Verdant Settles EPCRA Enforcement Matter for New Cingular Wireless

EPCRA:

Verdant is pleased to announce that it helped its client, New Cingular Wireless, reach a favorable settlement with EPA over a longstanding EPCRA enforecement matter involving legacy facilities owned by a predecessor company.  A copy of EPA’s press release is embedded below. 

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WASHINGTON – The U.S. Environmental Protection Agency (EPA) and New Cingular Wireless (NCW) have reached an administrative settlement requiring the company to pay a civil penalty of $750,000 and spend $625,000 on environmental projects to resolve alleged reporting, planning and permitting violations at 332 legacy AT&T Wireless (AWS) sites now owned by NCW.

The violations, which occurred at AWS sites in 43 states, such as cellular towers, transmitter sites, switching stations and warehouses, included failure to comply with Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements related to the presence of sulfuric acid and diesel fuel at sites, inadequate or no Clean Water Act (CWA) Spill Prevention, Control, and Countermeasure (SPCC) Plans, and Clean Air Act (CAA) minor source permitting requirements.

The EPCRA requirements help communities plan for emergencies involving hazardous substances, the CWA’s SPCC rule requires facilities to have oil spill prevention, preparedness, and response plans to help prevent oil discharges to navigable waters and adjoining shorelines, and the minor source permitting requirements under the CAA ensure that air emissions limits are met.

Under the settlement, NCW will provide a certification of EPCRA compliance at 1,356 sites and conduct comprehensive compliance audits of CAA and CWA/SPCC requirements at 1,361 and 41 legacy-AWS facilities, respectively. NCW has also agreed to pay stipulated penalties for all disclosed and corrected violations discovered through these audits.

NCW has also agreed to conduct environmental projects, which will provide hazardous materials awareness and health/safety training to building inspectors and fire fighters. The projects will also support the procurement of emergency response equipment such as fire-fighting equipment, gas meters, hazmat identification equipment, satellite phones and other emergency communications equipment. The seven entities, located in four states that will benefit from the projects are: Palm Beach County Fire Rescue and Georges Lake Volunteer Fire Department, Putnam County, Fla., New York City Fire Department, N.Y., Yancey, Texas Volunteer Fire Department, Texas, and San Diego, County California Office of Emergency Services, Bodega Bay, California Fire Protection District, and Los Angeles, California Police Department Calif.

Since 1998, nearly 6,000 telecommunications facilities have been brought into compliance through more than 30 settlements as part of EPA’s effort to improve compliance in the telecommunications sector.

More information on the New Cingular Wireless settlement: http://www.epa.gov/enforcement/waste/cases/att.html

DTSC Reopens Comment Period on Green Chemistry Regulations

California Green Chemistry:

On December 20, DTSC delivered everyone an early Christmas present.  The agency announced that it was re-opening the docket to accept public comments on yet another revised version of the Safer Consumer Product Alternative (SCPA) Regulations.  The agency’s announcement is embedded below.  Merry Christmas – better scratch those holiday plans and get back to work!  Surely some are asking themselves “When will this stop and the litigation begin?”

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30 DAY PUBLIC NOTICE AND COMMENT PERIOD

NOTICE OF PUBLIC AVAILABILITY OF POST-HEARING CHANGES

SAFER CONSUMER PRODUCT ALTERNATIVES

Department Reference Number: R-2011-02

Office of Administrative Law Notice File Number: Z-2012-0717-04

Pursuant to Government Code section 11347.1, notice is hereby given that the Department of Toxic Substances Control (DTSC) has revised the Initial Statement of Reasons (ISOR) for the Safer Consumer Product Regulations, which establish the criteria for identification and prioritization of chemicals of concern in consumer products, evaluation of their alternatives, and imposition of regulatory responses by adopting chapter 55 to division 4.5 of Title 22, California Code of Regulations, and to amend the Table of Contents. DTSC is revising the ISOR to correct: typographical, spelling, cross-referencing, punctuation and other formatting errors. In addition, DTSC has revised the ISOR to address some substantive drafting issues raised regarding the ISOR. These include, but are not limited to, making more explicit the necessity statement for each provision.

