April 3, 2020

April 02, 2020

Subscribe to Latest Legal News and Analysis

April 01, 2020

Subscribe to Latest Legal News and Analysis

March 31, 2020

Subscribe to Latest Legal News and Analysis

Recent Federal Developments February 15, 2020 EPA /FDA / TSCA / FIFRA /TRI

TSCA Stakeholders Beware: Enforcement Is On The Rise: Federal enforcement of chemical product laws is alive and well, despite a broadly held misconception to the contrary. We have seen over the past 18 months or so an uptick in federal enforcement under TSCA and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). We believe we will see this trend continue in 2020. More information is available in our February 11, 2020, memorandum. We will devote a second client alert to FIFRA enforcement.

TSCA/FIFRA/TRI

Certain PFAS Added To The TRI: Effective January 1, 2020, 160 per- and polyfluoroalkyl substances (PFAS) were added to the list of chemicals covered by the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The PFAS were added by Section 7321 of the National Defense Authorization Act for Fiscal Year (FY) 2020 (NDAA), which was signed into law on December 20, 2019. According to EPA’s website, reporting for these chemicals will be due to EPA by July 1, 2021, for calendar year 2020 data. TRI reporting requirements apply to these PFAS (e.g., supplier notification) and TRI reporting exemptions, if applicable, are available for these chemicals. The NDAA establishes TRI manufacturing, processing, and otherwise use reporting thresholds of 100 pounds for each of the listed PFAS. EPA states that it will soon revise the EPCRA Section 313 list of reportable chemicals in the Code of Federal Regulations (C.F.R.) to include the 160 PFAS added by the NDAA.

EPA Releases Draft Risk Evaluation Of Carbon Tetrachloride: On January 24, 2020, EPA released the draft risk evaluation of carbon tetrachloride, “a solvent primarily used in the manufacturing of chlorinated compounds and petrochemicals.” Carbon tetrachloride is the seventh of the first ten chemicals to undergo risk evaluation under the amended TSCA. EPA published a Federal Register notice on January 27, 2020, announcing the availability of the draft risk evaluation and beginning a 60-day comment period. 85 Fed. Reg. 4658. The TSCA Science Advisory Committee on Chemicals (SACC) held a preparatory virtual meeting on February 4, 2020, to consider the scope and clarity of the draft charge questions for the peer review. On February 25-26, 2020, SACC will hold an in-person public meeting to consider and review the draft risk evaluation. EPA will provide comments submitted on the draft risk evaluation on or before February 19, 2020, to SACC for its consideration before the meeting. Comments received after February 19, 2020, and prior to the oral public comment period during the meeting will be available to SACC members for their consideration during the meeting. Comments on the draft risk evaluation are due March 27, 2020. EPA made the following initial determinations on risk:

  • EPA did not find risk to the environment or workers; and

  • EPA’s draft risk evaluation preliminarily found unreasonable risks associated with chronic inhalation exposure for occupational non-users.

More information, including an insightful commentary, is available in our January 27, 2020, memorandum, “EPA Releases Draft Risk Evaluation of Carbon Tetrachloride.”

EPA Issues Preliminary Lists Identifying Manufacturers Subject To Fee Obligations For EPA-Initiated Risk Evaluations Under TSCA Section 6: On January 27, 2020, EPA published the preliminary lists of manufacturers (including importers) of the 20 chemical substances that EPA designated as high-priority substances for risk evaluation and for which fees will be charged. 85 Fed. Reg. 4658. EPA states that where appropriate, entities may also avoid or reduce fee obligations by making certain certifications consistent with the final rule on fees for the administration of TSCA. According to the notice, EPA expects to publish final lists of manufacturers (including importers) subject to fees no later than concurrently with the publication of the final scope document for risk evaluations of the 20 high-priority substances. Manufacturers (including importers) identified on the final lists will be subject to applicable fees. EPA states that it developed each preliminary list “using the most up-to-date information available, including information submitted to the Agency (e.g., information submitted under TSCA section 8(a) (including the Chemical Data Reporting (CDR) Rule) and section 8(b), and to the Toxics Release Inventory (TRI)).” More information on the 20 substances designated as high-priority substances is available in our January 24, 2020, blog item and December 20, 2019, memorandum, “Final List of High-Priority Chemicals Will Be Next to Undergo Risk Evaluation under TSCA.” More information on the final TSCA fees rule is available in our September 28, 2018, memorandum, “EPA Issues Final TSCA Fees Rule.” Comments on the list are due by March 27, 2020.

