A Bridge Too Far? EPA's War on Lead-Based Paint Takes Aim at Commercial Buildings

Posted on June 30, 2010 by Charles Efflandt

No one doubts that EPA’s war on lead-based paint serves the cause of mitigating an established health threat. With children being particularly at risk, the regulations to date have focused on lead-based paint in older homes and other “child-occupied facilities.” On May 6, 2010, however, EPA gave notice of its intent to take the battle to an undefined set of commercial and public buildings. Can a full-scale assault on commercial facilities, which will involve a more complex set of regulatory variables and which will venture farther from the core health risk concerns, succeed in achieving a proper balance of competing factors?


EPA’s May 6, 2010 Advance Notice of Proposed Rulemaking announcing the next step in the lead-based paint campaign was published only days after the April 22, 2010 effective date of the controversial Renovation, Repair and Painting Rule (“RRP Rule”). That rule regulates renovation and repair activities disturbing lead-based paint in older homes and child-occupied facilities. The RRP Rule affects contractors, landlords and others who perform RRP work for compensation.


The RRP Rule includes provisions for the required certification (for a fee) of firms performing covered RRP work, the training and certification (at a significant cost) of “Certified Renovators” through EPA-accredited classes, the required use of detailed RRP work practices when performing covered activities, the retention of compliance records, and the verification of compliance with work practice obligations. Even though the RRP Rule has a relatively narrow focus - residences and other child-occupied facilities - its requirements have generated substantial controversy.


Because the RRP Rule applies to numerous trades and contractors, as well as to certain landlords and other persons, issues related to obtaining the required training, safe implementation of the work practice requirements, costs of compliance and the possibility of a $37,500 per day, per violation penalty are only now being confronted by the regulated community as well as the regulators. Small contractors may be forced out of business, impacting competition. Needed RRP work may not be performed due to cost. Lead-contaminated waste disposal will create new environmental/health problems partially offsetting the benefits of the RRP Rule. Suffice it to say, EPA has not yet solved the numerous problems and complexities of implementing even these regulations focused on older homes and child-occupied facilities.


With this background, and setting aside for the moment legal mandates, one can reasonably question whether EPA is prepared to set its sights on a significantly more complex regulatory challenge- the renovation and repair of an estimated two to three million commercial and public facilities constructed prior to 1980. The ANPR includes no proposed language. Rather, the public is invited to respond to over 100 detailed questions and data requests.


At this time, the scope of EPA’s assault on the renovation and repair of commercial and public buildings is unknown. No current limitations on covered “commercial” and “public” buildings exist and both exterior and interior renovation and repair work are included in the ANPR. Unresolved questions include: What renovation and repair work should be covered? What activities create the most risk? Should exposure pathways be broadened to include nearby properties? How should the substantial amount of lead-contaminated waste be handled to avoid creating a different health and environmental hazard?


This much is known. The regulatory variables associated with extending the war on lead-based paint to commercial and public buildings are more numerous and the targeted health risks have expanded. I suggest that there is a real possibility that the regulations could fail to appropriately balance the legitimate interests of contractors, building owners and the public with the known and perceived health risks. Let us hope that the regulated community weighs-in on these issues and that the EPA gives careful thought to this next step in its campaign against lead-based paint.


The public comment period for this proposal ends July 6, 2010.


Posted on June 23, 2010 by Rachael Bunday

ACOEL member Richard Lazarus has been appointed as staff director for the National Commission on the BP Deepwater Horizon Oil Spill, the commission announced Tuesday.

Lazarus, a Harvard University Law School graduate and current professor of environmental law at Georgetown University, will be tasked with coordinating the investigation that will determine what new regulations deepwater drilling will face after the Obama administration’s moratorium on the activity is lifted.

Current ACOEL president Jeff Thaler, a partner at Bernstein Shur, in Portland, Maine, applauded the commission’s choice.

“The Commission made a wise choice in selecting Richard Lazarus as staff director,” said Thaler.  “Prof. Lazarus is a superb environmental lawyer and legal scholar with broad experience inside and outside of government.  The College is proud to have him as a member.”

