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December 1, 2012

Monthly Update for December 2012

Bergeson & Campbell, P.C.

Bergeson & Campbell, P.C. extends its best wishes to our clients and many friends and we wish you and your family a happy, healthy, and peaceful New Year.


EPA Issues Final TSCA Section 8(d) Rule On Cadmium And Cadmium Compounds: On December 3, 2012, the U.S. Environmental Protection Agency (EPA) issued a final rule adding cadmium and cadmium compounds to the Toxic Substances Control Act (TSCA) Section 8(d) model rule thus requiring manufacturers and importers of cadmium and cadmium compounds, including use as part of an article, that have been or are reasonably likely to be incorporated into consumer products, to report health and safety studies to EPA. 77 Fed. Reg. 71561. The final rule would have been effective January 2, 2013. A more detailed memorandum regarding the final rule is available online.

Since the December 3 rule was issued, however, EPA received several letters asking questions and raising concerns about the scope and extent of the final rule that indicate that there is significant confusion and uncertainty within certain industrial sectors concerning the rule. EPA believes that some of the points raised in the letters warrant additional consideration by the Agency. As a result, on December 14, 2012, EPA decided to withdraw the final rule and, pursuant to 40 C.F.R. § 716.105(c), will sign a Federal Register notice announcing this decision no later than the January 2, 2013, effective date of the final rule.

EPA will be considering the questions and concerns raised in response to the final rule and next steps with regard to this rule. EPA will also continue to work with the Consumer Product Safety Commission (CPSC) to reduce exposure to cadmium in consumer products generally, and especially those consumer products used by or around children, such as children’s metal jewelry.

EPA is to be commended for its swift and decisive action.

EPA Releases Reinterpretation On Disposal Of PCB-Contaminated Building Materials: On November 16, 2012, EPA posted on its website its revised reinterpretation of guidance on the disposal of building materials contaminated by polychlorinated biphenyls (PCB) to allow for quicker and “more straightforward” disposal of such waste. The document, PCB Bulk Product Waste Reinterpretation, is dated October 24, 2012. According to the reinterpretation, building materials “coated or serviced” with materials containing PCBs, such as caulk, paint, sealants, and mastic, will be classified as “bulk product waste” that can be removed and disposed of more quickly. The reinterpretation allows for the possibility that some PCB-contaminated materials could separate from building materials during the disposal process. EPA’s summary of the final guidance on PCB contaminated building materials is available online. The revised guidance documents are available online.

EPA Creates New Toxics Release Inventory (TRI) Website: On November 19, 2012, EPA launched a new website to provide information on how industrial facilities nationwide are preventing releases from chemicals. The site, available at online, shows how industry is making progress in reducing releases reported under Section 313 of the Emergency Planning and Community Right-to-Know Act (ECPCRA).

EPA Solicits Comments On Information Collection Activities Relating To Pesticide Drift-Reduction Technologies: EPA announced on November 21, 2012, that it is interested in collecting information about technologies that can reduce pesticide spray drift. 77 Fed. Reg. 69823. EPA is seeking the voluntary submission of information about the effectiveness of application technologies for agricultural pesticide sprays, including spray nozzles, shrouds and shields, and drift-reducing adjuvant chemicals used for aerial or ground boom applications to row and field crops. The voluntary information collection program would encourage the identification and use of drift-reduction technologies that can substantially reduce drift of pesticide spray droplets from the target application site downwind to non-target areas. In compliance with the Paperwork Reduction Act, before submitting a request for a new Information Collection Request to the Office of Management and Budget (OMB) for review and approval, EPA seeks comment from potentially affected entities on specific aspects of the proposed information collection. Comments are due by January 22, 2013, on the supporting materials that are available under Docket ID# EPA-HQ-OPP-2012-0631 at

EPA Releases List Of EDSP Universe Of Chemicals: On November 27, 2012, EPA released a document entitled The EDSP Universe of Chemicals and General Validation Principles, as well as the list of approximately 10,000 chemicals. According to EPA, the document is a supplement to the June 2012 EDSP Comprehensive Management Plan, which EPA intends to provide strategic guidance and outline critical activities that are planned for the Endocrine Disruptor Screening Program (EDSP) for the remainder of fiscal year (FY) 2012 through FY 2017. The EDSP Universe of Chemicals and General Validation Principles addresses chemicals that may be considered by the EDSP for screening and testing within the five-year time horizon of the EDSP Comprehensive Management Plan. EPA states that, given the large number of chemicals that it regulates and that are potentially subject to EDSP screening, “it is important to strategically prioritize which chemicals should undergo screening so the chemicals with the greatest potential for interacting with the endocrine systems are evaluated in a timely manner to ensure public and wildlife protection.” To this end, according to EPA, the document describes general validation principles for the use of computational toxicology tools for efficient chemical prioritization. The document is available online. The list of chemicals is available online. A more detailed memorandum is available online.

