted regarding the External Scientific Peer Review (ESPR) on the Safer Consumer Product Regulations. In total 14 comments were submitted. Those that commented are the American Chemistry Council, American Cleaning Institute, American Forest & Paper Association, Amway, CA Council Environmental & Economic Balance, CA Industrial Hygiene Council, CHANGE, Consumer Specialty Products Association, the European Union, Grocery Manufacturers Association, Rubber Manufacturers Association, SNR Denton, Unifrax and the Western States Petroleum Association.

Electronic Waste Recycling Prosecution Highlights Calls for Stricter Regulations

Tue, 08 Jan 2013 13:37:17 GMT

Illustrating a rare example of criminal enforcement under electronic waste (e-waste) regulations, the U.S. Attorney in the federal district of Colorado has successfully prosecuted a recycling business called Executive Recycling for allegedly exporting e-waste containing lead to foreign countries, including China. On December 21, 2012, a jury found Executive Recycling, its CEO, and Vice President of Operations guilty on several counts, including exporting glass video display components known as Cathode Ray Tubes (CRTs), often found in TV monitors and computers, in violation of the Resource Conservation and Recovery Act (RCRA) and Colorado’s authorized hazardous waste program. Defendants are scheduled to be sentenced in April, but plan to appeal the jury verdict.

Second Draft Released of CalEnviroScreen

Mon, 07 Jan 2013 15:16:02 GMT

The California EPA, along with the Office of Environmental Health Hazard Assessment (OEHHA) has released the second public review draft of the California Communities Environmental Health Screening Tool, otherwise known as CalEnviroScreen. The updated draft CalEnviroScreen focuses on “an updated screening methodology to identify California communities that are disproportionately burdened by multiple sources of pollution,” and presents statewide results and analysis according to the OEHHA website.

A summary of the major proposed revisions from the original version can be found here. As we have previously blogged here, the potential uses of this tool are unclear. Many are concerned that the tool could be used by NIMBYs to prevent development and projects throughout California.

Written by Maureen Gorsen, Partner, Alston & Bird LLP | Follow us on Twitter

EPA Releases Drafts of the First Five Work Plan Chemical Risk Assessments

Fri, 04 Jan 2013 16:02:09 GMT

EPA signed a Federal Register Notice today, which announced that the drafts for the first five Work Plan Chemical risk assessment are now available. The five assessments that are available are for antimony trioxide (ATO), HHCB, methylene chloride (DCM), n-methylpyrrolidone (NMP), and trichloroethylene (TCE).

ATO is a compound used primarily as a synergist for flame retardants and as a catalyst for polyethylene terephthalate (PET) plastics. The risk assessment examined the potential ecological hazards that may come from ATO’s use in flame retardants and found the risks to be negligible. ATO’s human health risks from its use in flame retardants, has already been evaluated and presents minimal concerns. ATO’s use in plastics was not evaluated in the draft risk assessment.

Piecemealing Public Comment: DTSC Proposes Cascading Sets of Reviews of Various Pieces of Its Proposal to Regulate World Commerce

Fri, 21 Dec 2012 10:14:25 GMT

In its quest to regulate the global supply chain for over 3,000 ingredients in products sold in California, the California Environmental Protection Agency’s Department of Toxic Substances Control is making it very difficult for anyone in that supply chain to understand how they may be affected by the proposed rules and precluding effective public comment. In its latest piecemealing activity, the California government has released a revised initial statement of reasons, or ISOR, for public comment on December 20, 2012 with comments due by January 22, 2013. See notice here. Only three weeks ago on November 30, 2012, it released a set of 10 scientific peer review documents and requested comment by January 4, 2013. See notice here. The revised draft regulations are expected to be released on January 2, 2013 and the public is likely to be required to provide comment in cascading form in another three weeks. This pattern of piecemealing parts of this ambitious regulatory proposal has been ongoing for years, and as we have previously blogged, has a questionable legal foundation (see here).

This procedural piecemealing effectively denies the public due process of law, and is compounded by the fact the draft regulations released on July 27th (see here) do little more than provide an outline for procedure that the agency intends to follow, while disclosing almost none of the substance of what product manufacturers, importers, and retailers, will have to face – further diluting the ability of impacted parties to meaningfully participate in the process.

