Memoranda

The Democratic Minority has circulated a redline version of the April 22, 2014, discussion draft of the Chemicals in Commerce Act (CICA2). A copy of the redline version of CICA2 is available online. The redline version is an interesting mix of substantial rewrites, deletions, and additions. The redline version, which we will refer to as CICA2-D to distinguish it from CICA2 and the original discussion draft, CICA1, proposes changes that favorably respond to numerous non-governmental...

The U.S. Environmental Protection Agency (EPA) Office of Pollution Prevention and Toxics (OPPT) recently noted that it successfully completed the Agency’s reorganization process and that the effective date will be sometime after June 9, 2014. The reorganization, which Bergeson & Campbell, P.C. (B&C®) had discussed in its “Predictions” memo, available online, represents a significant shuffle in responsibilities and also reduces the number of OPPT Divisions by...

The House Science, Space, and Technology Subcommittee on Research and Technology held a hearing on May 20, 2014, on “Nanotechnology: From Laboratories to Commercial Products.” The purpose of the hearing was to examine the current state of nanotechnology research and development (R&D), as well as future opportunities and challenges. In addition, the hearing discussed policy issues surrounding nanotechnology applications and activities, federal funding levels for nanotechnology...

The U.S. Environmental Protection Agency (EPA) published in the May 19, 2014, Federal Register an advance notice of proposed rulemaking (ANPR) to seek comment on the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures and the mechanism for obtaining this information. According to EPA, this mechanism could be regulatory (under Sections 8(a) and/or 8(d) of the Toxic Substances Control Act (TSCA)), voluntary, or a combination of both....

On April 29, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing to review a revised draft of the Chemicals in Commerce Act (CICA2). Representative John Shimkus (R-IL), Chair of the Subcommittee, released CICA2 on April 22, 2014. According to Shimkus, since he first released the discussion draft in March 2014 (CICA1), he has been working on a bipartisan basis to find common ground to reform the Toxic Substances...

On April 22, 2014, Representative John Shimkus (R-IL), Chair of the House Energy and Commerce Subcommittee on Environment and the Economy, announced that the Subcommittee will hold a hearing on April 29, 2014, to review a revised draft of the Chemicals in Commerce Act (CICA2). According to Shimkus, the revised draft “reflects suggestions from members on both sides of the aisle, as well as stakeholders and the administration.” CICA would reform the Toxic Substances Control Act...

The U.S. Environmental Protection Agency (EPA) published a notice on April 4, 2014, announcing that it issued a testing consent order that incorporates an enforceable consent agreement (ECA) for octamethylcyclotetrasiloxane (D4), a chemical intermediate and component of personal care products. 79 Fed. Reg. 18822. There are two big take away messages here. First, that EPA issued a testing order at all under Toxic Substances Control Act (TSCA) Section 4 is big news as none has...

On March 7, 2014, the Office of Environmental Health Hazard Assessment (OEHHA) released a pre-regulatory proposal for a potential draft regulation amending Proposition 65 regulations. Significantly — and likely controversially — the proposal seeks changes to the warning requirements to require more detailed information, including the names of the chemicals covered by individual warnings, the ways that individuals are exposed to these chemicals, and how individuals can avoid or reduce...

The California Department of Toxic Substances Control (DTSC) announced on March 13, 2014, the first draft Priority Products (PP) under the Safer Consumer Products Regulations (SCPR). The three draft PPs are: DTSC states that the designation as a draft PP “imposes no new regulatory requirements on manufacturers until DTSC finalizes it by adopting regulations.” Under the SCPR, DTSC will begin a rulemaking process for each PP, and DTSC anticipates it could take a year to...

On March 12, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing focused on the discussion draft of the Chemicals in Commerce Act (CICA). On February 27, 2014, Representative John Shimkus (R-IL), Chair of the Subcommittee, released a much anticipated discussion draft that would update the Toxic Substances Control Act (TSCA). The March 12 hearing was intended to provide the Subcommittee an opportunity to review the provisions of CICA....