EPA Issues New Requirements for Pesticide Discharges and Sets Stricter Standard for Sulfur Dioxide

Posted on June 23, 2010 by John Crawford

The Environmental Protection Agency (EPA) last week announced new permit requirements for pesticide discharges and also issued a stronger standard for sulfur dioxide (SO2) emissions.  These new regulations come on top of other efforts by the EPA to control and limit pollutants and the notice earlier this year that EPA will enforce stricter standards for ground-level ozone. 

Pesticide Discharges

In response to the  April 2009 National Cotton Council v. EPA  decision wherein the court found that pesticide discharges to U.S. waters were pollutants, the EPA has proposed a new permit on pesticide use.  According to a release by the agency, the proposed permit “would require all operators to reduce pesticide discharges by using the lowest effective amount of pesticide, prevent leaks and spills, calibrate equipment and monitor for and report adverse incidents.”

The proposed permit covers the following pesticide uses:
- Mosquito and other flying insect pest control
- Aquatic weed and algae control
- Aquatic nuisance animal control
- Forest canopy pest control

Importantly, the proposed permit does not include earthbound applications to control pests on agricultural crops or forest floors.  However, the agency could decide to regulate these activities through  future rule-making.

The EPA estimates that the new regulations would affect approximately 35,000 pesticide applicators nationally.  The agency is currently soliciting public comment on the permit and plans to finalize it by December of this year.  The new permit requirements will take effect in April of 2011.

Sulfur Dioxide Standard

EPA has issued a new health standard for sulfur dioxide emissions. The new  rule changes the current 24-hour and annual standards to an hourly health standard of 75 parts per billion (ppb).  The existing SO2 standards were established in 1971 and included a 24-hour standard of 140 ppb and an annual average standard of 30 ppb.

Additionally, EPA is also changing the monitoring requirements for SO2, requiring that monitors be placed where SO2 emissions impact population at certain levels.  The new monitors must be operational by January 1, 2013.

2010 American College of Environmental Lawyers Annual Meeting

Posted on June 21, 2010 by Rachael Bunday

Houston, TX

October 21 to 23, 2010



 The American College of Environmental Lawyers is having its Annual Meeting in Houston, Texas, October 21-23, 2010 at the law offices of Vinson & Elkins. You may register and pay conference fees below.  Please note that dress attire is business casual.



We have reserved a block of  85 rooms at the Hilton Americas - Houston (713) 739-8000.  Please make sure to mention you are with the American College of Environmental Lawyers to get our discounted rate of $129 for a single or double room.








6:00 p.m. -  Welcome Reception with plentiful hors d'oeuvres hosted by Vinson & Elkins at The Grove at Discovery Green, across from The Hilton Americas. Open to College members and their spouses/significant others.



7:30 a.m. - Breakfast in the Vinson & Elkins Courtroom on the 24th Floor

9:00 - President's welcome and announcements

9:15 - Keynote speaker: John Hofmeister -- Founder and Chief Executive, Citizens for Affordable Energy, Washington, D.C. and author of "Why We Hate the Oil Companies: Straight Talk from an Energy Insider;" former President, Shell Oil Company, Houston, TX (retired 2008).


10:00 - Break

10:15 - Business meeting, including election of officers and induction of new Fellows and installation of new President

10:45 - Third annual "around the room" introductions of ACOEL Fellows

12:30 - Lunch and Committee Meetings, 26th Floor Conference Center. Fellows who are not currently assigned to a committee, please self-select and join one.

Policy Committee - 26C

Membership Committee - 26D

Programs Committee - 26G

Website Committee - 26H

Afternoon Plenary Sessions in the Courtroom

2:00 p.m. - Pending Actions Concerning the Gulf Oil Spill

Panelists: Bradley Marten, Marten Law Group

John Cruden, U.S. Dept. of Justice

James Bruen, Farella Braun + Martel


3:00 p.m. - Break

3:15 - 5:00 pm -  Imagining the Future of the College: An Open, Free-Wheeling Discussion on Mission, Direction and Expectations

                       *chaired by Jeff Thaler and Carol Dinkins, with participation by all


Dinner:   Choose from several venues previously announced for no-host groups.