EPA will host a conference call on February 24, 2020, from 12:30 to 1:00 p.m. (EST) to review certain provisions of the final rule on fees for the administration of TSCA. EPA will give a brief overview of the fees associated with an EPA-initiated risk evaluation, the entities subject to fees, requirements for self-identification, and how fees will be divided among those identified on final lists. Questions can be submitted in advance to Ryan Schmit at schmit.ryan@epa.gov. To attend, call the following number and enter the conference ID: Call-in Number: (877) 317-0679; Conference ID: 3372249.

EPA Responds To Coronavirus Cases: On January 29, 2020, EPA announced that it has activated its Emerging Viral Pathogen Guidance for Antimicrobial Pesticides (Guidance) in response to the discovery of the novel coronavirus (2019-nCoV). According to the World Health Organization (WHO), coronaviruses cause numerous illnesses, from the common cold to Severe Acute Respiratory Syndrome (SARS). First identified in Wuhan, China, the 2019-nCoV coronavirus is a new strain that had not been previously seen in humans. EPA developed its Guidance in 2016 to address emerging pathogens. Under this Guidance, EPA provides pesticide registrants with a voluntary “two-stage process to enable use of certain EPA-registered disinfectant products against emerging viral pathogens not identified on the product label.” These pathogens may not be identified on a label because the occurrence of emerging viral pathogens is less common and predictable than established pathogens and because the pathogens are often unavailable commercially and standard methods for laboratory testing may not exist. EPA’s intent is for the Guidance to “expedite the process for registrants to provide useful information to the public” regarding products that may be effective against emerging viral pathogens associated with certain human or animal disease outbreaks. Registrants with a pre-qualified emerging viral pathogen designation can include an efficacy statement in technical literature distributed to health care facilities, physicians, nurses, public health officials, non-label-related websites, consumer information services, and social media sites. Additional information on the Guidance is available here and here. More information is available in our January 31, 2020, blog item.

EPA Issues Interim Registration Review Decision For Glyphosate: On February 3, 2020, EPA issued a Federal Register notice announcing the availability of an interim registration review decision for glyphosate. 85 Fed. Reg. 5957. EPA previously issued a proposed interim registration review decision (PID) for glyphosate for comment in April 2019. At the time EPA issued the glyphosate PID for comment, EPA also issued a draft human health risk assessment and a preliminary ecological risk assessment for glyphosate. After reviewing the comments received concerning these assessments, EPA has not made any revisions to either assessment. EPA has determined that there are no dietary, residential, bystander, or occupational human health risks of concern associated with glyphosate use. EPA has also determined that there are some potential risks to plants, birds, mammals, and invertebrates from glyphosate use, but that these can be appropriately mitigated by label changes requiring enforceable spray drift management measures and adding a warning concerning the potential hazards to non-target organisms. EPA also has proposed some new measures to manage the development and spread of herbicide-resistant weeds. EPA has generally retained the proposed labeling changes identified in the PID, except for some modest adjustments to the proposed language concerning droplet size restrictions and swath displacement restrictions for aerial applications, and removal of spray drift advisory language for airblast application. Despite considerable publicity recently concerning purported carcinogenic risks for glyphosate, including allegations that human exposure to glyphosate can be linked to non-Hodgkin’s lymphoma, EPA has determined that glyphosate is not likely to be a human carcinogen and has steadfastly adhered to this basic conclusion. EPA made this determination for glyphosate after convening a meeting of the FIFRA Scientific Advisory Panel (SAP) to evaluate the carcinogenic potential of glyphosate in 2016. More information is available in our February 6, 2020, blog item.

EPA Publishes 2018 TRI Report And Analysis: On February 11, 2020, EPA published the 2018 TRI National Analysis, showing that recycling of TRI chemical wastes increased nationwide, indicating that companies have continued to find ways to implement new source reduction activities and reduce the quantities of TRI chemicals released into the environment. According to EPA, the 2018 National Analysis expands the focus on geographical trends in chemical waste management across the United States. New features include profiles exploring the diversity of industrial operations in each EPA region and a closer look at data from the hazardous waste management sector and the aerospace manufacturing sector. EPA states that the Analysis showcases industry practices for managing waste and reducing pollution at nearly 22,000 facilities that submitted TRI data for calendar year 2018. Highlights include:

  • Releases of TRI-covered chemicals into the environment from the manufacturing sector were lower than expected based on economic activity;

  • Facilities reported initiating 3,120 new activities to prevent or reduce the creation of TRI chemical waste; and

  • Nationally, the percent of industrial TRI chemical waste that is recycled instead of released continued to increase.

EPA notes that it published a new tool on the TRI website intended to help explain the data reported by the metal mining sector. The interactive graphic, developed with input from stakeholders, explains how metal mines operate, and generally how and where releases of TRI-listed chemicals happen.