EPA Convenes Pesticide Program Dialogue Committee: On November 29-30, 2012, EPA convened a public meeting of the Pesticide Program Dialogue Committee (PPDC). 77 Fed. Reg. 68771. Three PPDC workgroup meetings met on November 28, 2012, as follows: PPDC Work Group on Integrated Pest Management; PPDC Work Group on Comparative Safety Statements; and PPDC Work Group on Pollinator Protection. The PPDC Work Group on 21st Century Toxicology/Integrated Testing Strategies met on November 29, 2012. For a summary of the meeting, see online.

Advocacy Coalition Releases Guide To Safer Chemicals: A guide to help companies purchase safer chemicals has been released by a coalition of businesses and advocacy groups. BizNGO, a coalition and committee operating under the Clean Production Action, released its Guide to Safer Chemicals December 3, 2012. The guide is designed to help businesses working to replace chemicals of concern with safer alternatives. The document is intended to provide companies with strategies and resources that can assist implementing the principles for safer chemicals that BizNGO released in 2011. Specific tools listed in the report are sources of information both about chemical hazards and compounds that EPA and other governmental and private sector organizations have determined have favorable environmental or health properties. EPA’s Design for the Environment (DfE) Program and Massachusetts’ Toxics Use Reduction Institute are identified as sources of information that companies can use to compare environmental and health attributes of chemicals. BizNGO’s Guide to Safer Chemicals is available online.

EPA Schedules Stakeholder Meeting On Inorganic Arsenic: On December 6, 2012, EPA announced an inorganic arsenic public stakeholder workshop on January 8-9, 2013, designed to inform the planning for EPA’s toxicological review of chronic exposure to inorganic arsenic (cancer and noncancer effects). 77 Fed. Reg. 72858. Workshop participants will be asked to highlight significant new and emerging research, discuss methods for evaluating literature, identify critical research issues (including mode of action) that may impact the toxicological review, and discuss approaches for dose-response. The ultimate goals of the workshop are to ensure that while developing the toxicological review, EPA provides public stakeholders an opportunity to inform the toxicological review and transparently communicates how EPA will produce a toxicological review that meets the needs of Agency stakeholders and partners.

EPA Issues Interpretation Of TSCA Section 6(e) For Shredder Residue: On December 12, 2012, EPA proposed an interpretation of the PCBs regulations under TSCA that would generally allow for recycling of plastics from shredder residue. 77 Fed. Reg. 74006. EPA’s interpretation of its regulations currently under consideration would generally allow for the recycling of plastic separated from shredder residue under the conditions described in the Voluntary Procedures for Recycling Plastics from Shredder Residue, relying principally on the regulatory provisions for excluded PCB products. The interpretation described in the notice responds to questions EPA has received about the applicability of the excluded PCB products regulations. Comments are due by January 11, 2013.

EPA Publishes Draft Guidance For Products With Mold-Related Label Claims: The Office of Pesticide Programs (OPP) has published a draft Pesticide Registration (PR) Notice 2012-X, dated December 12, 2012, to provide guidance related to labeling and product performance for antimicrobial pesticide products that make mold-related label claims. 77 Fed. Reg. 74003. The draft guidance is available in docket EPA-HQ-OPP-2010-0539 at The draft PR Notice clarifies that EPA considers fungicide product claims as public health claims. Registrants must therefore submit efficacy data to EPA in support of these claims. Conversely, for aesthetic fungistat claims, registrants must have efficacy data supporting these claims in their files, but are not required to submit the data to EPA unless asked to do so. EPA also states that efficacy data must be submitted to EPA for label claims on any specific species of fungus, and EPA does not expect to approve specific fungal species claims on fungistat product labels. In the draft PR Notice, EPA also states that an acceptable prevention claim may be made for a fungicide if the registrant can demonstrate that the product inhibits mold growth on an uncontaminated surface for more than seven days, and an acceptable residual activity claim may be made for a fungicide if the registrant can demonstrate that the product is effective when applied and for a period of more than seven days; testing must be submitted to EPA to support either type of claim. The draft PR Notice also requires certain label language and suggests sample label language in other cases, depending on the product type and use. In the draft PR Notice, EPA states that products intended for mold remediation on hard, nonporous surfaces should include comprehensive remediation steps as part of the Use Directions. For products used on porous surfaces, EPA states that the Use Directions should direct the user to assess whether the mold-contaminated porous material is treatable, and to remove and dispose of it if it is not. EPA states that it will follow this guidance for new registration applications. For currently registered products, EPA states that, once the PR Notice is issued in final, registrants that have not submitted efficacy studies in support of claims consistent with the PR Notice should “contact the Agency” and if the registrant does not eventually intend to submit supporting data, the registrant should modify its label to modify/remove associated claims. For label claims for currently registered products, EPA proposes processes for amending label claims and specifically solicits comments on these processes. EPA proposes a notification process whereby registrants of fungistat products may revise their label language consistently with the PR Notice. EPA states that all other changes to label language must be done by an amendment application; as long as an amendment application only proposes changes related to the PR Notice, no Pesticide Registration Improvement Extension Act (PRIA 3) fee will apply. Comments are due on February 11, 2013.