Merry Christmas world. California’s gift is coal in our stockings.

Written by Maureen Gorsen, Partner, Alston & Bird LLP | Follow us on Twitter

EPA and CPSC Collaborate on Nanomaterials

Thu, 13 Dec 2012 10:14:04 GMT

The U.S. Environmental Protection Agency (EPA) and the U.S. Consumer Product Safety Commission (CPSC) have agreed to a collaborative effort for worldwide research to determine any potential impacts nanomaterials have on health and the environment. Nanomaterials are present in a number of household products. Dr. Tina Bahadori, national program director for EPA’s Chemical Safety for Sustainability Research said in a statement, “Nanotechnology and nanomaterials used in the development of these products improve our everyday lives, but it is important that we understand how humans are exposed to nanomaterials and to assess the risks they may pose to people’s health and the environment.”

Senator Vitter Working on TSCA Reform Bill

Thu, 13 Dec 2012 09:53:59 GMT

Sen. David Vitter (R-LA) is working on a Toxic Substances Control Act (TSCA) reform bill, which he hopes to introduce in the early part of 2013. The senator would need to have bi-partisan support for the bill to move forward, as all indications point to Sen. Lautenberg (D-NJ)plans to reintroduce his TSCA reform legislation next year, that was approved by the Senate Environment and Public Works Committee earlier this year. Vitter will likely need Lautenberg’s support of his bill if he wants it to move forward, because without his support it is unlikely other democrats would support Vitter’s bill. Sen. Vitter’s bill is likely to be heavily driven by industry’s input, which will be a stark contrast to Sen. Lautenberg’s bill. It will be up to Vitter and his staff to find that fine line to attract bi-partisan support needed for the bill to move forward next year.

DTSC Adds Ten Peer Review Reports to Safer Consumer Products Rulemaking

Mon, 10 Dec 2012 12:28:50 GMT

The California Department of Toxic Substances Control published a notice announcing they have added ten external scientific peer review reports to the Safer Consumer Product rulemaking. The ten peer review reports can be found here. The reports are an evaluation of the scientific basis of the regulations. The public comment period began on November 30, 2012 and will conclude at 5 p.m. on January 4, 2013. There has been a request to extend the comment period until the end of January, 2013; however there has been no decision made. The next set of regulations is expected to be published on December 21st.

Prop 39 - Like Green Chemistry, California Continues in its Quest to Regulate and Tax Products Sold in State

Thu, 15 Nov 2012 12:55:56 GMT

This advisory discusses the recently approved Proposition 39, a California ballot initiative that requires corporations conducting a multistate business to apportion their income using a single-sales factor apportionment formula beginning January 1, 2013. Two other recent developments in California raise significant questions regarding the effectiveness of Proposition 39’s single-sales factor apportionment requirement. In Gillette Co. v. Franchise Tax Board, the Court of Appeal of California held that a corporate taxpayer could elect to apportion its income using either the statutory formula or the equally weighted, three-factor Multistate Tax Compact formula. The California Assembly attempted to eliminate that election by enacting legislation, SB 1015, shortly before Gillette was issued. However, there are serious concerns regarding the validity of that legislation. It therefore remains to be seen whether corporate taxpayers will indeed be required to apportion their income in accordance with Proposition 39 or may instead elect to apportion under the Compact’s equally weighted, three-factor formula.

California Chamber of Commerce Files Suit Against CARB

Wed, 14 Nov 2012 10:16:31 GMT

The California Chamber of Commerce filed suit against the California Air Resources Board (CARB) in a last minute effort to thwart the state's greenhouse gas auction. The Chamber says that the auction is essentially an “unconstitutional tax” on businesses that are impacted by AB32, the state’s global warming law. The Chamber says in their suit that AB32 “does not expressly authorize ARB to impose any fees/taxes other than a minor administrative fee.” They believe that if the state legislature wants to give CARB the power to enact such a tax they can do so through passing new legislation. The carbon emission credits auction will take place today.

Draft California Communities Environmental Health Screening Tool: Counterproductive to CEQA Reform?

