Articles

Given the passage of time since the Toxic Substances Control Act (TSCA) was enacted in 1976, the public’s growing awareness of the potential for exposure from chemicals in “articles,” or finished goods, during use, and greater focus on the implications of end-of-life product disposal, the U.S. Environmental Protection Agency’s (EPA) regulation of articles under TSCA has shifted significantly. Historically, EPA elected not to regulate articles for the most part. EPA’s more recent...

Cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are about to get a lot more expensive. The U.S. Environmental Protection Agency (EPA) announced on September 6, 2022, that it will propose to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most widely used per- and polyfluoroalkyl substances (PFAS), as hazardous substances under CERCLA. The rulemaking would also require entities immediately to report...

The scope of what diligence is due in any corporate transaction has evolved greatly over the past decade, particularly with respect to transactions involving chemical products. Once upon a time, transactional due diligence involving chemical products, whether ‘neat’ (pure) chemicals, formulations or end-use products, typically consisted of a phase I or phase II environmental site assessment (ESA) focusing on identifying contamination derivative of chemical releases into environmental media...

The U.S. Environmental Protection Agency held a webinar on August 17, on the “EPA PFAS Strategic Roadmap: Research Tools and Resources.” The webinar provided a brief overview of EPA’s PFAS Strategic Roadmap and ongoing efforts by EPA’s Office of Research and Development (ORD) to address key per- and polyfluoroalkyl substances (PFAS) research needs for environmental decision-making. ...

The Toxic Substances Control Act (TSCA) offers tremendous unrealized potential to promote the development of more sustainable industrial chemicals. Despite the fact that Congress significantly amended TSCA in 2016 specifically to diminish the human health and environmental footprint of industrial chemicals, the U.S. Environmental Protection Agency (EPA) is interpreting the revised law in ways that ironically discourage the commercialization of new chemicals and reinforce a “new chemical...

The U.S. Environmental Protection Agency (EPA) has issued two new documents for recipients of Section 4 test orders under the Toxic Substances Control Act (TSCA). The good news is these documents offer relief to stakeholders who otherwise would be responsible for chemical testing costs for certain chemicals they produced or imported....

The U.S. Environmental Protection Agency (EPA) invited on July 6, 2022, small businesses to participate as Small Entity Representatives (SER) for a Small Business Advocacy Review (SBAR) panel. The EPA seeks self-nominations directly from entities that may be subject to the rule requirements; self-nominations were due July 20, 2022. The panel focuses on the agency’s proposed rule to collect data to inform each step of the Toxic Substances Control Act (TSCA) risk evaluation and risk...

Since the US Supreme Court issued its blockbuster ruling in West Virginia v EPA, 597 US _ 2022 WL 2347278 (30 June 2022), many are asking whether the Court’s amplification of the ‘major questions doctrine’ (MQD) might be used to seek to limit the US EPA’s authority in implementing Congress’s 2016 amendments to TSCA, the Frank R Lautenberg Chemical Safety for the 21st Century Act (Lautenberg). Lynn L Bergeson, managing partner of the law firm Bergeson...

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA), reinstating the Superfund excise tax on certain chemical substances under Sections 4661 and 4671 of the Internal Revenue Code (Tax Code). Effective July 1, 2022, the tax many were glad to see expire is back; the first deposit of the tax is due on July 29, 2022. This article discusses the tax and the challenges it poses....

By any standard, federal enforcement of environmental laws in the US has been uneven, to say the least. The prevailing perception is that democrats are ‘greener’ than are republicans when it comes to environmental enforcement. The data is quite scattered, however, and it would seem no party has cornered the environmental protection market. The Trump administration may be the exception that proves the rule. Most would agree civil and criminal enforcement case numbers were significantly...

In February 2022, France and the United States announced their commitment to protect our shared environment for future generations against the harm resulting plastic pollution.Both nations stated their united recognition of the transboundary impacts of plastic pollution and the importance of mitigating plastic waste at its source. On March 2, 2022, as reported by the 5th UN Environment Assembly (UNAE-5.2) in Nairobi, both France and the United States, along with 173 other...

On May 6, 2022, the U.S. Environmental Protection Agency (EPA) proposed reporting and recordkeeping requirements for asbestos under Section 8(a) of the Toxic Substances Control Act (TSCA). Unsurprisingly, the proposed requirements are extensive and tough.  This article provides a summary....

On April 5, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice recommending additional revisions to its proposal to modify Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations for “short-form” warnings (Notice). OEHHA first proposed to change the short-form warning requirements on January 8, 2021. This column explains the significance of this development....

The Chemicals Strategy for Sustainability, adopted by the European Commission in October 2020, calls on the Commission to ensure that Regulation (EC) No 1272/2008 on the classification, labelling and packaging of substances and mixtures (CLP Regulation) is the central legislation for hazard classification and allows the Commission to initiate harmonised classifications. This article examines the effect of possible CLP amendments....

Per- and polyfluoroalkyl substances (PFAS) are getting a lot of attention in the United States and globally. Their varied chemical properties make the categorization of “PFAS” into a single category chemically and scientifically questionable. Increasingly, the ability to make distinctions among this large chemical category is challenging, yet failure to do so could be unwise. This article provides information on PFAS, and offers a few suggestions to keep in mind when making business...

The ubiquity of per- and polyfluoroalkyl substances (PFAS) and the manufacturing sector’s decades-long reliance on them to impart functionalities in a dizzying array of products put the investor between the proverbial rock and a hard place. PFAS varied chemical properties make the broad categorisation of ‘PFAS’ into a monolithic category of ‘forever chemicals’ chemically and scientifically questionable. For better or worse, however, that is exactly what is happening today, and...

The Biden Administration’s U.S. Environmental Protection Agency (EPA) is laser focused on achieving several “whole-of-government” priorities: addressing climate change, identifying and giving environmental justice greater consideration in decision-making, and following the science wherever it may lead. Knowing and respecting leadership in the Office of Chemical Safety and Pollution Prevention (OCSPP) tasked with achieving these laudable yet daunting objectives, there is no question the...

The Toxic Substances Control Act (TSCA) has long been considered the “poster child” of failure as a chemical control law when it comes to asbestos regulation. The U.S. Environmental Protection Agency (EPA) in its latest approach to regulating “legacy” uses may well invite heightened scrutiny. The EPA announced in December the availability of the Draft Scope of the Risk Evaluation for Asbestos, Part 2. In it, the agency will evaluate conditions of use of asbestos...

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (H.R. 3684). The House passed the bill on November 5, 2021, by a vote of 228 to 206, and the Senate passed the bill on August 10, 2021, by a vote of 69 to 30. The bill provides a $1.2-trillion infusion of cash into the economy and contains many provisions important to the chemical processing sector. Highlighted below are some...

The environmental impacts of the digital economy are increasingly the focus of attention and concern. There is no question the demand for electricity, water and land have increased sharply in response to the growth in digital activity. Identifying, quantifying and mitigating environmental and ecological impacts are core to value creation, and investors must be mindful of how a company is positioned to create value while avoiding public rebuke for neglecting to account for the environmental...