NAS Holds Second Meeting To Review IRIS Process: The National Academy of Sciences’ (NAS) National Research Council (NRC) on December 13, 2012, held its second meeting of the Committee to Review the IRIS Process. During the meeting, officials from EPA’s Integrated Risk Information System (IRIS) program detailed the current and anticipated future improvements to the draft IRIS assessment development process. EPA is following a five step process originally laid out in the NRC’s critique of the formaldehyde IRIS assessment. The five steps and EPA’s approach to each as a way of improving the overall IRIS assessment process are:

  • Step 1 — Identify Evidence: EPA is developing protocols for systematic literature searches to ensure it captures all relevant studies on the health effects of a particular chemical. EPA will also document how it conducted the literature search, including databases used, search terms, and how it screened studies for inclusion in the assessment. All data used in the assessment will be available for public review in EPA’s HERO database.
  • Step 2 — Evidence Evaluation: EPA will develop and use standard protocols for evaluating the strengths and results of each study it considers after conducting the literature search. Draft assessments will contain standardized tables and graphs displaying the study findings, subjects, methods, and study design for easier consumption of the data by the public. EPA is also refining standard templates for delivering the data in the draft assessments.
  • Step 3 — Evidence Integration and Synthesis: EPA will develop and use a systemic weight-of-evidence procedure with standard language for evaluating which studies are most relevant and affect the draft assessment. It is also developing a systematic, robust, and transparent method of synthesizing and integrating data and indicating in the draft assessments what factors were the most influential.
  • Steps 4 and 5 — Select Studies and Calculate Reference Values: EPA will use standardized criteria for study selection and explain its process in the draft assessments to make it more transparent. EPA is working on tools and processes to improve the dose-response assessment process, including considering multiple factors in synthesizing across candidate toxicity values, performing and tracking multiple analyses, and meeting a broader array of risk management decision contexts.

EPA stated overall that it is dedicated to implanting all the improvements the NRC recommended in its review of the formaldehyde assessment. More information on the meeting is available online.


EPA Seeks Comment On Draft Lead Integrated Science Assessment: On November 27, 2012, EPA announced the availability of a document entitled Third External Review Draft Integrated Science Assessment for Lead (EPA/600/R-10/075C). 77 Fed. Reg. 70776. The document was prepared by the National Center for Environmental Assessment (NCEA) within EPA’s Office of Research and Development (ORD) as part of the review of the national ambient air quality standards (NAAQS) for lead. EPA released the draft document to seek review by the Clean Air Scientific Advisory Committee (CASAC) and the public. Comments are due by January 28, 2013.

EPA Lowers PM2.5 NAAQS: In response to a court order, today EPA issued a final rule lowering the NAAQS for fine particle matter (PM2.5). The new NAAQS lowers the standard from 15 to 12 micrograms per cubic meter. EPA expects that fewer than ten counties, out of the more than 3,000 counties in the United States, will need to consider any local actions to reduce fine particle pollution to meet the new standard by 2020, as required by the Clean Air Act (CAA). The rest can rely on air quality improvements from federal rules already on the books to meet this new standard.

The standard, which EPA proposed in June, is based on an extensive body of scientific evidence that includes thousands of studies — including many large studies that show negative health impacts at lower levels than previously understood, EPA stated.