Morning Concurrent Sessions (26th Floor Conference Center)

10:00 a.m. to 11:30 a.m.

  • Session A (26C): Climate Change Update, and the Resurgence of Common Law Nuisance in Climate Change Cases.

Format: Panel discussion with participation of attendees.


Michael B. Gerrard,  Center for Climate Change Law,Columbia University Law School

                        Pamela M. Giblin, Baker Botts

                        R. Kinnan Goleman, KG Strategies

Moderator: Karen Crawford, Nelson Mullins Riley & Scarborough 


  • Session B (26D): In the Wake of Burlington Northern: Private Party and Government Responses, and Case Law Developments

Format: Panel discussion with participation of attendees.


Carol E. Dinkins, Vinson & Elkins

Theodore L. Garrett, Covington & Burling

William H. Hyatt, Jr., K&L Gates

Moderator: David B. Farer, Farer Fersko

 11:30 - Adjornment of 2010 Annual Meeting

Afternoon and Evening


Excursion Options:


1:30 pm - Travel on your own by taxi to meet at The Menil Collection, 1515 Sul Ross Street, Houston, TX 77006, for an overview by Emily Todd, Deputy Director, followed by guided tour of campus.


Travel on the Main Street light rail to the Museum District and Hermann Park, where you will find close by:

Houston Museum of Natural Science with butterfly house, planetarium and energy hall, and gem and mineral collection.
Houston Museum of Fine Arts
Contemporary Arts Museum
Holocaust Museum
Japanese Tea Garden
Houston Rose Garden at Hermann Park
Houston Zoo

6:00 – 8:00 pm:

Dinner and private cruise of the Houston Ship Channel on the Houston Port Authority’s Sam Houston. Mexican flood catered by Ninfa’s with beer, wine and margaritas. Travel by taxi to 7300 Clinton Drive, Houston, TX 77020; look for Gate 8. Please arrive no later than 5:30 pm at the Visitors Pavilion for boarding. 

Optional Evening Outing
The College has booked a ride on the Sam Houston Boat Tour  from 6-8pm for all members and their guests. Heavy hors d'oeuvres, beer and wine will be served. Please RSVP to Carol Dinkins (cdinkins@velaw.com) if you plan on attending. There will be modest fee for food and drink - more details to follow.
See below for more information about the boat tour.

Get ready for an unforgettably spectacular waterborne tour of one of the busiest ports in the world aboard the Port of Houston Authority's free public tour boat!

Named for the legendary military commander who led the fight for Texas independence from Mexico and later statehood, the M/V Sam Houston offers free leisurely 90-minute round-trip cruises along the Houston Ship Channel.

Embarking from the port's Sam Houston Pavilion, visiting sightseers can enjoy passing views of international cargo vessels, and operations at the port's Turning Basin Terminal. Measuring 95 feet in length and 24 feet in width, the boat carries a maximum capacity of 90 passengers with air-conditioned lounge seating and additional standing room on the boat's rear deck.

The M/V Sam Houston has been operating as the Port Authority's public tour vessel since its inaugural voyage on July. 30, 1958. By 1979, a total of 1 million passengers had taken the tour.







Conference Registration Fees and Payment


The meeting fee this year is $275 per person. You may use the PayPal button below to pay your conference fees or, if you prefer, you may mail a check to:  


Bob Whetzel

Richards Layton & Finger

One Rodney Square

P.O. Box 551

Wilmington, DE 19899













If You Thought That State RCRA Enforcement Order Was a Bar to Any Citizen Suit, Think Again

Posted on June 21, 2010 by Karen Aldridge Crawford

Natural Resource Defense Council, Inc. v. County of Dickson, Tennessee, 2010 U.S. Dist. LEXIS 32423 (M.D. Tenn. Apr. 1, 2010).