Wed, 14 Nov 2012 10:12:46 GMT

Release of a new draft of California’s “CalEnviroScreen” is expected before the end of 2012. Being developed by the Office of Environmental Health and Hazard Assessment (OEHHA) with the California Environmental Protection Agency (Cal/EPA) , CalEnviroScreen is a tool to create “scores” for communities based on environmental, health and socioeconomic data, such as asthma rates, low birth weight infants, traffic density, and educational attainment levels. The tool will allow for assessment of disproportionate environmental impacts in disadvantaged communities. The uses of the tool appear to be open-ended at this point, from helping Cal/EPA prioritize its own internal resources for distribution of grants and prioritizing clean up sites, to being a tool that project proponents and local governments may use in land use decisions and in CEQA documents, particularly in a cumulative impacts assessment.

Manufacturers of Automotive Parts, Musical Instruments, Flooring, Tub/Shower Units and Sports Equipment Take Note: You May Need to Add a Prop 65 Label to Your Products as Two Chemicals Added to California Prop 65 List

Mon, 05 Nov 2012 16:11:01 GMT

The California Office of Environment Health Hazard Assessment announced they have added two chemicals known to cause cancer to the Prop 65 list. Alpha-methylstyrene (CAS No. 98-83-9) and 1,3-dinitropyrene (CAS No. 75321-20-9) have been added to the list effective November 2, 2012. The listing was carried out via a mechanism in the Labor Code based up on IARC 2B listing.

Chemicals Must be Known to Cause Cancer to be Listed under California’s Prop 65

Fri, 02 Nov 2012 12:52:16 GMT

The California Court of Appeals of the Third Appellate District held on Wednesday chemicals that fall under Proposition 65’s coverage must be known to cause cancer or reproductive toxicity. Proposition 65 (“Prop 65”) prohibits businesses form discharging chemicals known to the state to cause cancer or reproductive toxicity into drinking water and requires businesses to warn the public if they knowingly and intentionally expose individuals to such chemicals.

Public Comments on California Safer Consumer Products Regulations Posted

Wed, 24 Oct 2012 16:57:59 GMT

The California Department of Toxic Substance Control (DTSC) has published the written comments they received on their Green Chemistry Safer Consumer Product Regulations. The regulations were open to comment from late July, 2012 until October 11, 2012. In all, DTSC received thousands of pages of comments, attachments, and redlines but was only able to post 1120 pages worth of the comments on their website. Among those to submit comment on the regulations were the American Chemistry Council, the Alliance of Automobile Manufactures, BASF, CA Department of Public Health, Dow Chemical Company, the European Union, the Japanese Government, the Sierra Club, a number of concerned citizens and many others. In an effort to help highlight common themes expressed in the comments we are working on a detailed review. Our review will be published on our green chemistry page in the coming days.

AB32 Implementation Group Requests Delay of GHG Auction

Tue, 23 Oct 2012 13:32:04 GMT

The AB32 Implementation Group (AB32IG) sent a letter to California Governor Brown requesting that the cap-and-trade program and first allowance auction scheduled for November 14, 2012 be delayed. AB32IG had hoped CARB would address some of their concerns at the September board meeting, however CARB failed to do so. The letter requests that Gov. Brown step in to protect the state’s economy; and states that the independent Legislative Analyst’s Office confirmed that the auctioning of allowances is not necessary to reach the state’s greenhouse gas reduction goals set forth in AB32. Part of the letter reads, “CARB’s requirement to buy allowances will impose high and unnecessary costs on California businesses, threatening jobs and tax revenues in the state.” It continues to say that consumers will be impacted by higher costs of fuel, utilities, food and other essential services. So far the Governor has yet to respond to AB32IG’s letter.

EPA’s DfE Program Publishes Safer Chemical Ingredients List

Mon, 08 Oct 2012 11:18:38 GMT

The EPA’s Design for the Environment (DfE) Program recently published its Safer Chemical Ingredients List. The DfE list will complement the CleanGredients database, which includes trade name chemicals, physical-chemical and functional properties, hazard information, and vendor contacts. The list only includes chemicals in products that have been voluntarily submitted for evaluation to DfE, which means there may be chemicals that are not on the list that are safer. Products can only use the DfE logo if they go through the formal DfE review, meeting both ingredient and product-level DfE criteria, and enter a partnership agreement with the EPA.