EPA Revises CERCLA Enforcement Guidance: EPA released on December 6, 2012, revised guidance on how it intends to exercise its enforcement discretion for the bona fide prospective purchaser provision of the Superfund law for tenants who lease contaminated or formerly contaminated properties. The document addresses lessees who were not previously covered by EPA guidance because the owner of the property was not a bona fide prospective purchaser, or BFPP, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The transmittal letter accompanying the guidance, from EPA to the Directors of the Agency’s ten regions, was posted December 6 on EPA’s website. The revised guidance and three new model letters for lessees were developed, in part, in response to issues raised through EPA’s Re-Powering America’s Land Initiative: Siting Renewable Energy on Potentially Contaminated Land and Mine Sites. The revised guidance is available online. The model letters are available on EPA’s website.


EFSA Intends To Prepare Inventory Of Food Additives In The Area Of Nanotechnologies: The European Food Safety Authority (EFSA) published in the October 10, 2012, Official Journal of the European Union a call for tender to prepare a background document on the current knowledge in the field of nanotechnology and prepare an inventory of food additives/food contact materials/feed additives applications of nanotechnologies currently used and/or reasonably foreseen to be used. According to the tender specifications, the tasks will include:

  • Performing an extensive literature search to summarize the knowledge in the field of nanotechnology applied to food and feed;
  • Producing inventory lists for each type of application (e.g., food additives, enzymes, flavorings, food contact material, novel foods, feed additives, and pesticides), including at least one inventory list for food additives, one for food contact materials, and one for feed additives applications of nanotechnologies currently used and/or reasonably foreseen to be used;
  • Reviewing the existing non-European Union (EU) legislation on the authorization of food additives/food contact materials/feed additives application in the area of nanotechnology; and
  • Preparing a final report.

The length of the contract will be one year and is not renewable. Responses were due November 23, 2012. EFSA estimates that the contract will be completed in January 2014. More information is available online.

elni Review Article Examines Law And Innovation In Context Of Nanomaterials: Environmental Law Network International’s (ELNI) recent issue of elni Review includes an article entitled “Law and innovation in the context of nanomaterials: Barriers to sustainable development? Results of an empirical study,” which examines to what degree the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation promotes innovations for sustainability through nanomaterials. The authors surveyed 37 companies based in Germany that manufacture and/or use nanomaterials to determine how REACH affected their approach. Issues addressed included the relationships between substance risks and innovation and between REACH and innovation. The authors determined that REACH does not offer sufficient incentives to register nanomaterials and to apply nano-specific safety assessment procedures. In addition, according to the authors, the lack of specific provisions within REACH concerning nanomaterials results in uncertainties in the interpretation of legal concepts and obligations. The authors offer preliminary conclusions for a possible adaptation of the legal framework for nanomaterials. The article is available online.

Readers may be interested in joining the Sustainable Nanotechnology Organization (SNO). SNO is a non-profit, worldwide professional society comprised of individuals and institutions that are engaged in:

  • Research and development of sustainable nanotechnology;
  • Implications of nanotechnology for environment, health, and safety;
  • Advances in nanoscience, methods, protocols, and metrology;
  • Education and understanding of sustainable nanotechnology; and
  • Applications of nanotechnology for sustainability.

More information regarding SNO is available online.

Canada Adds Nanosubstance To DSL: In a November 21, 2012, Canada Gazette notice, Canada amended the Domestic Substances List (DSL). The amendments include the addition of cellulose, hydrogen sulphate, sodium salt, obtained from sulphuric acid hydrolysis of the bleached pulp, with the substance having the following characteristics:

  1. Nominal length of 100 ± 50 nanometres;
  2. Cross section dimension less than or equal to 10 nanometres; and
  3. Sulphur content of greater than or equal to 0.5 percent and less than or equal to 1.0 percent by weight.

Canada added the substance with substance identity number 91343, rather than a Chemical Abstracts Service (CAS) Registry Number. Substances on the DSL do not require notification unless they are proposed for a significant new activity (SNAc) as indicated on the DSL. Substances not appearing on the DSL are considered to be new to Canada and are subject to notification. The notice is available online.

Regulatory Cooperation Council Holds Stakeholder Webinar On Nanotechnology Initiative: On November 28, 2012, the Canada-U.S. Regulatory Cooperation Council (RCC) held a webinar to discuss its RCC Nanotechnology Work Plan. Canada and the U.S. created the RCC to align better their regulatory approaches in a number of areas, including nanotechnology. According to information presented during the webinar, while the U.S. has received 137 notifications concerning nanomaterial substances, Canada has received only 16. While most of the nanomaterial substances notified in the U.S. were inorganic carbon, most of those notified in Canada were mixed metal oxides. During the webinar, both Canadian and U.S. spokespersons noted the difficulty in sharing information, due to confidential business information (CBI) claims. The RCC would like to be able to share information to inform better their regulatory programs and risk assessment/management approaches. This would include:

  • General Substance Information: Substance name, company, applications, volumes; and
  • Technical Substance Specific Information: Physchem properties, technical studies, and use pattern information.