A district court denied Defendants’ motion to dismiss an environmental group’s claims under the citizen suit provisions of RCRA to abate an alleged imminent and substantial endangerment to human health and the environment posed by trichloroethylene and perchloroethylene disposed at a landfill.  The state agency had issued an order addressing this issue, and so Defendants, among other defenses, asserted that the group’s claims should be dismissed pursuant to 42 U.S.C. § 6972(b)(2)(B)(iv) which bars citizen suits where a court order or administrative order has been issued.  According to the Court, "Administrator" is defined as the "Administrator of the Environmental Protection Agency," and thus the Court was not persuaded by Defendants' argument that Tennessee had stepped into the shoes of the EPA administrator for purposes of enforcing the federally-mandated hazardous waste program based on a memorandum of understanding (MOU) between the state and EPA.  According to the Court, the MOU referenced Subchapter III, while the provision governing "imminent hazards" is located in Subchapter IV.  Therefore, the MOU did not authorize the state to step into the shoes of the EPA administrator for purposes of bringing an action or issuing an order regarding an imminent hazard. That authority is retained by the EPA administrator.  The Court also found that despite Defendants’ assertions otherwise, the group had standing to sue, its claims were not moot, and the doctrines of abstention and primary jurisdiction did not warrant dismissal of the case.

Livable Communities -- And How to Achieve Them

Posted on June 10, 2010 by Seth Jaffe

With work on financial reform almost complete, Senator Dodd announced this week that his remaining legislative priority is the enactment of the Livable Communities Act, S. 1619. There is a companion house bill, H.R. 4690. A hearing on the Senate bill will be held tomorrow.

It’s hard to be against livable communities and I may just be getting crotchety, but this legislation seems some combination of pointless and misguided. The legislative findings discuss traffic congestion, the percentage of oil used for transportation and CO2 generated from transportation, and the need to encourage and sustain compact development and historical town centers.  And we’re going to solve this – or even make a dent – by making grants to “micropolitan” statistical areas? I don’t think so.

I agree that sprawl is a problem. I support transit-oriented development. However, there are reasons why we see development where we sit it in the United States. People still like the freedom and flexibility of personal automobile use. If we think that all that driving causes externalities – and I do – I’ve got two words for you: carbon tax. Until we make people internalize the cost of their living choices, they will continue to make those same choices and money spent on encouraging livable communities will be largely wasted. If we can’t summon the political will to tax carbon, we shouldn’t pretend that we’re solving the problem by spending money on micropolitan areas.

No New Standards for Chemical Plant Security This Year

Posted on June 8, 2010 by Susan Cooke

Despite earlier expectations, it appears increasingly unlikely that the House and Senate will consider passage of legislation this year on the Chemical Facility Anti-Terrorism Standards (“CFATS”) program.[1] Under that program the Department of Homeland Security (“DHS”) adopted regulations at Title 6 Part 27 which list about 300 chemicals of interest, each with a screening threshold quantity. Facilities with a chemical of concern above the screening threshold quantity are required to complete a screening questionnaire for review by DHS. 

If the DHS determines that the facility presents a high level of security risk, it notifies the facility which must then prepare a security vulnerability analysis and file the analysis with DHS. This analysis must address each vulnerability that is identified, and it must satisfy security performance standards set forth in the regulations, most of which are phrased in very general terms. DHS may inspect such high risk facilities to assess their compliance with regulatory requirements, and it may issue orders assessing civil penalties which it can enforce through an adjudicatory hearing process.

The statutory provisions governing CFATS are due to expire on October 4, 2010, and Congress was expected to consider substantive revisions to the program and extend it for several years before its expiration in October. Two bills, H.R. 2868 and S. 2996, were expected to receive serious attention in crafting that legislation.

[1] The program was established under the Department of Homeland Security Appropriations Act of 2007, § 550, Pub. L. 109-295, and was extended by the Department of Homeland Security Appropriations Act of 2010, § 550, Pub. L. 111-83.


H.R. 2868 passed the House in November 2009 and is entitled the “Chemical and Water Security Act of 2009”. It would extend the program’s current requirements to facilities that treat drinking water or wastewater, with the requirements administered by the U.S. Environmental Protection Agency and state authorities rather than DHS. The House bill would also require high risk facilities to assess inherently safer technology (“IST”) alternatives (referred to in the bill as “methods to reduce the consequences of a terrorist attack”). In addition, the bill would provide for citizen petitions seeking DHS investigation of a chemical facility allegedly in violation of CFATS requirements.