EPA Will Hold ECHO Webinar On February 18, 2020: EPA will hold its next Enforcement and Compliance History Online (ECHO) webinar on February 18, 2020, at 1:30-2:30 p.m. (EST). The webinar will provide an overview of the data in ECHO and guide users through using the site to answer environmental compliance and enforcement questions. EPA will demonstrate the capabilities of the ECHO Facility Search to answer questions such as: How to search for a specific facility; How to search for facilities in a community; and How to search for facilities releasing a pollutant. Registration is now open. ECHO video tutorials and recorded webinars are available at any time.

Deadline For Filing Annual Pesticide Production Reports Is March 1, 2020: The March 1, 2020, deadline for all establishments, foreign and domestic, that produce pesticides, devices, or active ingredients to file their annual production for the 2019 reporting year is fast approaching. Pursuant to FIFRA Section 7 (7 U.S.C. § 136e), “any producer operating an establishment registered [under Section 7] shall inform the Administrator within 30 days after it is registered of the types and amounts of pesticides and, if applicable, active ingredients used in producing pesticides” and this information “shall be kept current and submitted to the Administrator annually as required.” Reports must be submitted on or before March 1 annually for the prior year’s production. The report, filed through the submittal of EPA Form 3540-16: Pesticide Report for Pesticide-Producing and Device-Producing Establishments, must include the name and address of the producing establishment and pesticide production information such as product registration number, product name, and amounts produced and distributed. The annual report is always required, even when no products are produced or distributed. More information is available in our January 22, 2020, blog item.

EPA Pollution Prevention Grant Program Requests Applications: The EPA Pollution Prevention (P2) Grant Program has announced the availability of funds to provide technical assistance (e.g., information, training, tools) to businesses to encourage the development and implementation of source reduction practices. EPA states that source reduction practices can help businesses save money by reducing resource use, expenditures, waste, and liability costs, while at the same time reducing their environmental footprint and helping to protect human health and the environment. According to EPA, P2 grants are expected to be awarded in each EPA region and will be funded in the form of grants or cooperative agreements. Applications for FYs 2020 and 2021 are due March 31, 2020. EPA will hold an informational webinar on February 19, 2020, from 2:00 p.m. to 3:30 p.m. (EST). More information is available in our February 3, 2020, blog item.

RCRA/CERCLA/CWA/CAA/PHMSA/SDWA

NGOs Petition EPA To Regulate PFAS As Hazardous Waste: On January 15, 2020, a coalition of non-governmental organizations (NGO) petitioned EPA for two actions under the Resource Conservation and Recovery Act (RCRA):

  • That EPA promulgate regulations designating wastes containing PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonic acid), GenX chemicals, and any combination of these, as hazardous wastes subject to the management and disposal requirements of RCRA Subtitle C of RCRA; and

  • That the RCRA hazardous waste designations for PFOA and PFOS wastes extend to cover the full chemical subclass of each -- long-chain perfluoroalkyl carboxylates (LCPFAC) and long-chain perfluoroalkane sulfonates (LCPFAS), respectively -- because the characteristics of LCPFACs and LCPFASs demonstrate that class-based regulation is appropriate.

The petition argues that to protect human health and the environment, “it is vital that EPA curtail future contamination by immediately regulating management and disposal of these wastes.” The petitioners include the Green Science Policy Institute, Alaska Community Action on Toxics, Clean Cape Fear, the Buxmont Coalition for Safer Water, the PFAS Alliance, and Fountain Valley Clean Water Coalition.

EPA Publishes Final WOTUS Rule: On January 23, 2020, EPA and the Department of the Army (Army) announced the final Navigable Waters Protection Rule, which defines “Waters of the United States” (WOTUS) and thereby establishes federal regulatory authority under the Clean Water Act (CWA). EPA states that for the first time, the agencies “are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before.” The CWA explicitly directs EPA and the Army to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. The four clear categories of waters that are federally regulated include:

  • The territorial seas and traditional navigable waters;

  • Perennial and intermittent tributaries to those waters;

  • Certain lakes, ponds, and impoundments; and

  • Wetlands adjacent to jurisdictional waters.

The final rule also details 12 categories of exclusions, features that are not WOTUS, such as features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems. The final rule clarifies key elements related to the scope of federal CWA jurisdiction, including:

  • Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments;

  • Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry; and

  • Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.

EPA has posted the pre-publication version of the final rule. On February 13, 2020, EPA and the Army held a public webcast to help explain the key elements of the final rule.

EPA Signs Proposed Rule Not To Impose Financial Responsibility Requirements For Facilities In The Chemical Manufacturing Industry: On February 10, 2020, EPA Administrator Andrew Wheeler signed a proposed rule that would not impose financial responsibility requirements for facilities in the chemical manufacturing industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Section 108(b) addresses the promulgation of regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. As required by CERCLA Section 108(b), the proposed rule assesses the need for financial responsibility requirements for the chemical manufacturing industry. Publication of the proposed rule in the Federal Register will begin a 60-day comment period. EPA has posted a pre-publication version of the proposed rule, as well as a fact sheet and key background documents for the proposed rule.