The RCC requested that industry provide more information on the commercial distribution of nanomaterials, as well as more transparency by claiming confidentiality of only that information absolutely critical to market advantage.

To compare risk assessment and risk management practices to highlight and identify best practices, data gaps, and differences between the two jurisdictions, the RCC sought nominations of a nanomaterial substance for a case study. Four nanomaterial substances were nominated: multiwall carbon nanotubes, nanocrystalline cellulose, nano silver, and titanium dioxide. The RCC has selected multiwall carbon nanotubes for the case study. The RCC intends to hold in March 2013 a workshop in Washington, D.C., to discuss information collected to date and approaches moving forward. In spring 2013, the RCC will hold one or two conference calls or webinars to discuss information gathered between countries and the path forward. Finally, in fall 2013, the RCC expects to hold a stakeholder consultation/workshop on results to date. The slides from the webinar are available online.

EPA And CPSC Collaborating On Nanomaterial Research: On December 11, 2012, EPA and CPSC announced a research collaboration intended to assess potential impacts of nanomaterials on people’s health and the environment. According to EPA’s press release, the research is part of a “larger international effort” that includes:

  • Identifying, characterizing and quantifying the origins of nanomaterials;
  • Studying biological processes affected by nanomaterials that could influence risk;
  • Determining how nanomaterials interact with complex systems in the human body and the environment;
  • Involving industry to develop sustainable manufacturing processes; and
  • Sharing knowledge through innovative online applications that allow for rapid feedback and accelerated research progress.

The press release states that CPSC will use the results of the research to inform:

  • Protocol development to assess the potential release of nanomaterials from consumer products;
  • Credible rules for consumer product testing to evaluate exposure; and
  • Determination of the potential public health impacts of nanomaterial used in consumer products.

EPA’s press release is available online.


ECHA Updates REACH Reporting Guidance: On November 22, 2012, the European Chemicals Agency (ECHA) released two updated guidance documents. The first provides advice on how chemical manufacturers are to report toxicity data in “robust study summaries.” This advice is designed to help companies report toxicity data that may result from changes the Organization for Economic Cooperation and Development (OECD) has made to its test guidelines. The updated guidance is available online. The second document provides guidance on information requirements for reporting physicochemical properties of chemicals. Among other changes, the updated information corrects or deletes mistakes and inconsistencies, ECHA stated. The updated guidance for reporting physicochemical data is available online.

ECHA Discloses Company Name Registering Substances Under REACH: On November 28, 2012, ECHA published the names of companies that have registered substances under the EU’s REACH regulation without claiming confidentiality. In a statement issued on November 28, registrant names have been disclosed for about 26,000 registration dossiers. The REACH registration database contained information from 30,216 dossiers, suggesting that confidentiality claims have been filed for about 4,000 dossiers. The publication of registrant names means the REACH registration dossier database is now easily searchable by company name. The REACH database of registered substances is available online.

Panel Discusses Lessons Learned From Product Regulation In The EU: On December 11, 2012, the Ministry of Brussels, American Bar Association (ABA), and the Environmental Law Institute (ELI) co-sponsored a panel discussion entitled, “Product Regulation in Europe: Setting the International Standard?” to compare lessons learned from implementation of the EU’s REACH regulation to paths forward in the U.S. on TSCA reform. Jim Jones, Acting Assistant Administrator at EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) addressed the issues the U.S. faces in reforming TSCA and acknowledged that the EU with the REACH program is well ahead of the U.S. in regulating chemicals on the market. Jones, however, does not anticipate that TSCA reform will harmonize the existing program with REACH and while there are opportunities for the U.S. and EU to work in collaboration, chemicals may still be regulated differently under each scheme. During the panel discussion, representatives from industry and the legal community in the EU and U.S. discussed whether REACH will become the benchmark for future regulatory programs and the practical challenges end-users have faced through compliance. Panelists agreed that amongst other reforms, any programs considering implementing the REACH model should address issues of balancing prioritization of chemicals for review, restricting the scope of any bans to specific uses versus across the board product bans, and considering whether nano-forms of substances should go through the same process as bulk substances and whether the bulk-form approval will support the nano-form. More information on the event may be found online.


