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September 23

Regulatory Update: California Safer Consumer Product (SCP) Regulations (also known as the “Green Chemistry” law):

The California Safer Consumer Products Act went into effect on October 1, 2013. The Act directs the California Department of Toxic Substances Control (DTSC) to identify and prioritize chemical ingredients in consumer products that may pose health and environmental risks, and to determine how best to limit or reduce the use of those chemicals. The SCP regulations broadly affect the supply chains of manufacturers, importers, assemblers, and retailers of a variety of consumer products, requiring them to seek safer alternatives to certain chemicals in certain products.

As part of its duties under the Act, DTSC must issue a Priority Product Work Plan identifying the product categories it will evaluate for addition to the Priority Products list during the next three years. A Priority Product is a consumer product that contains one or more chemicals, known as Candidate Chemicals, which have a “hazard trait” that can harm people or the environment. Once a product-chemical combination is listed as a “Priority Product,” a manufacturer, retailer, assembler, or importer of the Priority Product has sixty (60) days to provide DTSC with a Priority Product Notification. The Notification must identify the entity’s role as a manufacturer, retailer, assembler, or importer, as well as a description of type, brand name(s), and product names(s) of the Priority Product. A preliminary Alternative Analysis must then be conducted within one-hundred-and-eighty (180) days to determine whether the product can be made with safer substitute chemicals, not only with regard to the risk during product use, but also during their manufacture and after disposal (generally explained as the “life-cycle” approach).

DTSC issued its first draft Priority Product Work Plan (Work Plan) on September 12, 2014. The Work Plan identifies seven product categories:

(1) Beauty, Personal Care and Hygiene Products;
(2) Building Products: Paints, Adhesives, Sealants, and Flooring;
(3) Household, Office Furniture and Furnishings;
(4) Cleaning Products;
(5) Clothing;
(6) Fishing and Angling Equipment; and
(7) Office Machinery (Consumable Products).

For each product category, the Work Plan provides product examples and identifies potential Candidate Chemicals.

DTSC will host workshops regarding the scope and content of the Work Plan on September 25 and 29, 2014. Manufacturers, retailers, assemblers, and importers of consumer products in these seven product categories should ensure they have an inventory of all the chemical ingredients in such products to meaningfully participate during the workshops. The workshops may provide them with important information relating to opportunities to replace a chemical within a specific product, or shared concerns to petition DTSC to exclude a particular product from the Priority Product list. The deadline to submit comments on the draft Work Plan is October 13, 2014. For more information, click here.

© 2014 – Hartman King PC. All rights reserved. The information in this article has been prepared by Hartman King PC for informational purposes only and does not constitute legal advice.

For more information, contact:
Hartman King PC

September 10

Case Alert: CTS Corp. v. Waldburger

In CTS Corp. v. Waldburger et al., a 7-2 decision delivered by Justice Anthony Kennedy, the U.S. Supreme Court narrowed the scope of the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA) preemption of state law. (134 S.Ct. 2175 (2014) (hereinafter “CTS Corp.”)). CERCLA was enacted in 1980 to provide a federal cause of action to recover cleanup costs resulting from the release of hazardous substances and pollution into the environment. Section 9658 of CERCLA starts the running of the statute of limitations “when a plaintiff discovers, or reasonably should have discovered, that the harm…was caused by the contaminant.” (Id. at 2180.) This type of statute of limitations is known as the discovery rule. If a tort claim is brought under state law, CERCLA’s section 9658 preempts state statutes of limitation that are in conflict with CERCLA’s statute of limitations. (42 U.S.C. § 9658(a)(1).). Lower courts, however, have disagreed as to whether CERCLA preempts state statutes of repose. In CTS Corp., the Court held that section 9658 does not preempt state statutes of repose and limited its preemptive power to only statutes of limitation.

This case arose out of North Carolina, which has a statute of repose that limits the time in which a tort suit can be brought against a defendant to 10 years following the defendant’s last culpable act. (CTS Corp, 134 S.Ct. at 2181.) Between 1959 and 1985, CTS Corporation operated an electronics plant that used hazardous chemicals in the manufacture and disposal of its electronics. In 2009, the Environmental Protection Agency informed the landowners that these hazardous chemicals had contaminated the groundwater under the property impacting their well. However, the Court determined that CTS Corporation’s last culpable act was when it sold the property in 1987. In 2011, 24 years after CTS Corporation sold the property, the landowners brought a state law nuisance action against CTS Corporation for contaminating their well water. The District Court dismissed the plaintiffs’ claim, holding that it was barred by the 10 year statute of repose. The Court of Appeal interpreted section 9658 more broadly to preempt statutes of repose and reversed. The Supreme Court granted certiorari.

The distinction between statutes of limitation and statutes of repose has not always been clear, and the Court acknowledged that at the time CERCLA was enacted the term “statute of limitations” could be used to refer to both. The time period that is set by a statute of limitations is based on the date when a claim accrues, or “when the plaintiff can file suit and obtain relief.” (Id. at 2182, (internal quotations omitted).) A statute of limitations incentivizes plaintiffs to diligently pursue their claims while the evidence is fresh. Statutes of repose, on the other hand, are measured from the date of defendant’s last culpable act or omission. (Id.) Statutes of repose protect defendants by creating a legislatively determined end date to potential liability; they are “said to provide a fresh start or freedom from liability.” (Id. at 2183.) Although, the Court acknowledged ambiguity in the meaning of the terms, it found a report prepared by the Senate Committee on Environment and Public Works to be persuasive, if not dispositive.