The Obama Administration has advocated modifications to CFATS that are similar to the provisions of H.R. 2868, and Senator Lautenberg who chairs the Senate’s Environment and Public Works Committee has stated his intention of introducing a chemical security bill which is expected to be at least as stringent as the H.R. 2868. However, he has yet to introduce such a bill. 

S. 2996 has received the support of several industry sectors and is entitled “Continuing Chemical Facility Antiterrorism Security Act of 2010”. It would extend CFATS for another five years, leaving the current provisions essentially intact except for the addition of voluntary chemical security training and exercise programs. 

It now appears that the House and Senate will extend statutory authorization of the CFATS program for another year, with supplemental funding provided in the Homeland Security budget bill now under consideration. Of course, the recent oil spill in the Gulf of Mexico could engender renewed interest in the earlier adoption of an IST provision which has been the subject of the greatest discussion. Indeed, one Green Peace blog points to failure of the shut off valve on the oil rig where the Gulf of Mexico oil spill occurred as demonstrating the need for immediate adoption of such a provision. However, absent a major catastrophe on land or connected to a terrorist plot involving a chemical facility or refinery here in the United States, legislative action on proposed changes to the CFATS program is not expected to occur until after the fall elections.

SEC Issues Interpretative Guidance on Climate Change Disclosures

Posted on June 7, 2010 by Michèle Corash

by Michele B. Corash and Robert L. Falk

Morrison & Foerster LLP

San Francisco, California



In the first quarter of 2010, the U.S. Securities and Exchange Commission (“SEC”) issued a potentially significant “interpretative release” providing guidance to public companies on their disclosure obligations relating to climate change (Release Nos. 33-9106; 34-61469). The release focused on recent business and legal developments regarding climate change and advised companies to more carefully evaluate the impact these developments may have on their business and whether such impact should be disclosed. 


As a technical matter, an interpretive release by the SEC does not create new legal requirements. Instead, it furthers a policy objective by “clarifying” the applicability of current SEC rules. In this case, the relevant SEC rules require the disclosure of material items associated with the impact of climate change on a business and cover a company’s risk factors, business description, legal proceedings, and management discussion and analysis. 


While the SEC’s Chair, Mary Schapiro, has carefully noted that this interpretive release should not be construed as the SEC making a statement about the facts surrounding climate change or global warning, the release does acknowledge an increase in climate-related legislation and international accords, as well as changing business trends where environmental issues have the potential to create new risks or opportunities for companies. In fact, in the release, the SEC specifically provided the following examples of areas where climate change may trigger disclosure requirements:


  •  Impact of Legislation and Regulation:  When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material.  In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.
  • Impact of International Accords:  A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
  • Indirect Consequences of Regulation or Business Trends:  Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies.  For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.
  • Physical Impacts of Climate Change: Companies should also evaluate for disclosure purposes, the actual and potential material impacts of environmental matters on their business.[1]

SEC Commissioner, Luis Aguilar, in speech discussing the SEC’s interpretive release concerning climate change, provided further guidance. He cautioned that each company “should ensure that it has sufficient information regarding [its] greenhouse gas emissions and other operational matters to evaluate the likelihood of a material effect arising from the subject legislation or regulation.”[2] Additionally, the SEC has long reminded companies that in determining whether certain information is material, the company should err on the side of disclosure.

The guidance provided in the SEC’s interpretive release is effective immediately and should be considered during the preparation of all future public company annual reports and SEC filings.

[1] Interpretative Release “Commission Guidance Regarding Disclosure Related to Climate Change,” dated February 2, 2010, is available at: http://www.sec.gov/rules/interp/2010/33-9106.pdf.

[2] Speech by SEC Commissioner Luis A. Aguilar: Responding to Investors’ Requests for SEC Guidance on Disclosures of Risks Related to Climate Change, dated January 27, 2010, available at: http://www.sec.gov/news/speech/2010/spch012710laa-climate.htm