Lux Research Issues Report On The Demand For Biobased Materials: On November 20, 2012, Lux Research Inc. released a report entitled Bridging the Divide between Demands and Bio-Based Materials, in which the properties and commercial attractiveness of 38 applications and 21 conventional and biobased polymers were assessed on 13 criteria, with three demand areas promising opportunity, according to Lux. Lux states that materials that fail to connect with end-user demands never reach the commercialization stage. Lux recommends that developers target large, addressable markets, among which the biggest are composites and coatings, industrial manufactured intermediates, and packaging. Lux notes that developers must offer biobased alternatives at cost parity, offer more biobased drop-in monomers, and continue to close performance gaps on temperature distortion and brittleness, as well as advance biobased polymers beyond their reputation as merely “disposable.” Lux urges developers to meet or exceed expectations on cost and performance and be smart during roll-out. Kalib Kersh, a Lux analyst, stated that the U.S. Department of Agriculture (USDA) would expand the market for biobased chemicals if it fulfills its pledge to certify intermediates through its BioPreferred Program. During a recent conference held by the Society for the Commercial Development of Industrial Biotechnology, a USDA spokesperson stated that USDA intends to cover intermediates in its Program. More information regarding the Lux report is available online.

AFPM Seeks Review Of 2013 Biomass-Based Diesel Fuel Requirement: The American Fuel & Petrochemical Manufacturers (AFPM) petitioned the U.S. Court of Appeals for the District of Columbia Circuit on November 21, 2012, for review of EPA’s 2013 biomass-based diesel renewable fuel requirements. Under EPA’s September 27, 2012, final rule, EPA increased the volume of biomass-based diesel from 1.0 billion to 1.28 billion gallons for calendar year 2013. According to AFPM, a number of factors have surfaced since EPA issued the rule that could result in unintended consequences adversely impacting the domestic refining industry and U.S. consumers. AFPM states that the increase could reduce investment in advanced biofuels that compete with biodiesel and increase carbon emissions. In addition, AFPM notes, the increase could negatively impact the price and supply of agricultural commodities, since additional biodiesel feedstocks, such as soybean oil, would be required under the rule. AFPM’s statement is available online.

NRC Issues Report On Algal Fuels And Convene Seminar: On November 27, 2012, NAS convened a webinar on its recent report entitled Sustainable Development of Algal Biofuels. According to the report, biofuels made from algae are gaining attention as a domestic source of renewable fuel. With current technologies, however, scaling up production of algal biofuels to meet even 5 percent of U.S. transportation fuel needs could create unsustainable demands for energy, water, and nutrient resources, the report finds. Continued research and development could yield innovations to address these challenges, but determining if algal biofuel is a viable fuel alternative will involve comparing the environmental, economic, and social impacts of algal biofuel production and use to those associated with petroleum-based fuels and other fuel sources. For more information, contact the Board on Agriculture and Natural Resources at (202) 334-3062 or visit Copies of Sustainable Development of Algal Biofuels in the United States are available from the National Academies Press, 500 Fifth Street, NW, Washington, D.C. 20001; (800) 624-6242;

EPA Determines Grain Sorghum Ethanol Qualifies As A Renewable Fuel: EPA Administrator Lisa Jackson signed on November 30, 2012, a supplemental rule associated with the Renewable Fuel Standard (RFS) Program. The final rule contains a lifecycle greenhouse gas (GHG) analysis for grain sorghum ethanol and a regulatory determination that grain sorghum ethanol qualifies as a renewable fuel under the RFS Program. According to the rule, EPA’s analysis indicates that ethanol made from grain sorghum at dry mill facilities that use natural gas for process energy meets the lifecycle GHG emissions reduction threshold of 20 percent compared to the baseline petroleum fuel it would replace, and therefore qualifies as renewable fuel. The rule also includes EPA’s regulatory determination that grain sorghum ethanol produced at dry mill facilities, using specified forms of biogas for both process energy and most electricity production, has lifecycle GHG emission reductions of more than 50 percent compared to the baseline petroleum fuel it would replace, and that such grain sorghum ethanol qualifies as an advanced biofuel under the RFS Program. The rule will take effect when it is published in the Federal Register. The signed rule is available online.


