Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by David Wagner.

Although this doesn’t make anything official, it’s an interesting development: the National Association of Clean Air Agencies (NACAA) reported yesterday that, with the onset of greenhouse gas (GHG) permitting only two months away, every state but one -- Texas -- is poised to ensure that sources can obtain preconstruction permits under the Clean Air Act come January 2, 2011.

As we’ve discussed on the blog, certain larger GHG emission sources will be subject to permitting requirements for planned construction projects under the Tailoring Rule starting on January 2, 2011. While most states already have the authority to permit GHGs under preconstruction permit – or Prevention of Significant Deterioration (PSD) – programs, USEPA proposed two rules to fill gaps in 13 state permitting programs that do not allow for the regulation of GHG emissions from industrial sources. The first proposed rule seeks to allow states that are not prepared to regulate GHGs to revise their State Implementation Plans. The second rule outlines USEPA's plan to establish a Federal Implementation Plan that would take over permitting programs in states that do not meet the requirements by January 2011.

NACAA, which is an association of air pollution control agencies in the United States, reviewed the air permitting program responses of the 13 states at issue. According to the NACAA report, air permitting agencies in all states on USEPA’s list (except for Texas) “have indicated that they will either revise their PSD rules by January 2, 2011 or very shortly thereafter, or accept a Federal Implementation Plan (FIP) that will give EPA authority to issue the GHG portion of PSD permits until state rules are revised." This provides some assurance that sources required to apply PSD controls to their GHG emissions will be able to obtain the necessary permits and avoid construction delays. NACAA’s state-by-state summary is available here.
 

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This post was written by David Wagner.

We’ve been discussing the November 30, 2010 REACH registration requirements on the blog, and now it’s time to address upcoming REACH enforcement efforts. On October 15, 2010, the European Chemicals Agency (ECHA) announced a project to inspect formulators of mixtures, that is, companies that purchase chemicals to prepare formulations such as paints, dyes, and industrial compounds. The enforcement project, which is designed to test REACH compliance, is slated for 2011.

In its announcement, the ECHA said that, while formulators of mixtures are not responsible for registering substances under REACH, they have supply chain responsibilities (e.g., safety data sheet requirements) that relate to obligations under REACH and the Regulation on the Classification, Labeling and Packaging of Substances and Mixtures (CLP Regulation). In particular, the ECHA stated “inspectors will control the supply-chain related obligations for substances in the mixtures prepared by formulators as well as the CLP notification requirements. They will also check if the substances placed on the market in mixtures are registered or pre-registered. In addition, the inspectors will raise awareness of the future obligations for Downstream Users with relation to the extended safety data sheet.”

The enforcement project, known as “REACH-EN-FORCE 2”, will be implemented by the EU’s Forum for Exchange of Information on Enforcement. Although REACH enforcement is the responsibility of Member State authorities, the Forum is tasked with, among other responsibilities, performing joint inspections and highlighting compliance problems.
 

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This post was written by Nicolle Bagnell and Ariel Nieland.

On October 19, 2010, the Pennsylvania Department of Environmental Protection (DEP) issued an open letter to all Susquehanna County citizens who have been affected by issues related to the apparent migration of natural gas from neighboring Marcellus Shale well sites into water supplies. In the letter, Secretary John Hanger states that the DEP has determined, based on "overwhelming evidence," that Cabot Oil & Gas Corporation is responsible for various instances of drinking water contamination in Dimock, PA. He also states that because Cabot has denied responsibility for the contamination and refused to "fix the problem," an agency called PENNVEST will provide the estimated $11.8 million in funds necessary to construct a water line from the Pennsylvania American Water Company treatment plant in Lake Montrose to Dimock residents so that they will have adequate water service in the interim. The state will then pursue recovery of the cost of the project directly from Cabot. Hanger notes that all residents along Route 29 will have the option to connect to the water line and that the construction project will not result in an increase in local taxes.

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This post was written by Adam Snukal.

On October 6, the Federal Trade Commission (FTC) issued its long awaited proposed revisions to its Green Guides. The revisions seek to clarify an array of existing and new environmental marketing terms, like "renewable energy" and proposes ways in which consumers reasonably understand terms, seals, and certifications. The FTC is seeking public feedback through December 10, 2010 and there will be many areas that will impact any marketer who engages in "green" marketing. Yesterday, John Feldman of Reed Smith and Keith Scarborough, Senior Vice President of Government Relations at the Association of National Advertisers, addressed key issues on the proposed revisions to the Green Guides. You can access the teleseminar materials here. If you have questions regarding the Green Guides or wish to explore how the revisions may impact your business, please contact either John Feldman or Adam Snukal.

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This post was written by David Wagner.

At this week’s Fifth Stakeholders’ Day, which was broadcast over the web, the European Chemicals Agency (ECHA) reported that a little less than half of the substance registrations – about 2,000 – have been submitted in advance of REACH's November 30, 2010 deadline. As we’ve discussed on the blog, the European Union’s REACH law requires about 5,000 substances produced in or imported into the European Union to be registered with the ECHA by November 30 or their supply on the EU market will be illegal. Next month’s deadline applies to substances produced in or imported in annual volumes of 1,000 metric tons or more, and to volumes of one metric ton or more of the most hazardous classes of substances that are carcinogenic, mutagenic, or toxic to reproduction.

At the October 4 event, ECHA stated that it expects about 3,000 substances to fall into the high volume category, and between 1,500 and 2,000 to fall into the lower volume hazardous categories. They also reported that the ECHA had received over 4,000 dossiers addressing over 2,000 substances and compared these numbers to an expected total of 38,000 dossiers covering almost 5,000 substances. Recall that, under REACH, companies producing the same substance are required to work together in a Substance Information Exchange Forum (SIEF) and share data. ECHA expects a lot more dossiers than substance registrations because once the lead registrant of a SIEF submits a dossier, other companies manufacturing or importing the same substance must submit supplementary dossiers.

ECHA also reported that, to allow companies to check on the status of substance registrations, they will publish a list of registered substances by the end of October, and update that list weekly. When it’s available, we’ll publish a link to the ECHA’s list on our blog.
 

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This post was written by Adam Snukal.

In what was the next of the Federal Trade Commission’s (“FTC”) pillar documents to undergo an overhaul, the FTC yesterday disclosed its proposed revisions to its Guides for the Use of Environmental Marketing Claims (the “Green Guides”). The Green Guides (16 C.F.R. Part 260) set forth the FTC’s position on permissible environmental claims in advertising. The Green Guides were first issued in 1992 and then revised in 1996 and 1998. The proposed revisions have been released for public comments through December 10, 2010, at which time the FTC will decide on those changes that make the final cut. 

The FTC has communicated that its goal in releasing the Green Guides’ revisions is to provide marketers with guidance in helping them avoid making misleading environmental claims, and also to update the guides and make them easier for companies to understand and use. According to FTC Chairman, Jon Leibowitz: "In recent years, businesses have increasingly used 'green' marketing to capture consumers' attention and move Americans toward a more environmentally friendly future. But what companies think green claims mean and what consumers really understand are sometimes two different things. The proposed updates to the Green Guides will help businesses better align their product claims with consumer expectations." Let’s see…

Adhering to many of the same trends and areas of focus upon which the FTC undertook its revision of the endorsement and testimonial guidelines last year, the FTC has sought to curb unqualified general environmental benefits that are nearly impossible to substantiate, to limit claims as much as possible to those benefits actually realized by consumers, and to ensure advertisers make their disclosures clearly and prominently.

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