EPA Requests Comments On Inventory Of U.S. GHG Emissions And Sinks: 1990-2018: EPA published a Federal Register notice on February 12, 2020, announcing that the Draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2018 is available for public review. 85 Fed. Reg. 7999. The annual report provides a comprehensive accounting of total greenhouse gas (GHG) emissions for all man-made sources in the United States. The gases covered by the Inventory include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride. The Inventory also calculates carbon dioxide removal from the atmosphere by “sinks,” e.g., through the uptake of carbon and storage in forests, vegetation, and soils. EPA requests recommendations for improving the overall quality of the Inventory report. Comments are due March 13, 2020.

FDA

VQIP Application Portal Opens: On January 1, 2020, the U.S. Food and Drug Administration (FDA) opened the Voluntary Qualified Importer Program (VQIP) application portal for the benefit period between October 1, 2020, and September 30, 2021. Benefits for approved VQIP importers include expedited entry into the United States, limited examination and/or sampling of imported food, and possible prioritization by FDA. The portal will remain open until May 31, 2020.

FDA VQIP Request For Comments: On February 5, 2020, FDA announced an opportunity for public comment on FDA’s estimated reporting burdens associated with the Food Safety Modernization Act (FSMA) VQIP. 85 Fed. Reg. 6556. FDA estimates burdens for Quality Assurance Program (QAP) preparation, QAP modification, and VQIP applications. FDA is accepting comments through April 6, 2020.

FDA Bioterrorism Act Request For Comments: On February 6, 2020, FDA announced an opportunity for public comment on FDA’s estimated reporting burdens associated with the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act) as amended by FSMA. 85 Fed. Reg. 6955. FDA estimates annual reporting burdens associated with prior notice submissions, submission cancellations, and requests for review and post-hold submission. FDA is accepting comments through April 6, 2020.

Food Additive Petition Submitted For Calcium Formate: On February 11, 2020, FDA announced that LANXESS Corporation filed a petition proposing use of calcium formate as a feed acidifying agent in complete feeds for swine and poultry. 85 Fed. Reg. 7682. If the petition is approved, 21 C.F.R. Part 573, entitled Food Additives Permitted in Feed and Drinking Water of Animals, would be amended to include the additive and any applicable restrictions.

NANOTECHNOLOGY

ECHA Publishes Q&A From Webinar On Revised REACH Annexes For Nanomaterials: As of January 1, 2020, companies must provide more information on nanomaterials on the European Union (EU) market under the updated Annexes to the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation. The European Chemicals Agency (ECHA) organized a webinar on November 12, 2019, on the revised annexes and how companies can prepare to meet the new requirements. In December 2019, ECHA published a questions and answers (Q&A) document that compiles and groups Q&As received during the webinar. In the document, ECHA further elaborated on the replies and complemented them with additional advice intended to support registrants.

EPA Lists FIFRA-Registered Products Covered By Generic Data Call-In For Nanosilver: On January 24, 2020, EPA posted a December 13, 2019, memorandum to Docket EPA-HQ-OPP-2011-0370, the nanosilver registration review docket. The memorandum lists the 12 products for which EPA issued a generic data call-in (DCI) as part of the nanosilver case (5042). EPA issued the DCIs on August 31, 2019, and states that they can be accessed in the docket. More information is available in our October 23, 2018, blog item on the final work plan for the nanosilver registration review process under FIFRA.

NNCO Will Hold Workshops, Webinars, And Meetings In 2020: On January 27, 2020, the National Nanotechnology Coordination Office (NNCO) published a Federal Register notice concerning public meetings under the National Nanotechnology Initiative (NNI). 85 Fed. Reg. 4726. According to the notice, the NNCO will hold one or more workshops, webinars, networks, and Community of Interest teleconferences between the publication date of the Federal Register notice and December 31, 2020. Attendance information, including addresses, will be posted at https://www.nano.gov. Information about upcoming workshops and webinars will be posted at https://www.nano.gov/events/meetings-workshops and https://www.nano.gov/PublicWebinars. More information on the Communities of Interest is available at https://www.nano.gov/Communities.

ACGIH® TLV®-CS Committee Seeks Information On Carbon Nanotubes: The American Conference of Governmental Industrial Hygienists (ACGIH®) Threshold Limit Values for Chemical Substances (TLV®-CS) Committee has included carbon nanotubes on its 2020 list of chemical substances and other issues under study. Being placed on the under study list indicates that the TLV®-CS Committee has selected carbon nanotubes for development of a threshold limit value (TLV®). The TLV®-CS Committee seeks substantive data and comments, and will consider only those addressing issues of health and exposure, not economic or technical feasibility. More information is available in our February 5, 2020, blog item.