The FTC’s Green Marketing Guides – Final Revisions

Tue, 02 Oct 2012 14:38:30 GMT

As consumers have become more environmentally conscious, manufacturers have increasingly used environmental benefit marketing claims to promote sales of their products. The Federal Trade Commission (FTC) has created guidelines, known as the Green Guides, to aid marketers in properly utilizing environmental benefit claims, out of concern that consumers’ perceived environmental benefit may exceed the actual environmental benefit provided by the manufacturer. On October 1, 2012, the FTC released its final revisions to its Green Guides after a multiyear investigatory process, which included reviewing comments submitted by companies, trade organizations, government entities and individuals. This advisory outlines the major changes contained within the final revisions to the Green Guides.

The advisory is provided in PDF on the Alston & Bird website:
http://www.alston.com/advisories/products-liability-ftc-green-marketing-guides

The FTC’s Revised Green Guides Available October 1, 2012

Sun, 30 Sep 2012 11:01:49 GMT

The Federal Trade Commission will announce final revisions to its “Green Guides” on October 1, 2012. The Green Guides seek to help marketers avoid making deceptive marketing and advertising claims by outlining general principles that apply to all environmental marketing claims, as well as provide specific guidance about how consumers are likely to interpret particular claims. As part of releasing the final revisions to the Green Guides, Jon Leibovwitz, the FTC Chairman, will hold a phone-in media briefing at noon. The Green Guides were last revised in 1998, with proposed revisions issued for public comment in October 2010.

When proposed revisions were issued in October 2010, the revisions focused on three topics: (1) revisions to previously established Green Guide provisions; (2) entirely new Green Guide provisions; and (3) matters for which the FTC has declined to provide guidance. The common thread throughout these topics is the FTC’s desire to encourage more specificity in marketers’ claims to avoid causing confusion to consumers. While not having the force of law, the Green Guides provide guidance to the public on how to avoid false or misleading environmental marketing claims in violation of Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices.

Manufacturers and marketers should note the FTC’s final revisions to the Green Guides and beginning the process of evaluating and updating current marketing claims. For more general information on the agency’s modifications visit the FTC’s dedicated “green” website at http://www.ftc.gov/green.

Congress Approves Pesticide Fee Program

Thu, 20 Sep 2012 13:59:34 GMT

The Senate and House both passed the “Pesticide Registration Improvement Renewal Act” (PRIA3) last week as the expiration date for the program was fast approaching. Both chambers passed the bill by unanimous consent, after some in industry expressed concern that the bill would not make it to a vote in the Senate before the September 30th expiration. PRIA establishes a fee schedule and a regular time table for pesticide registration and provides funding to the Office of Pesticide Programs (OPP). PRIA3 includes changes from the previous versions including changes to decision making time frames for labels (allowing a 30-day period after issuance of a label for registrants to discuss label changes with EPA) and a new tracking program for species data collection that should allow the agency to better comply with the Endangered Species Act. The bill would also add some new categories of chemicals, with a guaranteed timeline for EPA’s review. The bill will become law once signed by President Obama.

EPA Considering Safe Harbor for Renewable Biofuel Purchasers

Mon, 27 Aug 2012 09:37:52 GMT

In the wake of a recent spate of RIN fraud cases involving a reported 140 million invalid RIN (renewable identification number) credits, EPA is considering revisions to the Renewable Fuels Standard (RFS2) program that would provide greater clarity for obligated parties (oil companies that refine and import gasoline and diesel). Although EPA has taken aggressive enforcement action against fraudulent RIN producers, EPA's current "buyer beware" policy also penalizes oil companies that are victims of RIN fraud by imposing civil penalties and requiring replacement of fraudulent RINs, thus adding insult to injury.

California Issues Notice For Proposed Regulations That Would Amend CEQA

Fri, 24 Aug 2012 11:29:14 GMT

The California Natural Resources Agency issued a notice for proposed regulations that would amend the California Environmental Quality Act(CEQA) to streamline environmental review for qualifying infill projects. The objective of the regulations is to “streamline the environmental review process for eligible infill projects by limiting the topics subject to review at the project level where the effects of infill development have been addressed in a planning level decision or by uniformly applicable development policies.”

