Archive for the ‘Toxic Substances’ Category

Blaming the Victim

via Wikimedia Commons

via Wikimedia Commons

A year ago the Chevron refinery in Richmond, California exploded, sending a giant plume of toxic smoke over the small city sandwiched between Oakland and San Francisco. Thousands of Richmond residents fled the smoke and ended up in hospitals with respiratory problems. This wasn’t the first massive explosion at the refinery. It went up in 1989 and again a decade later. But the one last year was big enough to cause the U.S. Chemical Safety Board to bring the hammer down in a report which accused Chevron of knowingly failing to replace old corroded pipes, and calling for more stringent national safety standards.

Last year’s explosion, too, was a result of corroded pipes and Chevron’s failure to correct deficient equipment at the refinery. Indeed, Chevron pleaded no contest to charges filed by the California Attorney General’s Office and the Contra Costa District Attorney’s Office, and agreed to pay $2 million in fines and restitution.

The City of Richmond and Chevron have had a prickly relationship for years. While Chevron is the second largest oil company in the United States, Richmond is a small working class city living in the shadow of its hipper and much wealthier neighbors. It has plenty of woes, including high unemployment and a high crime rate, and has long sought to have the oil giant step up its civic contributions as a corporate citizen.

Perhaps Chevron decided that little old Richmond doesn’t pose as much of a legal threat as the combined forces of the state and the county.  When the city announced that it would pursue negligence claims against Chevron, accusing it of “willful and conscious disregard of public safety” and seeking financial compensation for the costs of emergency response, medical treatment, environmental cleanup and damage to public health,  the company decided to take another tack. It decided to blame the victim. Chevron’s spokeswoman airily dismissed the city with these words:

“We believe the decision to pursue such a suit is a waste of the city’s resources and yet another example of its failed leadership.” The city’s failed leadership. Chevron pleads no contest to criminal negligence, then turns around and accuses the city – the city whose residents fled the billowing plumes at Chevron’s refinery in droves – of failed leadership.

There’s a lot of words you could use to describe that response. One word in the dictionary should do nicely, though: Chutzpah.

Update on California’s Green Chemistry Rules

It’s been almost two years since we first reported on California’s Department of Toxic Substances Control’s (“DTSC”) then-fledgling Green Chemistry Initiative. At that point, DTSC had just released their first set of proposed regulations that would have added Chapter 53, “Safer Consumer Product Alternatives,” to Division 4.5, Title 22, of the California Code of Regulations. However, in August of 2011, DTSC withdrew the draft regulations (following “intense criticism of the regulations by both environmental and industry stakeholders,” according to Morrison Foerster).

Fast forward to last week, and, well, DTSC is giving it another go. This time, however, they’ve at least made it to the final draft stage. The newly proposed regulations would add Chapter 55, “Safer Consumer Products,” to the same Division and Title of the California Code of Regulations, and, as before, would require manufacturers to seek alternative (and less toxic) ingredients for “chemicals of concern” in widely used products. This latest version of the proposed regulations (as compared with an October 2011 Informal Draft) aims to address – yet again – more concerns from environmental and industry groups.

A summary of the changes from prior drafts can be found here, and in an even easier-to-digest format in this blog post from law firm Jenner & Block.

EPA Initiates Proposed Rulemaking Process to Obtain Fracking Fluid Data

Photo by dmott9. Some rights reserved.

On November 23, 2011 the EPA issued a letter partially granting a petition from the environmental group Earthjustice requesting disclosure and evaluation of the fluids and chemicals used in hydraulic fracturing under the Toxic Substances Control Act (TSCA).

Earthjustice had submitted the petition in August 2011 on behalf of more than 100 public health, environmental, and “good government” groups requesting that the EPA “adopt a rule under TSCA section 4 [15 USC 2603], requiring that manufacturers and processors of E&P Chemicals (defined in the petition as “chemical substances and mixtures used in oil and gas exploration or production” – ed.) conduct toxicity testing of all E&P Chemicals and identify all chemical substances and mixtures tested.” The petition also asked for the “promulgation of a rule under TSCA section 8 [15 USC 2607], requiring maintenance and submission of various records related to E&P Chemicals, calling in records of allegations of significant adverse reactions to E&P Chemicals, and requiring submission of all existing health and safety studies related to E&P Chemicals.”

Earlier in November, the EPA provided an initial response to the petition in which they denied the TSCA section 4 request, as the petition did not “set forth sufficient facts to support the assertion that it is ‘necessary to issue’ the requested TSCA section 4 rule, as required by TSCA section 21(b)(1).”

However, as stated in the November 24 letter, the EPA “has now decided to partially grant the TSCA section 8(a) and section 8(d) requests in the petition,” because they “believe there is value in initiating a proposed rulemaking process using TSCA authorities to obtain data on chemical substances and mixtures used in hydraulic fracturing.”

Hogan Lovells and K&L Gates have more.