 DTSC mailed the 45-day Public Notice and made it, together with the regulations text and related materials, available for public review and comment on July 27, 2012. A public hearing was held on September 10, 2012, during which DTSC accepted written and oral testimony. In addition, written comments were accepted during the 45-day public comment period, which was extended by 30 days and ended October 11, 2012. DTSC has now made post-hearing changes to the ISOR. DTSC is NOT proposing changes to the regulations text as part of this notice and related public comment period.

 A public comment period for the revised ISOR will commence on December 21, 2012, and close at 5 p.m. on January 22, 2013. Interested persons may submit comments regarding the revised ISOR by e-mail to gcregs@dtsc.ca.gov, by fax to (916) 323-5542, or by mail to:

Ms. Krysia Von Burg

Regulations Coordinator

Department of Toxic Substances Control

P.O. Box 806

Sacramento, CA 95812-0806

 Copies of the revised ISOR are posted to DTSC’s Internet site at: http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/index.cfm and http://www.dtsc.ca.gov/SCPRegulations.cfm and are available for public inspection between 8:00 a.m. and 5:00 p.m. at the Regulations Section located at 1001 I Street, 23rd Floor, Sacramento, California. Requests and inquiries concerning this matter may be directed to Ms. Krysia Von Burg at the address indicated above or by telephone at (916) 324-2810. Additions to the existing text are double-underlined and text deleted from the existing document is shown as strikeout.

 All comments must be received by DTSC by 5:00 P.M. on January 22, 2013, regardless of the form of transmission.

 Technical inquiries regarding the Revised Initial Statement of Reasons should be directed to Ms. Odette Madriago, Chief Deputy Director, at (916) 323-4927. However, it should be noted that oral inquiries are not part of the rulemaking record.   

30 DAY PUBLIC NOTICE AND COMMENT PERIOD 

NOTICE OF PUBLIC AVAILABILITY OF POST-HEARING CHANGES

 

SAFER CONSUMER PRODUCT ALTERNATIVES

 

Department Reference Number: R-2011-02

Office of Administrative Law Notice File Number: Z-2012-0717-04

 

 

Pursuant to Government Code section 11347.1, notice is hereby given that the Department of Toxic Substances Control (DTSC) has revised the Initial Statement of Reasons (ISOR) for the Safer Consumer Product Regulations, which establish the criteria for identification and prioritization of chemicals of concern in consumer products, evaluation of their alternatives, and imposition of regulatory responses by adopting chapter 55 to division 4.5 of Title 22, California Code of Regulations, and to amend the Table of Contents. DTSC is revising the ISOR to correct: typographical, spelling, cross-referencing, punctuation and other formatting errors. In addition, DTSC has revised the ISOR to address some substantive drafting issues raised regarding the ISOR. These include, but are not limited to, making more explicit the necessity statement for each provision.

 

DTSC mailed the 45-day Public Notice and made it, together with the regulations text and related materials, available for public review and comment on July 27, 2012. A public hearing was held on September 10, 2012, during which DTSC accepted written and oral testimony. In addition, written comments were accepted during the 45-day public comment period, which was extended by 30 days and ended October 11, 2012. DTSC has now made post-hearing changes to the ISOR. DTSC is NOT proposing changes to the regulations text as part of this notice and related public comment period.

 

A public comment period for the revised ISOR will commence on December 21, 2012, and close at 5 p.m. on January 22, 2013. Interested persons may submit comments regarding the revised ISOR by e-mail to gcregs@dtsc.ca.gov, by fax to (916) 323-5542, or by mail to:

Ms. Krysia Von Burg

Regulations Coordinator

Department of Toxic Substances Control

P.O. Box 806

Sacramento, CA 95812-0806

 

Copies of the revised ISOR are posted to DTSC’s Internet site at: http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/index.cfm and http://www.dtsc.ca.gov/SCPRegulations.cfm and are available for public inspection between 8:00 a.m. and 5:00 p.m. at the Regulations Section located at 1001 I Street, 23rd Floor, Sacramento, California. Requests and inquiries concerning this matter may be directed to Ms. Krysia Von Burg at the address indicated above or by telephone at (916) 324-2810. Additions to the existing text are double-underlined and text deleted from the existing document is shown as strikeout.