U.S. Court of Appeals Throws Out Cross-State Air Pollution Rule

Wed, 22 Aug 2012 11:26:20 GMT

The U.S. Court of Appeals for the District of Columbia Circuit ruled today by a 2-1 margin that EPA’s Cross-State Air Pollution Rule (CSAPR) exceeded EPA’s statutory authority. CSAPR was to put a limit on sulfur dioxide emissions in 28 states, but the court issued a last minute stay at the end of 2011 before the rule went into effect.

EPA Releases Final Rule for Air Standards for Hydraulic Fracturing Operations

Mon, 20 Aug 2012 13:43:25 GMT

EPA published the final rule, “Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews,” last week. The rule, which was finalized in April, and we blogged about here, sets the first air pollution standards for hydraulic fracturing operations. For hydraulic fracturing, the rule will require owners/operators to use reduced emissions completions, also known as RECs, and a completion combustion device to reduce VOC emissions beginning on January 1, 2015. Up until January 1, 2015 owners/operators may flare gas to reduce emissions. The new rule not only addresses hydraulic fracturing, it also includes performance standards for other modified oil and gas operations, such as centrifugal compressors, storage vessels, and pneumatic controllers. The final rule is effective on October 15, 2012.

California DTSC Extends Comment Period for Proposed Safer Consumer Product Regulations

Mon, 20 Aug 2012 12:21:30 GMT

The California Department of Toxic Substances Control(DTSC) has announced a 30 day extension for the comment period on their proposed Safer Consumer Product regulations. The proposed regulations were released in late July and we blogged about them here. The new deadline for submitting comments is 5 p.m. on October 11, 2012. The public hearing on September 10, 2012 will take place as scheduled.

California Proposes Regulations for Mercury-filled Thermostats

Mon, 20 Aug 2012 10:55:52 GMT

The California Department of Toxic Substances Control(DTSC) released proposed regulations, which “establish performance goals for the collection and recycling of used thermostats containing toxic mercury,” according to a DTSC press release. In 2006 California banned the sale of new mercury-added thermostats, but there are still millions of them in use. These regulations would require manufactures to collect and recycle over 65,000 mercury containing thermostats in 2013. Recycling goals would increase until 2017, when the state would have a goal of 75% collection and recycling rate, which would be an estimated 147,000 thermostats. As part of the proposed regulations, manufacturers who formerly sold mercury thermostats would be required to meet the recycling goals of the Thermostat Recycling Corporation(TRC), either through participation or joining a similar program.

Species Review Plan Proposed by EPA and Other Agencies

Thu, 16 Aug 2012 12:16:09 GMT

The EPA, Department of Agriculture, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service have released a draft proposal entitled, “Proposal for Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation Process and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives.” The proposal emphasizes coordination across federal agencies for pesticide reviews, and expands the role of the USDA and the pesticide user community to provide current pesticide use information to inform and refine EPA’s ecological risk assessments. It would also alter the pesticide registration process as it calls for “focus” meetings at the beginning of the registration review for each pesticide in order to clarify current uses and label directions and requires formal ESA consultations later in the review process. The draft plan will be open for public comment for 60 days upon publication in the Federal Register.

Follow Us on Twitter

Mon, 30 Jul 2012 14:50:49 GMT

Just a reminder to follow us on twitter @AlstonEnviro.

California Releases Proposed Green Chemistry or Safer Consumer Product Regulations

Fri, 27 Jul 2012 15:28:18 GMT

Today, the California Department of Toxic Substance Control (DTSC) released their proposed “Safer Consumer Product Regulations.” The proposed regulations have narrowed down the set of applicable chemicals to 1200, down from the recent 3000. Included in this draft, the DTSC announced that they will only select 5 products to go through this onerous regulatory process in the first work plan. How they will select the 5 products remains unclear, but they will be selected within 6 months of the effective date of the regulations.