On February 27, 2014, Representative John Shimkus (R-IL), Chair of the House Energy and Commerce Subcommittee on Environment and the Economy, released a much anticipated discussion draft that would update the Toxic Substances Control Act (TSCA). According to Shimkus’ press release, the Chemicals in Commerce Act (CICA) “keys off” S. 1009, the Chemical Safety Improvement Act (CSIA), which was introduced on May 22, 2013, by the late Senator Frank R. Lautenberg (D-NJ) and Senator...

The U.S. Environmental Protection Agency (EPA) promulgated on February 5, 2014, a final rule revising and updating the regulations governing the procedures for the satisfaction of data requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Given the importance of data compensation rights, and the fact EPA has not weighed-in on this matter for over three decades, the rule is an important must read for pesticide stakeholders. The final rule addresses procedures for the...

On February 4, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing entitled “Testing of Chemicals and Reporting and Retention of Information under TSCA Sections 4 and 8.” This was the fifth hearing on the Toxic Substances Control Act (TSCA) convened by the Subcommittee. The Subcommittee held oversight hearings on June 13, 2013, July 11, 2013, September 18, 2013, and November 13, 2013, that reviewed several core sections of...

In direct response to the tragic and in many respects avoidable events that occurred in West Virginia earlier this month, on January 27, 2014, Senators Joe Manchin (D-WV), Barbara Boxer (D-CA), Chair of the Environment and Public Works Committee, and Jay Rockefeller (D-WV) introduced the Chemical Safety and Drinking Water Protection Act of 2014. The bill would amend the Safe Drinking Water Act (SDWA) by adding Part G — Protection of Surface Water from Contamination...

The U.S. Environmental Protection Agency (EPA) has revised the Notice of Arrival (NOA) form (EPA Form 3540-1), the use of which is required for import of pesticides and pest control devices into the United States. Importers should begin using the new form immediately. The revised form and related instructions are available online. EPA has added optional information blocks, recommendations, and certain clarifications to the instructions. Some of these changes may be beneficial and respond to...

On December 30, 2013, Health Canada’s Pest Management Regulatory Agency (PMRA) released a consultation document entitled Proposed Approach to Special Reviews – Consultation Document. The Consultation Document outlines the Pest Control Products Act legislative requirements for special reviews and PMRA’s proposed approach to conduct such special reviews. The document is available online. PMRA is accepting comments until January 29, 2014. PMRA states that any comments...

On November 12, 2013, the United States Environmental Protection Agency (EPA) released an Administrative Law Judge (ALJ) decision ordering Respondent Elementis Chromium Inc., f/k/a Elementis Chromium, LP (Elementis or Company), to pay a $2,571,800 civil penalty for violating Section 8(e) and Section 15(3)(B) of the Toxic Substances Control Act (TSCA). The decision is available online. Although the case is highly fact-specific, the decision, if upheld under any potential appeal, may be used...

Bergeson & Campbell, P.C. (B&C®) outlines below thoughts on what may be headed our way in 2014 from the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP). We also offer a few thoughts on European and Asian developments pertinent to chemical regulatory matters. Although President Obama is well into his second term, the 2014 off-year elections, combined with the bitter partisan atmosphere in Washington, D.C., will result in a...

On November 20, 2013, the United States Environmental Protection Agency (EPA) announced its intent to release for comment proposed Draft Guidelines for Product Environmental Performance Standards and Ecolabels for Voluntary Use in Federal Procurement (Draft Guidelines). EPA states the Draft Guidelines — developed by EPA, the General Services Administration (GSA), and other federal agencies following several “listening sessions” with a wide range of stakeholders — are...

On November 13, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing on the Chemical Safety Improvement Act (S. 1009) (CSIA), which was introduced in May 2013 by the late Senator Frank R. Lautenberg (D-NJ) and Senator David Vitter (R-LA). Earlier this year, the House Subcommittee held hearings to provide an overview of Title I of the Toxic Substances Control Act (TSCA); examine TSCA Sections 5 and 14, which...