 

All comments must be received by DTSC by 5:00 P.M. on January 22, 2013, regardless of the form of transmission.

 

Technical inquiries regarding the Revised Initial Statement of Reasons should be directed to Ms. Odette Madriago, Chief Deputy Director, at (916) 323-4927. However, it should be noted that oral inquiries are not part of the rulemaking record.  

EPA finalizes withdrawal of TSCA § 8(d) reporting rule for cadmium

TSCA:

As we previously reported, EPA announced that it would withdraw its TSCA § 8(d) final rule requiring manufacturers of cadmium or cadmium compounds to report certain unpublished health and safety studies. Today, EPA released the pre-publication version of the final rule withdrawing the December 3, 2012 reporting rule. The reporting rule for cadmium was withdrawn due to “significant confusion…in certain industrial sectors subject to the final rule,” including uncertainty about which industries were subject to the rule.

EPA’s action today is based on the agency’s conclusion that the commenters’ concerns constitute good cause to withdraw the reporting rule without prior notice and comment per the Administrative Procedures Act. Likewise, because the withdrawal does not impose any new requirements, EPA found that the action is not subject to any Executive Orders (such as E.O. 12866, “Regulatory Planning and Review”), nor is it subject to the requirements of the Regulatory Flexibility Act or Title II of the Unfunded Mandates Reform Act. Per the Congressional Review Act (“CRA”), EPA will submit the withdrawal document along with other required information to Congress and the Comptroller General. Following section 808 of the CRA, the withdrawal rule will take effect early, on January 2, 2013.   A draft copy of the Federal Register notice is available here:  Prepublication_Cadmium-FRM-Withdrawal_2012-12-20[1].

EPA Withdraws Immediate Final TSCA 8(d) Rule for Cadmium

TSCA:

On Friday, December 14, Wendy Cleland-Hamnett, Director of the Office of Pollution Prevention and Toxics (OPPT), announced the U.S. Environmental Protection Agency’s (EPA) decision to withdraw the Toxic Substances Control Act (TSCA) section 8(d) immediate final rule published on December 3, 2012.  In its announcment the agency said: “Based on several letters asking questions and raising concerns about the scope and extent of the immediate final rule that indicate that there is significant confusion and uncertainty within certain industrial sectors concerning the rule, EPA has decided to withdraw the immediate final rule.” EPA will announce the withdrawal in the Federal Register, no later than January 2, 2013, the original effective date of the final rule. 

EPA  also said that it “will be considering the questions and concerns raised in response to the immediate final rule and next steps with regard to this rule. EPA will also continue to work with the Consumer Product Safety Commission (CPSC) to reduce exposure to cadmium in consumer products generally, and especially those consumer products used by or around children, such as children’s metal jewelry.”

More information about this development is available at the agency’s website here.  Information about section 8(d) is available here.

DTSC Requests Public Comment on Scientific Peer Review of Green Chemistry Regulations

California Green Chemistry Regulations:

Yesterday, the Department of Toxic Substances Control (DTSC) notified the public that the agency is adding two external scientific peer review reports to the Safer Consumer Products rulemaking, which was published in the California Regulatory Notice Register (Z-2012-0717-04)on July 27, 2012.  A public comment period for the external scientific peer review reports will commence on November 30, 2012, and close at 5 p.m. on December 30, 2012.

According to the notice, DTSC has complied with Health and Safety Code section 57004 regarding submission of the scientific portions of the proposed safer consumer product regulations to an external scientific peer review. Documents were submitted to scientific peer reviewers through the University of California. Their written reports, which contain an evaluation of the scientific basis of the regulations, have been added to the rulemaking file.  (If truly independent and objective, these comments should make interesting reading, potentially providing ammunition for the legal challenge that seems likely.)