BLM and DOE Release Final PEIS For Solar Energy Zones And Environmental Guidance Designed To Encourage Development Of Solar Energy Facilities

Thu, 26 Jul 2012 14:52:16 GMT

On Tuesday, the Bureau of Land Management (BLM) and the Department of Energy (DOE) jointly released a Final Solar Energy Development Programmatic Environmental Impact Statement (Solar PEIS) for a new program to facilitate development of utility-scale solar energy production on lands owned by the Federal government. The Solar PEIS identifies 17 Solar Energy Zones (SEZs) totaling about 285,000 acres in six western States (California, Nevada, Arizona, Utah, New Mexico and Colorado) as priority areas for utility-scale solar development because they have excellent solar resources, are close to transmission lines and would not create substantial conflicts with natural resources. The Solar PEIS also identifies other “variance” areas where such projects might be considered areas excluded due to environmental concerns. It also establishes a series of best management practices and mitigation measures likely to be imposed by BLM and DOE on all solar projects approved or financed in part by those agencies.

Senate Committee Approves TSCA Reform Bill

Wed, 25 Jul 2012 15:20:17 GMT

Today, the Senate Environment and Public Works Committee approved Sen. Frank Lautenberg’s(D-NJ) “Safe Chemicals Act,” by a 10-8 margin in a partisan voice vote as we said would happen In yesterday’s blog. The 170 page substitute amendment that was approved would “require manufacturers to develop and submit safety data for each chemical they produce, while avoiding duplicative or unnecessary testing. “ It would prioritize chemicals based on risk, place the burden of proof on manufacturers to determine the safety of their chemicals, promote innovation and development of safer alternatives, and it would restrict the use of chemicals that cannot be proven safe according to a press release from Sen. Lautenberg’s office. While the bill’s approval by the committee provides a historic step in TSCA reform, it is unlikely to become law by the end of the year unless major compromises are reached between the parties.

Senate Committee Set to Hold Markup on TSCA Reform Legislation Tomorrow

Tue, 24 Jul 2012 16:19:10 GMT

The Senate Environment and Public Works(EPW) Committee is set to hold a markup tomorrow on Sen. Lautenberg’s “Safe Chemicals Act” legislation. S. 847, would reform the 1976 Toxic Substances Control Act(TSCA), which has yet to be reformed since it became law. The bill gives EPA broader authority to require any data so that it can more easily determine the safety of chemicals. It would make the EPA block chemicals that are deemed high risk to the public.

FDA Announces Ban on BPA in Infant-Feeding Products, While Representative Markey Files Petition for FDA to ban BPA Use in Packaging for Infant Formula

Fri, 20 Jul 2012 16:58:29 GMT

The Food and Drug Administration (FDA) has completed its review of a petition filed by the American Chemistry Council (ACC) and announced a ban of bisphenol A (BPA) in infant-feeding products, such as baby bottles and children’s sippy cups. Most manufacturers of these products in the United States have already removed BPA, but the final rule, which amends FDA’s food additive regulations, provides certainty according to the ACC. Steven G. Hentges, Ph.D., of the Polycarbonate/BPA Global Group of ACC said, “FDA action on this request now provides certainty that BPA is not used to make the baby bottles and sippy cups on store shelves, either today or in the future.”

Recent State Agency Actions in Maine, Oregon and Washington to Regulate Consumer Product Ingredients

Fri, 20 Jul 2012 15:40:23 GMT

The state of Washington’s Department of Ecology has proposed an amendment to its Children’s Safe Products Reporting Rule. The amendment would add tris(1,3-dichloro-2-propyl)phosphate(TDCPP)(CAS #13674-87-8) to its chemical of high concern to children(CHCC) list. TRIS is a flame retardant, and is on other state’s chemicals of concern lists. The amended rulemaking was initiated in response to a petition filed to add TDCPP to the CHCC list. The Department of Ecology’s Director decided to proceed with this rule making based on two pieces of criteria:

Maine Releases Chemicals of High Concern List

Fri, 13 Jul 2012 13:02:58 GMT

The Maine Department of Environmental Protection(DEP) met a deadline set by the legislature to release a list of chemicals of high concern by July 1, 2012. The list was put together by Maine’s DEP, the Maine Department of Health and Human Services(HHS) and the Maine Center for Disease Control and Prevention(CDC). According to the DEP website, chemicals already listed on Maine’s chemical of concern list maybe included on the chemicals of high concern list if, “there is a determination of strong, credible scientific evidence that the chemical is a reproductive or developmental toxicant, endocrine disruptor or human carcinogen, and there is strong, credible scientific evidence that the chemical meets one or more of the following criteria:

Bipartisan Support in Senate For Restrictions on PBDEs

Wed, 11 Jul 2012 15:01:24 GMT

A group of 25 senators sent a letter to EPA administrator Lisa Jackson in support of the Environmental Protection Agency’s(EPA) efforts to address polybrominated diphenyl ethers(PBDEs). The letter, sent by a bipartisan group of senators, says the EPA should “move forward as quickly as possible with its current efforts to protect American families from the toxic effects of PBDEs.” PBDEs are flame retardant chemicals that are found in everyday consumer products, such as furniture, baby products, and plastics. The EPA suspects that PBDEs cause cancer, and they “have been linked to serious neurological and reproductive diseases,” according to the letter from the senators.

First Reporting Cycle Fast Approaching for Washington’s Children’s Safe Product Reporting Rule

Mon, 02 Jul 2012 10:17:15 GMT

The Children’s Safe Product Act(CSPA) of the state of Washington consists of two parts. The first part limits the amount of lead, cadmium and phthalates allowed in children’s products sold in Washington after July 1, 2009 and the second part requires the Department of Ecology to work with Department of Health to develop a list of chemicals that manufacturers must report.

South Coast Air Quality Management District Victorious In Lawsuit Over Whether Best Available Retrofit Technology Need Actually Be “Available”

Wed, 27 Jun 2012 16:02:46 GMT

On June 25, 2012, the Supreme Court issued its decision in American Coatings Association, Inc. v. South Coast Air Quality Management District, 2012 Cal. LEXIS 155822. The decision centered on 2002 amendments to the South Coast Air Quality Management District’s (SCAQMD’s) Rule 1113, which limited certain pollution-causing substances in paints and coatings. At the time the amendments were adopted, emissions from architectural coatings in the South Coast Air Basin were larger than those generated by the entire refinery community, the furniture manufacturing industry and the aerospace industry combined. As such, the amendments were intended to force innovative technology and assist the SCAQMD in meeting federal ozone standards, by substantially reducing the VOC emissions generated by architectural coatings in the District.

Eleventh Circuit Limits Recovery of Attorneys’ Fees in Clean Water Act Citizen Suits

Tue, 26 Jun 2012 15:36:11 GMT

The United States Court of Appeals for the Eleventh Circuit recently issued a decision limiting the ability of plaintiffs to recover attorneys’ fees under the Clean Water Act when their trial court victory is mooted by new regulations. In the case before the Eleventh Circuit, Friends of the Everglades v. South Florida Water Management District, No. 11-15053, plaintiffs sued to require the water management district to obtain a NPDES permit before transferring allegedly polluted canal water into Lake Okeechobee. The district court issued an injunction in plaintiffs’ favor, which the water management district appealed. While the appeal was pending, EPA issued a new rule that confirmed NPDES permits are not required for water transfers such as the one at issue here. Also during the pendency of the appeal, one of the plaintiffs filed a motion for attorneys’ fees pursuant to the Clean Water Act

Court of Appeals Upholds EPA GHG Emissions Rules

Tue, 26 Jun 2012 12:17:47 GMT

Today, the U.S. Court of Appeals for the District of Columbia Circuit Court issued its decision on industry petitions concerning the Environmental Protection Agency’s(EPA) rules limiting greenhouse gas emissions. The main focus of the suit was on EPA’s “tailoring” rule, which requires only major polluters to obtain permits for their greenhouse gas emissions. The three judge panel denied this challenge from industry groups. The judges also dismissed all petition for EPA’s “tailpipe” rule, which set standards for cars and light-duty trucks beginning in the 2012 model year; and the “timing” rule, which focused on limiting greenhouse gas emissions from stationary sources. The decision by the court resulted in a victory for the EPA and the Obama administration and is a big blow to a number of industry groups.