Seeking Medical Monitoring After Environmental Contamination

Photo by cote. Some rights reserved.

A Legal Update from Mayer Brown covered the recent Third Circuit opinion in Gates v. Rohm & Haas Co.

The plaintiffs in the case, which started as a complaint filed against Rohm and Haas (a manufacturing company that is now a subsidiary of The Dow Chemical Company) in a Pennsylvania district court five years ago, sought certification for a class of residents of McCullom Lake Village who wanted the defendants to cover costs associated with medical monitoring “designed to determine whether any other former or current resident of McCullom Lake Village may have brain cancer.”

Why brain cancer? Well, according to the complaint, at least five individuals in McCullom Lake Village had developed malignant brain cancer within a short period of time, and others in the neighborhood had also developed brain cancer and rare brain tumors. The plaintiffs argued that exposure to vinyl chloride – a highly toxic chemical that was found in groundwater where Morton International (owned by Rohm and Haas at the time) was dumping liquid chemical waste – gives the proposed class members “a significantly heightened risk of developing malignant brain cancer and other illnesses.”

Despite what looked like a pretty convincing correlation/causation between the chemical waste dumping and the health of the residents of McCullom Lake Village, what the case came down to was Rule 23 of the Federal Rules of Civil Procedure. It was under this rule that the plaintiffs sought class certification, and it was this rule that undermined their case.

The district court denied the plaintiffs class certification under Rule 23.  When the case eventually came to the Third Circuit, the outcome was the same: “Given the inability to separate common issues from issues where individual characteristics may be determinative, […] the District Court did not abuse its discretion in denying the plaintiffs’ motion for class certification under Fed. R. Civ. P. 23(b)(2) and (b)(3). We [the Third Circuit] will affirm its judgment.”

For a more thorough review, and a point-by-point explanation of the courts’ reasoning, don’t forget to check out Mayer Brown’s Legal Update.

This Week in Environmental Disclosure: Alcoa’s Decades-Plus Struggle with the Grasse River

Grasse River, NY. Photo by Gary Soup. Some rights reserved.

In yesterday’s 10-Q, Alcoa brought us up to speed on the current status of their Massena plant site – one of more than 100 locations at which the aluminum company is participating in environmental assessments or cleanups – and the reserves slated for the costs associated with its remediation. The Grasse River on which the plant resides has been plagued with toxic pollutants and sediment control issues linked to Alcoa’s operations.

You can keep tabs on the entire “Area of Concern” that includes the Massena site on the EPA’s website, here.

Alcoa’s disclosure was as follows (dollar amounts are in millions):

Massena West, NY – Alcoa has been conducting investigations and studies of the Grasse River, adjacent to Alcoa’s Massena plant site, under a 1989 order from the U.S. Environmental Protection Agency (EPA) issued under CERCLA. Sediments and fish in the river contain varying levels of polychlorinated biphenyls (PCBs).

Alcoa submitted various Analysis of Alternatives Reports to the EPA starting in 1998 through 2002 that reported the results of river and sediment studies, potential alternatives for remedial actions related to the PCB contamination, and additional information requested by the EPA.

In June 2003, the EPA requested that Alcoa gather additional field data to assess the potential for sediment erosion from winter river ice formation and breakup. The results of these additional studies, submitted in a report to the EPA in April 2004, suggest that this phenomenon has the potential to occur approximately every 10 years and may impact sediments in certain portions of the river under all remedial scenarios. The EPA informed Alcoa that a final remedial decision for the river could not be made without substantially more information, including river pilot studies on the effects of ice formation and breakup on each of the remedial techniques. Alcoa submitted to the EPA, and the EPA approved, a Remedial Options Pilot Study (ROPS) to gather this information. The scope of this study included sediment removal and capping, the installation of an ice control structure, and significant monitoring.

From 2004 through 2008, Alcoa completed the work outlined in the ROPS. In November 2008, Alcoa submitted an update to the EPA incorporating the new information obtained from the ROPS related to the feasibility and costs associated with various capping and dredging alternatives, including options for ice control. As a result, Alcoa increased the reserve associated with the Grasse River by $40 for the estimated costs of a proposed ice control remedy and for partial settlement of potential damages of natural resources.

In late 2009, the EPA requested that Alcoa submit a complete revised Analysis of Alternatives Report in March 2010 to address questions and comments from the EPA and various stakeholders. On March 24, 2010, Alcoa submitted the revised report, which included an expanded list of proposed remedial alternatives, as directed by the EPA. Alcoa increased the reserve associated with the Grasse River by $17 to reflect an increase in the estimated costs of the Company’s recommended capping alternative as a result of changes in scope that occurred due to the questions and comments from the EPA and various stakeholders. While the EPA reviews the revised report, Alcoa will continue with its on-going monitoring and field studies activities. In late 2010, Alcoa increased the reserve by $2 based on the most recent estimate of costs expected to be incurred for on-going monitoring and field studies activities as the EPA continues its review during 2011.