Comments may be submitted by e-mail to gcregs@dtsc.ca.gov, by fax to  (916) 324-1808, or by mail to:

Ms. Krysia Von Burg

Regulations Coordinator

Department of Toxic Substances Control

 P.O. Box 806

 Sacramento, CA 95812-0806

 Tel: (916) 324-2810

 Fax: (916) 324-1808

 The external scientific peer review reports are available at http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/index.cfm or  http://www.dtsc.ca.gov/SCPRegulations.cfm and for public inspection between 8:00 a.m. and 5:00 p.m. at the Regulations Section located at 1001 I Street, 22nd Floor, Sacramento, California. Requests and inquiries concerning this matter may be directed to Ms. Krysia Von Burg at the address indicated above or by telephone at (916) 324-2810. If Ms. Von Burg is unavailable, please call Ms. Jacqueline Arnold at (916) 322-2004.

Inquiries regarding technical aspects of the external scientific peer review report should be directed to Mr. Jeff Wong at (916) 322-2822. If Mr. Wong is unavailable, please call Ms. Odette Madriago at (916) 323-4927. However, such oral inquiries are not part of the rulemaking record.

New EPCRA TRI Website

EPCRA Toxics Release Inventory (TRI):

On November 19, 2012, EPA rolled out a new website to provide information on how industrial facilities are preventing releases of chemicals. The site shows how industry is making progress in reducing releases reported under Section 313 of the Emergency Planning and Community Right-to-Know Act (ECPCRA).  The site and additional information about the TRI program is available  here

FTC Publishes Revised Green Guides

Green Marketing:

On October 2, 2012, the Federal Trade Commission (FTC) published long-awaited revised guidelines, known as the Green Guides, to aid marketers in properly making environmental benefit claims.   The FTC released its final revisions after a multiyear investigatory process, which included marketing surveys as well as reviewing comments from companies, trade organizations, government entities and individuals.  The the Green Guides lack the force of law, they provide guidance 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.

Below is a short summary of some of the major changes contained within the final revisions.

Highlights of the Newly Revised Green Guides

General Environmental Benefit Claims: The Green Guides caution against making general environmental benefit claims, such as using the words “green” or “eco-friendly,” without stating the basis for and qualifying these terms. The qualifying information must be clear, prominent and available at the point of sale—so consumers are able to see it before making their purchasing decisions.

Carbon Offsets: Marketers should use competent and reliable scientific evidence and comprehensive accounting methods to support their claims. However, an offset claim is inappropriate if the activity that makes the basis of the claim is required by law. If the offset purchase will pay for an emission reduction that will not occur for at least two years, then marketers are encouraged to disclose this information.

Certifications and Seals of Approval: The Green Guides also make recommendations for certifications and seals of approval used for endorsements. Marketers are encouraged to use environmental certifications or seals that convey the basis for the certification, but if these are not available, then they should clearly identify the product’s specific environmental benefits. Marketers are also encouraged to disclose their material connections with certifying organizations and must verify all express and implied claims when using third-party certification.

Compostable or Degradable:   “Compostable” claims must be based on competent and reliable scientific evidence, showing that product or packaging materials will become usable compost. Marketers should qualify if the product is not able to be composted in a safe or timely fashion. “Degradable” claims do not have to be qualified if the product or package can completely break down within a reasonably short amount of time, typically one year.

“Free-Off”:  “Free-of” claims can be made if the product contains trace amounts, background levels or less of the substance; the substance was not intentionally added to the product; and the amount contained with the product will not cause the type of harm linked to the substance.  The final revision differs from the standard articulated in the draft revision, and it will certainly create challenges for marketers.

 Non-Toxic:  For “non-toxic” claims, marketers should employ competent and reliable scientific evidence showing that the product is safe for people and the environment, unless otherwise qualified.  A product might be considered “non-toxic” under certain agency regulations designed to protect human health, but those regulations might not ensure protection for the environment.