House Republican Leaders Appoint New Committee Chairs: House Republican leaders on November 27, 2012, picked several new Committee Chairs that the GOP conference ratified the following day. The new Chairs are:

  • Michael McCaul (R-TX) — Homeland Security Committee;
  • Lamar Smith (R-TX) — Science, Space and Technology Committee;
  • Ed Royce (R-CA) — Foreign Affairs Committee;
  • Bob Goodlatte (R-VA) — Judiciary Committee;
  • Doc Hastings (R-WA) — Natural Resources Committee;
  • Bill Shuster (R-PA) — Transportation and Infrastructure Committee; and
  • Jeb Hensarling (R-TX) — Financial Services Committee.

House leaders granted Representative Paul Ryan (R-WI) a waiver to continue as Chair of the House Budget Committee. House Republicans impose a six-year term limit on Committee Chairs and Ranking Members, but exceptions are made, as in the case with Ryan.

House Democrats Retain Ranking Members: On the other side of the aisle, House Democratic leaders on December 5, 2012, announced that the Ranking Members on the Committees that address environmental issues will retain their roles. Edward Markey (D-MA) will remain as Ranking Member of the Natural Resources Committee. Eddie Bernice Johnson (D-TX) will continue as Ranking Member of the Committee on Science, Space and Technology. Nick Rahall (D-WV) will remain in his role as Ranking Member of the Transportation and Infrastructure Committee. Bennie Thompson (D-MS) will again serve as Ranking Member of the Homeland Security Committee. Elijah Cummings (D-MD) was re-elected as Ranking Member of the Oversight and Government Reform. On December 4, 2012, Democrats also announced that Henry Waxman (D-CA) will continue as Ranking Member of the Energy and Commerce Committee.

Senate Environment And Public Works Committee Retains Democratic Roster: The Senate Environment and Public Works Committee is retaining its Democratic membership intact from the 112th Congress. Senator Barbara Boxer (D-CA) will also remain as Committee Chair.

Senate Democrats Make Changes To Energy Committee: Senate Democrats are revising the makeup of the Energy and Natural Resources Committee in the 113th Congress. Current panel member Jeanne Shaheen (D-NH) is leaving to join the Appropriations panel; Senators Martin Heinrich (D-NM) and Mazie Hirono (D-HI) are joining the Energy Committee.

President Obama Signs Bill Shielding U.S. Airlines From EU Emissions Trading Program: On November 27, 2012, President Obama signed into law legislation that would block U.S. airlines from participating in the EU’s GHG emissions trading program. The European Union Emissions Trading Scheme Prohibition Act of 2011 (S. 1956) requires the Secretary of Transportation to prohibit an operator of a U.S. civil aircraft from participating in the EU scheme if the Secretary determines the prohibition to be in the public interest. The law also encourages the Secretary and other appropriate federal officials to conduct international negotiations to pursue a worldwide approach to address aircraft emissions and requires these same officials to take necessary actions to hold operators of civil aircraft of the U.S. harmless from the EU program.

Superfund Emergency Response Act Introduced In Senate: Senator Frank Lautenberg (D-NJ) on November 29, 2012, introduced legislation that would authorize emergency funding to contain contamination at Superfund sites in the wake of natural disasters such as Hurricane Sandy. The Superfund Emergency Response Act of 2012 (S. 3649) is intended to prevent natural disasters from spreading hazardous substance contamination from Superfund sites. It also would require EPA to conduct a study on the vulnerability of Superfund sites to extreme weather events and to develop a response plan to protect better these sites from natural disasters.

As Fiscal Cliff Looms, EPA Prepares For Severe Budget Cuts: EPA is preparing for across the board 8.2 percent budget cuts if Congress and President Obama cannot reach agreement to steer away from the so-called fiscal cliff. Automatic spending cuts will take effect on January 2, 2013, under the Budget Control Act of 2011, unless lawmakers and the White House can reach an accord. EPA’s 8.2 percent in cuts would apply to all of its discretionary accounts. State and tribal assistance grants, which are funded at a level of $3.56 billion, would be slashed by $293 million, EPA’s environmental programs and management account would see a $220 million reduction, and science and technology programs would be cut by $65 million. Significant cuts to federal grants to the states under the CAA are also expected.

Scientists Push Back Against Bill That Seeks To Revise EPA’s Science Advisory Board: The week of December 7, 2012, two letters — one signed by 13 prominent public health scientists and the other signed by the heads of eight major national environmental organizations — were sent to the House Science Committee voicing strong opposition to H.R. 6564, The EPA Science Advisory Board Reform Act of 2012. The sponsors of this legislation state that it is needed to “enhance transparency and limit conflicts of interest” on EPA’s Science Advisory Board (SAB) and its panels. The scientists’ letters claim the bill would achieve the opposite: “This proposed legislation would only serve to reverse progress in bringing the best scientific advice and analysis to EPA. The consequence would be to deprive EPA of needed scientific advice on the most complex and pressing environmental health problems of our day.”