The ultimate selection of a remedy may result in additional liability. Alternatives analyzed in the most recent Analysis of Alternatives report that are equally effective as the recommended capping remedy range in additional estimated costs between $20 and $100. As such, Alcoa may be required to record a subsequent reserve adjustment at the time the EPA’s Record of Decision is issued, which is expected in 2011 or later.

EPA Chips Away at Confidential Business Information

Photo by puamelia. Some rights reserved.

You can now know precisely which chemicals were administered to which laboratory rats and rabbits!

In what they are calling an “unprecedented” action, the EPA yesterday announced that they have made public the identities of more than 150 previously confidential chemicals mentioned in 100+ health and safety studies.

Under Section 8(e) of the Toxic Substances Control Act (15 U.S.C. §2607(e)), companies that manufacture, process, or distribute chemicals are required to provide notices to the EPA immediately if they learn that any of their chemical substances present a “substantial risk of injury to health or the environment.” While such reports would understandably reference the chemicals under scrutiny, Section 14 of the TSCA (15 U.S.C. §2613) allows said companies to omit the name of the chemical in the public version of these reports (and other types of studies) if they “believe” that information is “entitled to confidential treatment.” (Not a particularly stringent rule, eh?)

Over a year ago, the EPA began to ramp up their fight against unwarranted Confidential Business Information (CBI) claims, beginning in January of 2010, with the publication of new guidance outlining updated practices for reviewing submissions under section 8(e) for CBI claims “of chemical identities listed on the public portion of the TSCA Chemical Substances Inventory.” The guidance was followed by another Federal Register Notice in which the EPA announced that they would generally “deny a confidentiality claim for chemical identity” in health and safety studies. The new practices were intended to increase transparency by making “more health and safety information available to the public.”

Around the same time, the Assistant Administrator of EPA’s Office of Chemical Safety and Pollution Prevention sent a letter to industry trade associations, challenging them “to reduce the voluminous claims” of CBI that the industry has made. While such letters prompted some companies to voluntarily initiate declassifications of CBI, not all companies were eager to do so. In February of 2011, the EPA notified five companies that their previous CBI claims were “clearly not entitled to confidential treatment under § 14 of TSCA,” and that the EPA intended to make the information public.

In March 2011, the EPA began to declassify CBI in health and safety studies published on the EPA’s website. As of June 8, 2011, more than 100 studies had received the declassification treatment – you can see those studies here.

While the reports often contain the original language requesting confidential treatment (“Disclosure of product composition would be of benefit to competitors and would harm our Company’s ability to enable sell end products made utilizing the material whose composition is being claimed as confidential.”Report #8EHQ-92-4171), they have since been updated – by the addition of a few pages at the beginning of the document – and rescanned to indicate the declassification in some manner. (“After reconsidering the substance of the referenced TSCA 8(e) submission, Rhodia Inc. hereby agrees to declassify from confidential business information to public information all of the bracketed information identified in and redacted from the Public Notice Copy of this filing.” Report #8EHQ-91-1708)

(PETA members may want to refrain from browsing the studies, which go into detail about the administration of said declassified chemicals into various animals’ eyes. What really kills me is one such narrative emphasizing that “the test article was instilled into the eye by gently pulling the lower lid away from the eyeball to form a cup into which the test article was deposited.” (emphasis added) Regardless of how gently the lid was handled, it didn’t stop the “blistering of eyelid” by said “test article.”)

Compliance During Inclement Weather

Photo courtesy of @gletham GIS, Social, Mobile Tech Images. Some rights reserved.

While tornadoes dominate headlines, the EPA is looking forward a few weeks to the onset of hurricane season. As if your personal safety weren’t enough to look out for, a recent EPA news release reminds us that extra precautions should be taken to minimize chemical releases associated with natural disasters.

This is not only a gentle suggestion but a federal requirement. Under the Clean Air Act’s Section 112(r)(1) – 42 U.S.C. 7412(r)(1) – owners and operators of facilities producing, processing, handling or storing hazardous substances have a “general duty” to take the steps necessary to prevent releases of such substances (you can see a list of the regulated substances at 40 C.F.R. 68.130). Such steps typically include a mix of general safety precautions and maintenance, monitoring, and employee training measures.

Let a little something slip? Any release that surpasses the “reportable quantity” for that substance mandates immediate notification of the National Response Center pursuant to Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9603). But just because you’ve notified the federal authorities doesn’t mean you can leave your neighbors in the dark – Section 304 of the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11004) requires owners and operators to alert state and local emergency response groups as well.

The relative predictability of hurricanes buys affected facility owners/operators a little bit of time – a rare opportunity not afforded to those in tornado zones. Of course, many of the precautions recommended are the same, it’s just that the schedule for implementation can be drastically different.

For more information, visit the EPA’s Natural Disaster and Weather Emergencies center.

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