Ozone-Safe:  Marketers are cautioned against misrepresenting that a product is safe for the atmosphere or ozone layer because the FTC finds that these can be unqualified general environmental benefit claims.

Recyclable and Recycled Content: The Green Guides also provide guidance regarding “recyclable” and “recycled content” claims. Recyclable claims should be qualified if recycling facilities are unavailable to 60 percent of consumers or communities to whom manufacturers sell a product. Recycled content refers to material recovered or diverted from waste during manufacturing or post-consumer use. Marketers are advised to qualify claims for products or packaging constructed partly from recycled material and specify the amount of partly recycled material contained therein. In addition, qualified claims should be made for products containing used, reconditioned or remanufactured parts.

Refillable: Marketers should not make unqualified “refillable” claims unless they identify a method to refill the product.

Renewable Materials and Energy : With claims like “made with renewable materials or energy,” the guides provide that marketers should qualify claims with specific information about the renewable materials used, such as what the renewable material is, how it is sourced and what qualifies it as renewable. Also, the Green Guides specify that marketers should qualify claims of renewable energy by specifying the source (e.g., wind or solar). If the power used to manufacture the product or any component of the product comes from fossil fuels, a renewable energy claim is inappropriate unless renewable energy certificates are purchased to link with energy use.

Source Reduction:  Finally, “source reduction” claims should be qualified with the amount of reduction and the basis for comparison from which the claim is made (e.g., “30 percent less runof f than our earlier model”).

 “Sustainable” and “Organic” Are Not Addressed:   The final revisions offer no guidance on claims regarding “sustainability” and whether a product is “organic.” The FTC claims that it lacks a sufficient basis or context to provide guidance on these claims because these terms have numerous meanings among consumers. However, the Green Guides caution marketers from making these types of claims without impunity.

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The complete final revisions to the FTC’s Green Marketing Guides are available here.   Additional information is also available on the FTC’s dedicated website

CBO Estimates Senator Lautenberg's TSCA Reform Bill Would Cost $128 Million over the Next Five Years

TSCA Reform:

On Tuesday, October 2, the Congressional Budget Office published its evaluation of the costs of implementing the amended version of S.847, The Safe Chemicals Act of 2011, which is Senator Lautenberg’s latest attempt to amend the federal Toxic Substances Control Act (TSCA).  Readers will recall that the Senate Committee on Environment & Public Works passed the amended bill on July 25, sending it to the full Senate for a vote.  Our blog post on that version of the bill is available here.

The CBO press release says the following:

“S. 847 would modify the Toxic Substances Control Act (TSCA), the law that regulates the manufacture, importation, and processing of chemicals, with the aim of shifting the burden from the Environmental Protection Agency (EPA) to chemical manufacturers to prove that substances are safe before they enter the marketplace. This new responsibility for chemical manufacturers would be accomplished primarily by increasing the amount of information about chemical toxicity and usage that they would be required to submit to EPA. Enacting this legislation also would require EPA to undertake other activities that would encourage and support the development of safer alternatives to existing hazardous chemical substances.

CBO estimates that implementing this legislation would cost $128 million over the next five years, assuming appropriation of the necessary amounts, as EPA would incur additional administrative costs to meet the new requirements imposed by S. 847.

Enacting S. 847 could affect direct spending and revenues because the bill would increase some existing civil and criminal penalties for violations of TSCA, establish some new civil and criminal penalties for violations related to that act, and authorize EPA to charge fees to chemical manufacturers. Therefore, pay-as-you-go procedures apply to S. 847. CBO estimates that any changes in revenues and direct spending would not be significant.

A copy of the CBO report is available here.