The report, Injuries and Damages from Hazardous Waste –Analysis and Improvement of Legal Remedies, distinguished between statutes of limitations and statutes of repose, and recommended that CERCLA preempt both types of state laws in order to protect against the “long latency periods involved in harm caused by toxic substances.” (Id. at 2181.) Nevertheless, section 9658 refers explicitly to statutes of limitations and makes no mention of statutes of repose. The Court reasoned that the language in section 9658 was adopted by Congress in the face of a specific recommendation to preempt both kinds of statutes in the report. Furthermore, statutes of repose were left out of the language in 9658 because Congress rejected the reports recommendation, and decided to leave the states with the authority to enact statutes of repose to limit a defendant’s liability after a certain date. The Court further noted that section 9658 incorporates the doctrine of equitable tolling, whereby a statute of limitations can be tolled due to circumstances that prevented the plaintiff from pursuing her claim. The Court emphasized that equitable tolling only applies to statutes of limitation because the policy behind a statute of limitations, a plaintiff’s diligent pursuit of claims, is not served when circumstances justify the plaintiff’s inability to do so. These policy considerations do not apply to statutes of repose because “the repose period is fixed” and “mandates that there shall be not cause of action beyond a certain point.” (Id. at 2187.) The Court concludes that Congress adopted section 9658 to specifically preempt statutes of limitation and not statutes of repose.

The Court reversed the lower court’s decision and found that the plaintiff’s state law nuisance action was barred by North Carolina’s statute of repose. The Court narrowly construed section 9658 and limited CERCLA’s preemptive strength. Statutes of repose have become more popular among the states due to the adoption of the discovery rule for statutes of limitation. (1 Toxic Torts Litigation Guide § 7:54.) Thus, the Court’s narrow reading of section 9658 could leave plaintiffs in states that have statutes of repose without a tort action to recover personal injury and property damage costs. On the other hand, it will prevent defendants from being brought into court for actions that occurred in the distant past. This ruling could also continue to encourage states to pass statutes of repose if they elect to limit a defendant’s liability for torts, including those that involve historic releases of hazardous substances. However, the Court’s ruling does not diminish a plaintiff’s ability to pursue recovery of clean-up costs under CERCLA.

© 2012 – Hartman King PC. All rights reserved. The information in this article has been prepared by Hartman King PC for informational purposes only and does not constitute legal advice.

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Hartman King PC

September 5

2014 Best of the Bar Winner: Jennifer Hartman King

A King Williams Law LLP attorney, Jennifer Hartman King, was recognized in The Sacramento Business Journal’s annual “Best of the Bar” special publication. The “Best of the Bar” focuses on local attorneys who have been nominated by their peers and vetted by a panel of their peers. Jennifer is one of the founding partners of King Williams Law LLP. This is the second year in a row that Jennifer has been recognized for her accomplishments in environmental law.

Click here for the full story about Jennifer Hartman King.

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Hartman King PC

September 5

Jennifer Hartman King rated as a Super Lawyer

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Click Here to visit Super Lawyers.

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Hartman King PC

February 15

EPA Seeks Comments From Retail Sector Regarding Hazardous Waste Management

The U.S. Environmental Protection Agency (EPA) is releasing the Notice of Data Availability (NODA) for Hazardous Waste Management in the Retail Sector. EPA’s Office of Solid Waste and Emergency Response indicates that they are seeking additional information on areas that the retail industry has identified as impediments to implementing hazardous waste regulations. The agency is soliciting information concerning the hazardous waste management practices of the retail sector and requesting suggestions for improving hazardous waste regulations for retail operations. Specifically, EPA seeks information and hazardous waste data concerning the following topics:

• Episodic generation
• Retails stores’ programs for handling hazardous waste
• Hazardous waste training for employees
• Aerosol cans
• Transportation and reverse logistics
• Reverse logistics centers
• Sustainability efforts undertaken by retail facilities

All comments on the NODA should be submitted by 60 days from publication and should be identified by Docket ID No. EPA-HQ-RCRA-2012-0426. The action is part of the agency’s regulatory reform plan that implements the directive given in Executive Order 13563, which directs agencies to make regulatory programs more effective or less burdensome in achieving regulatory objectives. EPA identified improving the effectiveness of the hazardous waste policies, guidances or regulations for the retail sector as one of its priorities.

For a copy of the NODA, click here.

© 2014 – Hartman King PC. All rights reserved. The information in this article has been prepared by Hartman King PC for informational purposes only and does not constitute legal advice.

For more information, contact:
Hartman King PC

February 8

Jennifer Hartman King: 2013 Best of the Bar

September 6, 2013

The Sacramento Business Journal recognized Jennifer Hartman King’s accomplishments in its first annual “Best of the Bar” special publication.  The Best of the Bar focuses on local attorneys who have been nominated by their peers and vetted by a panel of their peers. Jennifer currently serves as King Williams & Gleason’s Managing Partner and specializes in environmental law.

Click here for the full story.

For more information, contact:
Hartman King PC