NTP Board Of Scientific Counselors Will Discuss Human Exposure To Nanoplastics And Microplastics: On January 31, 2020, the National Toxicology Program (NTP) published a Federal Register notice announcing that the Board of Scientific Counselors will meet on February 21, 2020. 85 Fed. Reg. 5676. According to the preliminary agenda for the meeting, the meeting will include a presentation by Dr. Anil Patri, FDA, National Center for Toxicological Research, on “Understanding Human Exposure to Nanoplastics/Microplastics: Novel Agents Bring Novel Challenges.” The meeting will be held by webcast only and is open to the public. Written comments will be accepted, and registration is required for oral comment and to access the webcast.

EC Requests Scientific Advice From SCCS On The Safety Of Nanomaterials In Cosmetics: On February 6, 2020, the Scientific Committee on Consumer Safety (SCCS) announced on that the European Commission (EC) has requested scientific advice on the safety of nanomaterials in cosmetics. The EC requests that SCCS determine the nanomaterials, as published in the recent catalogue of nanomaterials of 2019, for which specific concerns can be identified and justified to establish a priority list of nanomaterials for risk assessment (Article 16(4) Reg.1223/2009); and that for the nanomaterials with inconclusive SCCS opinions, SCCS assess if a potential risk can be identified according to Article 16(6) Reg.1223/2009. To avoid conflicting opinions with other bodies, the EC invites SCCS to consult the Scientific Committee on Health, Environmental and Emerging Risks (SCHEER).

EPA Issues Proposed Registration Decision For New Nanosilver Product: EPA announced on February 12, 2020, that it is seeking public input on a proposal to incorporate a new nanosilver pesticide product into textiles to combat odors, discoloration, and other signs of wear. The proposed registration decision is for NSPW Nanosilver, and the proposed pesticide product, Polyguard-NSPW Master Batch (Polyguard), will be incorporated into textiles to suppress bacteria, algae, fungus, mold, and mildew, which cause odors, discoloration, stains, and deterioration. According to EPA, based on its human health and ecological risk assessment, it has preliminarily determined that the new active ingredient in Polyguard meets the regulatory standard under FIFRA for use as a materials preservative in textiles. EPA invites public comment on its proposal and preliminary findings. Comments are due March 13, 2020. More information is available in Docket ID EPA-HQ-OPP-2020-0043.

NIA Publishes Position Paper On Terminology Of “Nanoplastics”: On February 13, 2020, the Nanotechnology Industries Association (NIA) published a position paper entitled ‘Nanoplastics’: Use of suitable terminology for representation in waste, degradation of plastics and presence in the environment. In the paper, NIA and its members urge caution and clarity when referring to plastics as small particles or fragments. NIA notes that incidental “nanoplastics,” or more specifically incidental plastic nanoscale materials, can be formed by degradation of plastics or from wear. Manufactured “nanoplastics” (i.e., plastic nanomaterials) are “intentionally produced at the nanoscale to allow for specific product characteristics. The presence of manufactured ‘nanoplastics’ within the environment is expected to be very low as they are incorporated into products (i.e. bound in a matrix).” According to the position paper, “[t]o NIA’s current knowledge there are very few intentionally produced nanoplastics, with use largely restricted to scientific research within laboratories.” B&C is a proud NIA member.

ECHA Will Hold Webinar On Registering Nanoforms Under REACH: On February 24, 2020, ECHA will hold a webinar on “Registering nanoforms: practical advice.” ECHA invites stakeholders to join the webinar to hear about the registrations received so far, key lessons learned, and best practices. Participants will have an opportunity to ask questions on how to prepare registration dossiers for their nanoforms and get practical advice from ECHA’s experts for successfully submitting registrations.

BIOBASED/RENEWABLE PRODUCTS

BRAG Biobased Products News And Policy Report: B&C consulting affiliate, B&C® Consortia Management, L.L.C. (BCCM), manages the Biobased and Renewable Products Advocacy Group (BRAG®). For access to a weekly summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go to http://www.braginfo.org.

LEGISLATIVE

CLEAN Future Act Would Achieve 100 Percent Clean Economy: On January 28, 2020, House Energy and Commerce Committee Chair Frank Pallone, Jr. (D-NJ), Environment and Climate Change Subcommittee Chair Paul Tonko (D-NY), and Energy Subcommittee Chair Bobby L. Rush (D-IL) released draft text of the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act, “an ambitious new climate plan to ensure the United States achieves net-zero greenhouse gas pollution no later than 2050.” The CLEAN Future Act proposes sector-specific and economy-wide solutions to address the “climate crisis.” The current draft of the bill “incorporates both proven and novel concepts, presenting a comprehensive set of policy proposals within the Committee’s jurisdiction that will put the U.S. on the path to a clean and prosperous economy.” The Committee requests feedback and recommendations from all stakeholders as it continues to expand and refine the CLEAN Future Act. The Committee intends to hold hearings and stakeholder meetings throughout 2020.