EPA Posts List of Safer Chemical Ingredients for DfE Safer Product Labeling Program

Design for the Environment (DfE):

The U.S. Environmental Protection Agency today posted a List of Safer Chemical Ingredients that contains chemicals that meet stringent criteria applied by the Design for the Environment (DfE) Safer Product Labeling Program. This program recognizes products that are high-performance and cost-effective while using the safest chemical ingredients. At present, more than 2,800 common household and other products carry the DfE Safer Product Label. This list of safer chemical ingredients will help product manufacturers identify chemicals that the DfE program has evaluated and identified as safer alternatives.  This list only includes chemicals in products that were voluntarily submitted for evaluation through the DfE Safer Product Labeling Program. There may be other chemicals not included in this list that are also safer. The list and additional information can be found at http://www.epa.gov/dfe/saferingredients.htm You can contact Bridget Williams in EPA’s DfE Program at 202-564-8558 or by email at williams.bridget@epa.gov for further information.

EPA Undertakes FIFRA Enforcement Initiative Against Companies Selling Alleged Plant Growth Regulators

FIFRA Enforcement:

On September 13, 2012, EPA issued a press release announcing three enforcement actions the agency recently settled against Missouri pesticide distributors under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  EPA alleged the distributors violated FIFRA by selling and distributing unregistered and misbranded pesticides. All three cases involved the sale and distribution of “plant growth regulators,” which are regulated as “pesticides” under FIFRA.  (Readers are forgiven for not knowing that plant growth regulators, several of which are natural and found in seaweed, are pesticides under FIFRA.)  Although the agency’s press release doesn’t mention it, the enforcement actions appear to be part of a broader, “under-the-radar” initiative against companies producing growth regulators, many of which are marketed as “biostimulants” or “fertilizers,” and not “pesticides.”

FIFRA defines plant growth regulators as substances intended to accelerate or retard the growth of plants.  Among other things, substances considered to be plant regulators may include hormone additives intended to stimulate plant root growth or fruiting, such as gibberellins, auxins, and cytokinins derived from seaweed. Products containing these additives are often marketed as fertilizers or biostimulants, but EPA says such claims do not exempt the products from regulation as pesticides.

The three settlements are summarized below, but others are pending within EPA and we suspect the agency is pursuing investigation of still more.

  • On June 14, 2012, FIFRA-07-2012-0015, Mayberry Seed Company of Essex, Missouri, agreed to pay a $17,160 penalty to resolve violations of FIFRA. EPA alleged that Mayberry distributed or sold an unregistered plant growth regulator and fungicide on at least 14 occasions between April 1, 2010, and August 25, 2011.

  • On July 5, 2012, Southeast Cooperative Service Company, Inc., of Advance, Missouri, agreed to pay a $12,000 civil penalty to resolve multiple sales of an unregistered plant growth regulator and fungicide to at least four individuals between April 1, 2010, and August 21, 2010.

  • On Sept. 4, 2012, FIFRA-07-2012-0029, AgXplore International, LLC, of Parma, Missouri, agreed to pay a $237,573 civil penalty to resolve violations of FIFRA, including 212 counts for the sale or distribution between May 7, 2009, and March 25, 2012, of 19 different unregistered pesticide products, including plant regulators, insecticides, and fungicides. AgXplore International, LLC has informed its customers and distributors of its violative products.

Under FIFRA, distributors of pesticides must ensure that pesticides intended for distribution within the U.S. are registered both if the distributor claims the substance can be used as a pesticide or if the product is intended to be used for a pesticidal purpose, including as a plant regulator.

Many plant growth regulator products are properly registered with EPA. Companies which comply with pesticide registration requirements must pay registration fees and may also incur significant costs in ensuring their products are correctly formulated, perform as intended, and are properly labeled. Accordingly, entities which produce, sell or distribute unregistered pesticides place themselves at an economic advantage relative to their competitors who comply with the law.

EPA registration requirements also protect consumers by ensuring that products are formulated in accordance with the product label. Without proper registration and labeling on pesticides (including required safety information), users may unintentionally misapply pesticides and cause damage to crops or non-target areas and may lack adequate first aid information in the event of an accident.

As part of their respective settlements with EPA, each of the three companies has certified that it is presently in compliance with FIFRA and its regulations. 

Stay tuned for future postings regarding this development.