On November 7, 2013, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision granting in part and denying in part the Natural Resources Defense Council’s (NRDC) petition for review of the U.S. Environmental Protection Agency’s (EPA) conditional registration of HeiQ AGS-20 and AGS-20 U (collectively, AGS-20) pesticide products that EPA has determined contain nanoscale silver (nanosilver). The court vacated EPA’s decision “insofar as it concluded that...

There are 26 days remaining until the December 1 deadline by which employers must have trained their workers on the new label elements and the Safety Data Sheet (SDS) format as required under the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). While there is still time to meet the requirements, companies must act quickly. Bergeson & Campbell, P.C. (B&C®) and The Acta Group (Acta) can assist employers storing, using, or handling...

On October 29, 2013, the Federal Trade Commission (FTC) announced six enforcement actions concerning misleading and unsubstantiated environmental marketing claims. In a case imposing a $450,000 civil penalty, FTC filed a complaint and consent order against a company for violating a 1994 FTC order prohibiting it from making unsupported green claims for its paper plates and bags. In the five other actions, FTC addressed biodegradable plastic claims for the first time. In one case, FTC...

The U.S. Environmental Protection Agency (EPA) signed on September 30, 2013, a final rule amending a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances. The amendment adds PFAS chemical substances that have completed the Toxic Substances Control Act (TSCA) new chemical review process, but have not yet commenced production or import, and designates (for all listed PFAS chemical substances) “processing” as a significant new use. The final rule also...

The California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations) take effect today. Memoranda providing background information on the Regulations are available online. The Regulations and Final Statement of Reasons are available online. The most onerous requirements for “responsible entities” (i.e., manufacturers, importers, assemblers, and retailers) will not be felt until DTSC identifies the first Priority...

The European Union (EU) Biocidal Products Regulation (BPR) has entered into EU law. This legislation changes the way in which biocidal active substances and biocidal products are regulated in the EU. The new EU regulatory system differs from other global regulatory systems for biocidal substances and redefines what are considered biocidal products and treated articles. Companies competing in this space must be aware of and careful to ensure that existing supply chains and biocidal product...

On September 18, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy convened a hearing on the “Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act.” This was the Subcommittee’s third hearing on Toxic Substances Control Act (TSCA) issues, and was intended to focus “on the existing statutory provisions, regulatory implementation, and ‘real world’ implications of...

On August 28, 2013, California’s Office of Administrative Law (OAL) approved the California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations). The Regulations will take effect on October 1, 2013. The Regulations are the much anticipated regulatory implementation of California’s Green Chemistry Initiative. DTSC’s implementing regulations have gone through several iterations, including an initial draft released on...

On August 6, 2013, the U.S. Environmental Protection Agency (EPA) signed its belated final rule establishing the 2013 renewable volume obligations (RVO) for the four fuel categories that are part of the federal Renewable Fuel Standard (RFS) Program under the Clean Air Act (CAA): cellulosic biofuel; biomass-based diesel; advanced biofuel; and total renewable fuel. These standards apply to all gasoline and diesel produced or imported in 2013. The final rule will become effective once it...

On July 31, 2013, the Senate Committee on Environment and Public Works held a hearing on “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” To date, two bills have been introduced in the Senate that would reform the Toxic Substances Control Act (TSCA) — the Safe Chemicals Act of 2013 (S. 696) (SCA) and the Chemical Safety Improvement Act (S. 1009) (CSIA). The late Senator Frank R. Lautenberg (D-NJ) reintroduced the SCA on April...

On July 11, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing on “Regulation of New Chemicals, Protection of Confidential Business Information, and Innovation.” The Subcommittee held a June 13, 2013, oversight hearing on Title I of the Toxic Substances Control Act (TSCA). The July 11, 2013, hearing was intended to provide the Subcommittee an opportunity to examine the regulatory implementation and “real world” implications of...