Senators Introduce Bill To Require Cleanup Of PFAS From Drinking Water: Senators Bernie Sanders (I-VT), Jeff Merkley (D-OR), and Ed Markey (D-MA) introduced the Prevent Future American Sickness Act of 2020 (S. 3227) on January 28, 2020. According to Sanders’s January 29, 2020, press release, the bill would require EPA to designate PFAS compounds as hazardous substances to hold polluters accountable for cleaning up contamination. The legislation also would provide grants to households and communities to filter out PFAS compounds safely from their drinking water, while prohibiting the use of PFAS in food packaging and containers. The bill also bans waste incineration of PFAS firefighting foam, “a major source of airborne PFAS pollution.”

House Committee Advances Bills Addressing Climate Change And Biodiversity Loss By Protecting Endangered Species And Habitats: On January 29, 2020, the House Committee on Natural Resources approved nine bills, including “key Natural Resources measures to reverse President Trump’s efforts to gut the Endangered Species Act and to reduce climate change impacts on at-risk species.” The Committee’s January 29, 2020, press release lists the following bills approved by the Committee:

  • National Heritage Area Act of 2019 (H.R. 1049): To authorize a National Heritage Area Program, and for other purposes;

  • Young Fishermen’s Development Act of 2019 (H.R. 1240): To preserve U.S. fishing heritage through a national program dedicated to training and assisting the next generation of commercial fishermen;

  • Safeguarding America’s Future and Environment Act (H.R. 2748): To establish an integrated national approach to respond to ongoing and expected effects of extreme weather and climate change by protecting, managing, and conserving the fish, wildlife, and plants of the United States, and to maximize government efficiency and reduce costs, in cooperation with state, local, and tribal governments and other entities, and for other purposes;

  • Wildlife Corridors Conservation Act of 2019 (H.R. 2795): To establish National Wildlife Corridors to provide for the protection and restoration of certain native fish, wildlife, and plant species, and for other purposes;

  • H.R. 2956: To provide for the establishment of the Western Riverside County Wildlife Refuge;

  • H.R. 3399: To amend the Nutria Eradication and Control Act of 2003 to include California in the program, and for other purposes;

  • Protect America’s Wildlife and Fish In Need of Conservation Act of 2019 (H.R. 4348): To terminate certain rules issued by the Secretary of the Interior and the Secretary of Commerce relating to endangered and threatened species, and for other purposes;

  • Climate-Ready Fisheries Act of 2019 (H.R. 4679): To require the Comptroller General of the United States to submit to Congress a report examining efforts by the Regional Fishery Management Councils, the Atlantic States Marine Fisheries Commission, and the National Marine Fisheries Service to prepare and adapt U.S. fishery management for the impacts of climate change, and for other purposes; and

  • Tribal Wildlife Corridors Act of 2019 (H.R. 5179): To require the Secretary of the Interior to establish Tribal Wildlife Corridors, and for other purposes.

House Committee Chairs Release Framework Intended To Make Transfomative Infrastructure Investments: On January 29, 2020, Representatives Peter DeFazio (D-OR), Chair of the Transportation and Infrastructure Committee, Frank Pallone (D-NJ), Chair of the Energy and Commerce Committee, and Richard Neal (D-MA), Chair of the Ways and Means Committee, released the framework for a “five-year, $760 billion investment in infrastructure that would address some of the country’s most urgent infrastructure needs, from addressing the massive maintenance backlog, to designing safer streets, to putting the U.S. on a path toward zero emissions from the transportation sector and increasing resiliency.” According to the fact sheet, the framework includes funding for:

  • Clean Water & Wastewater Infrastructure ($50.5 billion):

    • Funds building new, modern clean water and wastewater infrastructure by investing $40 billion in the Clean Water State Revolving Fund (CWSRF), to address local water quality challenges, with dedicated funds for urban and rural communities with affordability concerns;

    • Encourages the use of energy-efficient and water-efficient technologies;

    • Helps communities affordably address local sewer overflow and stormwater infrastructure needs, preventing pollution in local rivers and waterways, and disruptions to service; and

    • Establishes a new EPA program to detect, prevent, and treat discharge of industrial chemicals, including PFAS.

  • Brownfield Restoration ($2.7 billion):

    • Helps communities fix up abandoned and contaminated properties for new use, particularly important for the revitalization of economically distressed communities.