Supreme Court Opinion in Southern Union Changes Burden of Proof for Imposition of Criminal Fines

Tue, 26 Jun 2012 10:33:54 GMT

On Thursday, the Supreme Court issued its decision in the case Southern Union Co. v. United States, 567 U.S. __ (2012), holding that the Sixth Amendment right to a jury trial requires juries — not judges — to decide the facts warranting a fine that exceeds a statutory maximum of any crime for which a defendant is convicted. This case has significant implications for corporations charged with white collar crimes, as many such crimes include statutory provisions similar to the one at issue in Southern Union that allowed for fines based “per day of violation.” The holding will also implicate fines imposed under the Alternative Fines Act (AFA), which allows fines above the statutory maximum in amounts equal to twice the economic gain or loss of the offense of conviction. 18 U.S.C. § 3571(d). Under either of these provisions, a corporation can be subject to millions — if not billions — of dollars in fines, even though the statute under which it was convicted may be capped at $1 million or less.

Chemicals Added to Prop 65 List: Alert to Makers of Nail Polish, Body Wash, Shampoo, Cosmetics, Epoxy, Agrochemicals

Fri, 22 Jun 2012 16:29:15 GMT

Today, the California Office of Environmental Health Hazard Assessment(OEHHA) announced it has added four chemicals to the Proposition 65 list. The four chemicals added to the list are: benzophenone (CAS No. 119-61-9), coconut oil diethanolamine condensate (cocamide diethanolamine) (CAS No. 68603-42-9), diethanolamine (CAS No. 111-42-2), and 2-methylimidazole (CAS No. 693-98-1). The effective date of the addition of these chemicals to the list is today, June 22, 2012. These chemicals are known carcinogens and are included in a number of products including nail polish, bath and body wash, shampoo, lipstick, facial cleanser, bubble bath, epoxy and some agrochemicals.

California Governor Seeks to Change Law on Flame Retardant

Tue, 19 Jun 2012 14:07:22 GMT

California Governor Jerry Brown has ordered state agencies to review and revise flammability standards for “upholstered furniture sold in the state,” according to the governor’s website. Brown told the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation(BEARHFTI) that they must begin to review the 40 year old standards and revise them in order to reduce toxic flame retardants. He said, “Toxic flame retardants are found in everything from high chairs to couches and a growing body of evidence suggests that these chemicals harm human health and the environment. We must find better ways to meet fire safety standards by reducing and eliminating—wherever possible—dangerous chemicals.” Once the process begins workshops will be held and the revisions will be open to a public comment period.

EPA Extends TSCA CDR Rule

Mon, 11 Jun 2012 21:24:18 GMT

The U.S. Environmental Protection Agency (EPA) announced today that it is extending the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule reporting deadline until August 13, 2012. The original date was scheduled to be June 30, 2012. This is a one-time-only extension for the reporting rule, which “requires manufacturers and importers of certain chemical substances included on the TSCA Chemical Substance Inventory to report current data on the manufacturing, processing and use of the chemical substances.”

Karuk Tribe of California v. U.S. Forest Service: Consultation with Wildlife Agencies Required for Mining Activities to Proceed Pursuant to a Notice of Intent

Mon, 04 Jun 2012 19:36:35 GMT

On June 1, 2012, the Ninth Circuit Court of Appeal ruled that the U.S. Endangered Species Act (ESA) requires the U.S. Forest Service to consult with federal wildlife agencies prior to allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species. Specifically, in Karuk Tribe of California v. U.S. Forest Service, the Court held that approval of an NOI constitutes an “agency action” under section 7 of the ESA because it involves an affirmative, discretionary decision about whether, and under what conditions, to allow mining to proceed under a NOI (the full opinion available at http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf). Furthermore, when mining activities that may cause a disturbance to surface resources are conducted in critical habitat of a listed species, such activities “may affect” a listed species or its critical habitat as that term is used in the ESA. However, the Court recognized that informal consultation, rather than formal consultation, would likely be required for a NOI. The lawsuit arose from the approval of four NOIs that allowed motorized sluicing and mechanical suction dredging along the Klamath River.

First Large-Scale CCS Project Destined for North America

Thu, 31 May 2012 20:34:17 GMT

Carbon capture and sequestration has been seen as a key technology in the battle against climate change. The International Energy Agency has estimated that in order to meet carbon emission goals, 100 CCS projects would need to be up and running by 2020 and over 3000 projects would be needed by 2050. As a result, countries have been seeking funding and the best available method to implement these commercial scale projects. At one time, Europe seemed like it had the ability to meet the demand first but according to a new report from Bloomberg, it appears that North America is now likely to get the first projects up and running.