On June 14, 2013, the U.S. Environmental Protection Agency (EPA) published a proposed rule to amend the Renewable Fuel Standard. The proposal would allow use of biogas from landfills to meet the obligations imposed on refiners and importers to utilize renewable feedstocks in transportation fuels, and clarify which renewable biofuels can be categorized as cellulosic biofuels. The Renewable Fuel Standard (known as RFS2) was first promulgated in 2010. RFS2 implements requirements for the use of...

On June 19, 2013, the U.S. Environmental Protection Agency (EPA) announced the availability of a fact sheet intended to provide guidance on reporting chemical substances that are or contain different isotopes of the same elements that are already on the Toxic Substances Control Act (TSCA) Inventory. Elemental isotopes have the same number of protons and therefore are the “same” element, but differ in molecular weight and possibly other properties because of a differing number of...

EPA Publishes Final EDSP Policies And Procedures And Final Second List Of Chemicals And Substances For Tier 1 Screening: On June 14, 2013, EPA published a Federal Register notice describing its final policies and procedures for requiring Tier 1 screening under the Endocrine Disruptor Screening Program (EDSP) of chemicals for which EPA may issue EDSP test orders pursuant to Section 1457 of the Safe Drinking Water Act (SDWA) and Section 408(p) of the Federal Food, Drug, and Cosmetic...

Regulation (EC) No. 1223/2009 of the European Parliament and of the Council of November 30, 2009, on Cosmetic Products will come into force on July 11, 2013, and repeals the Cosmetics Directive Regulation (Directive 76/768/EEC) provisions concerning carcinogenic, mutagenic, or toxic for reproduction (CMR) substances that have applied since December 1, 2010. The European Commission (EC) states that the Cosmetics Directive “until now ensured that products circulate freely...

The U.S. House of Representatives Committee on Energy and Commerce, Subcommittee on Environment and the Economy, held a June 13, 2013, hearing on “Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact.” The oversight hearing was intended to improve the Subcommittee’s understanding of the Toxic Substances Control Act (TSCA) and its implementation. The background memorandum for the hearing notes that Title I authorizes the U.S....

In a stunning bipartisan show of support for reform of the Toxic Substances Control Act (TSCA) that few saw coming, Senators David Vitter (R-LA) and Frank Lautenberg (D-NJ) (among bipartisan others) introduced on May 22, 2013, the Chemical Safety Improvement Act (CSIA), later designated S. 1009, available online. CSIA provides a new and streamlined approach to reform TSCA that stakeholders may view favorably when compared to prior legislative templates that have been considered...

Senator David Vitter (R-LA) announced today that he and Senator Frank Lautenberg (D-NJ) are the lead co-sponsors on a bill to reauthorize and amend the Toxic Substances Control Act (TSCA). The bill, entitled the Chemical Safety Improvement Act (CSIA), is co-sponsored by the following Senators: Kirsten Gillibrand (D-NY) Mike Crapo (R-ID) Dick Durbin (D-IL) Lamar Alexander (R-TN) Charles Schumer (D-NY) James Inhofe (R-OK) Tom Udall (D-NM) Susan Collins (R-ME) Joe Manchin (D-WV) Marco...

On April 24, 2013, the South Korea National Assembly Environmental and Labor Committee passed the Act on Registration and Evaluation, Authorization and Restriction of Chemical Substances, commonly known as Korea REACH or K-REACH. On April 30, 2013, the National Assembly enacted K-REACH, and it is now scheduled to come into force on January 1, 2015. Information on K-REACH is not yet available on the Ministry of Environment’s website. A translation of the Act is available online....

On May 8, 2013, the U.S. Environmental Protection Agency (EPA) issued a long-awaited final rule revising the data requirements for antimicrobial pesticide products. EPA states the revisions “reflect current scientific and regulatory practice, and [] provide the regulated community with clearer and transparent information about the data needed to support pesticide registration decisions for antimicrobial products.” The final rule revises and updates the data requirements for...

The European Union (EU) voted April 29, 2013, on a proposal to restrict the use of three neonicotinoid substances for agricultural uses. The substances are clothianidin, imidacloprid, and thiamethoxam. The proposal failed to gain sufficient support from the 27 EU Member States Appeal Committee and was passed to the European Commission (EC), which has confirmed that the proposal will be adopted in the coming weeks. Restriction upon the agricultural use of the three neonicotinoid substances...