  • Drinking Water ($25.4 billion):

    • Protects Americans’ drinking water -- particularly for vulnerable communities -- by investing in the Drinking Water State Revolving Fund and programs to ensure clean drinking water in schools, day care centers, and on Native American Reservations; and

    • Provides funding to local communities dealing with PFAS contamination in the drinking water and requires EPA identify and assist these and other communities with effective decontamination techniques.

House Subcommittee Holds Hearing On EPA’s Proposed Lead And Copper Rule: On February 11, 2020, the House Energy and Commerce Subcommittee on Environment and Climate Change held a hearing on “EPA’s Lead and Copper Proposal: Failing to Protect Public Health.” The hearing examined EPA’s ongoing efforts to revise the drinking water standard for lead and copper, including the proposed rule published on November 13, 2019.

House Republicans Release Carbon Capture Legislation: On February 12, 2020, House Minority Leader Kevin McCarthy (R-CA) and several House Republicans introduced part one of a three-part plan intended to create a cleaner, safer, and healthier environment. The legislation includes:

  • A bill to extend permanently the carbon sequestration tax credit known as 45Q, sponsored by Representatives David Schweikert (R-AZ) and Brad Wenstrup (R-OH): The legislation would expand the 45Q carbon sequestration tax credits and make them permanent in the federal tax code. This is intended to enhance the value of the credit for critical direct air capture projects and expand its availability to more energy innovators, to incentivize private sector projects to remove more carbon from the atmosphere;

  • The Carbon Capture, Utilization, and Storage (CCUS) Innovation Act, sponsored by Representative David McKinley (R-WV): The bill would promote the development and deployment of CCUS technologies, including by making related pipelines and direct air capture projects eligible for guaranteed loan support from the U.S. Department of Energy (DOE). The legislation also seeks to ensure quicker permitting of carbon pipeline infrastructure and would establish a ten-year program within EPA to award funds for direct air capture research;

  • The New Energy Frontiers Through Carbon Innovation Act of 2020, sponsored by Representative Dan Crenshaw (R-TX): The legislation would support the use of the technology at natural gas-fired power plants. It would establish a DOE-run “Carbon Innovation Hub.” The bill would direct $50 million of existing DOE funds toward research, development, and deployment of carbon capture technology at gas plants, with another $25 million per year of existing DOE funds to be set aside for the innovation hub to examine solutions for carbon utilization; and

  • The Trillion Trees Act, sponsored by Representative Bruce Westerman (R-AR): The legislation would plant one trillion trees globally by 2050 and incentivize the use of wood products as carbon sequestration devices.

MISCELLANEOUS

OMB Requests Information To Improve And/Or Reform Regulatory Enforcement And Adjudication: On January 30, 2020, the Office of Management and Budget (OMB) published a request for information in furtherance of the policy on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication. 85 Fed. Reg. 5483. OMB invites the public to identify additional reforms that will ensure adequate due process in regulatory enforcement and adjudication. Among the topics of interest, OMB invites feedback on the following queries:

  • Prior to the initiation of an adjudication, what would ensure a speedy and/or fair investigation?

  • When do multiple agencies investigate the same (or related) conduct, requiring that liability be contested in different proceedings across multiple agencies?

  • Would applying the principle of res judicata in the regulatory context reduce duplicative proceedings?

  • In the regulatory/civil context, when must an absence of legal liability be proved?

  • What evidentiary rules apply in regulatory proceedings to guard against hearsay and/or weigh reliability and relevance?

  • Should agencies be required to produce all evidence favorable to the respondent?

  • Do adjudicators sometimes lack independence from the enforcement arm of the agency?

  • Do agencies provide enough transparency regarding penalties and fines?

  • When do regulatory investigations and/or adjudications coerce resolutions/settlements?

  • Are agencies and agency staff accountable to the public in the context of enforcement and adjudications?

  • Are there certain types of proceedings that, due to exigency or other causes, warrant fewer procedural protections than others?

Comments are due March 16, 2020.

CSB Approves Final Rule On Accidental Release Reporting: On February 5, 2020, the U.S. Chemical Safety Board and Hazard Investigation Board (CSB) announced that it approved a final rule on accidental release reporting. The final rule describes when an owner or operator is required to file a report of an accidental release, and the required content of such a report. CSB states that the purpose of the rule is to ensure that CSB “receives rapid, accurate reports of any accidental release that meets established statutory criteria.” CSB notes that the accidental release reports will require only information that is already known or should be available to an owner/operator soon after an accidental release. To provide the owner/operator more time to gather the necessary information, the final rule has increased the reporting window from four to eight hours. CSB states that the required information is also limited in scope to critical information required for it to make informed decisions about its jurisdiction, interagency coordination, and deployment decision-making. CSB has posted a pre-publication version of the final rule, which should be published soon in the Federal Register. The rule will be effective 30 days after being published in the Federal Register.

EPA Releases 2019 Year In Review: On February 6, 2020, EPA announced that it released the 2019 Year In Review, “outlining major accomplishments and environmental progress” during the Trump Administration. FY 2019 EPA accomplishments include:

  • Issuing 16 final deregulatory actions, saving more than $1.5 billion in regulatory costs;

  • Inviting 38 new projects in 18 states to apply for Water Infrastructure Finance and Innovation Act (WIFIA) loans totaling $6 billion dollars to help finance over $12 billion dollars in water infrastructure investments and create up to 200,000 jobs;

  • Promulgating the final Affordable Clean Energy (ACE) rule, which is projected to result in annual net benefits of $120 to $730 million along with a reduction in carbon dioxide emission from the electric sector by as much as 35 percent below 2005 levels in 2030;

  • Providing $64.6 million to 151 communities with Brownfields grants to assess, clean up, and redevelop underused properties. According to EPA, 108 of those communities had identified sites or targeted areas within Opportunity Zones;

  • FY 2019 enforcement and compliance assurance actions resulted in the investment of over $4.4 billion in actions and equipment that achieve compliance with the law and control pollution, an increase of over $400 million from FY 2018;

  • Signing a directive to prioritize agency efforts to reduce animal testing, including reducing mammal study requests and funding by 30 percent by 2025 and eliminating them by 2035;

  • Advancing EPA’s PFAS Action Plan, the first multi-media, multi-program, national research, management, and risk communication plan to address an emerging contamination of concern like PFAS. In 2019, EPA sent the proposed regulatory determination under the Safe Drinking Water Act for PFOA and PFOS in drinking water to OMB for interagency review, validated a new test method to identify additional PFAS compounds in drinking water, issued Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS under federal cleanup programs, and announced the availability of nearly $5 million for new research on PFAS in agriculture;

  • Awarding 36 environmental education regional grants in 25 states totaling more than $3 million; and

  • Launching Smart Sectors program in all ten regional offices covering a variety of sectors, including agriculture, forestry, mining, oil and gas, cement, and concrete.

NYSDEC Will Hold Public Meeting To Discuss Amendments To The Household Cleansing Product Regulations: The New York State Department of Environmental Conservation (NYSDEC) will hold a public meeting on February 24, 2020, at 1:00 p.m. (EST) in Albany, New York, “to discuss amendments to the household cleansing product rules that are being considered for adoption.” According to NYSDEC, amendments include specifying what information must be reported about covered products and their ingredients, how information should be shared with NYSDEC for the public record, the type of studies that must be reported, and how confidential business information (CBI) should be handled. NYSDEC states that during the meeting, it “is looking for input on disclosure of nonfunctional ingredients, issues around confidential information, and how to disclose when a product’s formulation temporarily changes, as well as other regulatory concerns.” Registration is required to attend the meeting. NYSDEC notes that it “will hold a formal public comment period at a later date once it officially proposes the regulations.” More information is available in our January 30, 2020, blog item.

©2020 Bergeson & Campbell, P.C.

TRENDING LEGAL ANALYSIS


About this Author

Lynn Bergeson, Campbell PC, Toxic Substances Control Act Attorney, federal insecticide lawyer, industrial biotechnology legal counsel, Food Drug Administration law
Managing Partner

Lynn L. Bergeson has earned an international reputation for her deep and expansive understanding of the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), and especially how these regulatory programs pertain to nanotechnology, industrial biotechnology, synthetic biology, and other emerging transformative technologies. Her knowledge of and involvement in the policy process allows her to develop client-focused strategies whether...

202-557-3801
Carla Hutton, Bergeson Campbell PC, global regulatory attorney, public health activists lawyer, metals industry legal counsel, Toxic Substances Control Act law
Regulatory Analyst

Since 1996, Carla Hutton has monitored, researched, and written about regulatory and legislative issues that may potentially affect Bergeson & Campbell, P.C. (B&C®) clients. She is responsible for creating a number of monthly and quarterly regulatory updates for B&C's clients, as well as other documents, such as chemical-specific global assessments of regulatory developments and trends. She authors memoranda for B&C clients on regulatory and legislative developments, providing information that is focused, timely and applicable to client initiatives. These tasks have proven invaluable to many clients, keeping them aware and abreast of developing issues so that they can respond in kind and prepare for the future of their business.

Ms. Hutton brings a wealth of experience and judgment to her work in federal, state, and international chemical regulatory and legislative issues, including green chemistry, nanotechnology, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Toxic Substances Control Act (TSCA), Proposition 65, and the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) program.

202-557-3809