On April 22-23, 2013, the Association of American Pesticide Control Officials (AAPCO)/State Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Issues Research and Evaluation Group (SFIREG) Pesticide Operations Management (POM) Working Committee (WC) held its semi-annual full committee meeting in U.S. Environmental Protection Agency (EPA) offices in Crystal City, Virginia. Through a cooperative agreement in 1978, EPA and AAPCO created SFIREG, an AAPCO committee with EPA funding, to...

In a widely anticipated and potentially influential report released on April 30, 2013, a committee of the National Research Council of the National Academy of Sciences (NAS) made detailed recommendations concerning potential revisions to the process by which the U.S. Environmental Protection Agency (EPA) and the Fish and Wildlife Service or the National Marine Fisheries Service (the Services) assess risk during consultation under Section 7(a)(2) of the Endangered Species Act (ESA) for specific...

On April 29, 2013, the U.S. Government Accountability Office (GAO) released a report entitled Toxic Substances: EPA Has Increased Efforts to Assess and Control Chemicals but Could Strengthen Its Approach, which provides the results of a performance audit conducted by GAO from December 2011 to March 2013. GAO reviewed the extent to which: (1) the U.S. Environmental Protection Agency (EPA) has made progress implementing its new approach for managing toxic chemicals with the goal of ensuring...

As reported in our April 11, 2013, memorandum, on April 10, 2013, Senator Frank R. Lautenberg (D-NJ) reintroduced the Safe Chemicals Act of 2013 (S. 696) (SCA 2013), which would reform the Toxic Substances Control Act (TSCA). Senator Lautenberg’s press release noted that the bill is identical to the Safe Chemicals Act of 2011 (S. 847) (SCA 2011), which was reported favorably out of the Senate Environment and Public Works (EPW) Committee on a party-line...

The European Commission (EC) published Regulation 348/2013 on April 17, 2013, that adds eight substances to Annex XIV of EU Regulation 1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), commonly referred to as the Authorization List. The notice can be found online. The substances are: Chemical Name CAS Number EC Number Last Application Date Sunset Date Trichloroethylene 79-01-6 201-167-4 October 21, 2014 April 21, 2016 Chromium trioxide 1333-82-0...

In a decision with enormous implications for pesticide registrants, on April 22, 2013, the U.S. District Court for the Northern District of California dismissed a complaint in Center for Biological Diversity, et al. v. EPA, a case often referred to as the “Mega-ESA” case. In this suit, the plaintiffs asserted that the U.S. Environmental Protection Agency (EPA) improperly failed to initiate or to reinitiate consultation under Endangered Species Act (ESA) Section 7(a)(2) for 382...

On April 18, 2013, the U.S. Environmental Protection Agency (EPA) proposed significant new use rules (SNUR) under the Toxic Substances Control Act (TSCA) for eight chemical substances that were the subject of premanufacture notices (PMN) P-11-327, P-11-328, P-11-329, P-11-330, P-11-331, P-11-332, P-12-298, and P-12-299, the first six of which are renewable, biobased chemical substances manufactured by KiOR, Inc. This memorandum explains why the proposed SNURs for the biobased chemical...

On April 17, 2013, the United Kingdom’s (UK) Department for Business, Innovation and Skills launched a public consultation on the implementation of the recast Waste Electrical and Electronic Equipment (WEEE) Directive. The consultation focuses on how the government should amend the existing WEEE regulations to ensure compliance with the recast WEEE Directive published on July 24, 2012, and on how to respond to concerns from UK producers of electrical and electronic equipment under the...

In its April 30, 2012, publication, FY 2013 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM) Guidance, OECA discusses its enforcement objectives and program priorities for fiscal year (FY) 2013. In discussing notable changes for FY 2013 from FY 2012, OECA lists budget challenges and states that it must cut resources in certain areas: “Anticipating tight budgets in FY 2013 and beyond, EPA’s enforcement program needs to focus its limited...