The letters claim that among the most “perverse” provisions of this bill are two that they claim would turn the very notion of conflict of interest on its head. One would limit scientists that receive competitive grants through EPA’s extramural research program from serving on the SAB or its panels — claiming that such funding constitutes a conflict of interest. The scientists’ letter goes directly at that provision: “The underlying idea that scientists who obtain funding from EPA for any project have conflicts about all EPA matters is baseless and reflects a misunderstanding of who we are as scientists and our role in society.”

Senate Approves Bill Lowering Energy Efficiency Requirements For Appliances: The Senate on December 6, 2012, passed a bill that would weaken appliance energy conservation standards for some appliances. The bill is awaiting President Obama’s action. The American Energy Manufacturing Technical Corrections Act of 2012 (H.R. 6582) was approved by unanimous consent. The legislation amends existing energy conservation standards for appliances such as water heaters and commercial refrigerators with glass displays typically used in deli counters and bakeries. The intent is to provide regulatory relief to small businesses that use these appliances.

Senate Democrats Form Caucus To Advance Climate Legislation: Democrats in the Senate have formed a caucus that will focus its efforts on advancing legislation to curb emissions of GHGs. Senator Barbara Boxer announced the formation of the caucus on December 11, 2012. She said the caucus will work with the Environment and Public Works Committee (which she chairs) and other Committees to move the legislation.

Democratic Governors Association Chair Stated Group Will Focus On Climate Change: Peter Shumlin, Governor of Vermont and the new Chair of the Democratic Governors Association (DGA), stated that the DGA will focus its efforts heavily on climate change during his tenure. This will include state actions to increase renewable energy and other measures to reduce GHG emissions. These state actions would work in tandem with those issued at the federal level by EPA and other federal agencies.

Family Asthma Act: Senator Frank Lautenberg (D-NJ) introduced S. 3641 on November 17, 2012, a bill that would establish a program of federal collaboration with state and local health departments to conduct activities, including the provision of information and education to the public regarding asthma including: (1) deterring the harmful consequences of uncontrolled asthma; and (2) disseminating health education and information regarding prevention of asthma episodes and strategies for managing asthma. The federal government would work with state and local health departments to develop state plans incorporating public health responses to reduce the burden of asthma, particularly regarding disproportionately affected populations. Other features of the bill would be cooperation with state and local public health officials to conduct asthma surveillance activities to collect data on the prevalence and severity of asthma, the effectiveness of public health asthma interventions, and the quality of asthma management. Reports to Congress would be required on the activities to coordinate and improve action to combat asthma. A similar measure, H.R. 6608, was introduced in the House by Representative Carolyn McCarthy (D-NY).

Bill Seeks To Authorize Carcinogen-Free Labeling: On November 16, 2012, Representative Theodore Deutch (D-FL) introduced the Carcinogen-Free Label Act of 2012. The bill directs the head of each federal agency that regulates a covered product to establish a program to permit the labeling of such a product that does not contain any carcinogens as “Carcinogen-Free.” According to the measure, a “covered product” is any product offered for sale that is: (1) regulated by the Food and Drug Administration (FDA), EPA, USDA, or CPSC; and (2) intended for individual or residential use. In order to sell a product with a carcinogen-free label, a company must insure that the head of the relevant federal agency has approved a labeling application and make certain that the product does not contain any substance that is not listed in such application. The heads of the named agencies are further directed to coordinate to develop an easily recognizable label: (1) to be affixed to a covered product to signify that it has been approved for “Carcinogen-Free” labeling, and (2) to include a notice stating: “This product does not contain known or likely carcinogens that increase your risk of cancer.”


UN Climate Talks End With Agreement On Path Forward: The United Nations (UN) 18th Conference of the Parties (COP) to the 1992 UN Framework on Climate Change closed on December 8, 2012, with negotiators finding common ground on the adoption of documents setting a path forward that would result in a global pact on climate change by 2020. The negotiators, meeting in Doha, Qatar, agreed on language that would require all nations to accept commitments to address climate change. The text on the 2020 pact, Advancing the Durban Platform (UNFCCC/CP/2012/L.13), launches two work streams in 2013 on the global deal’s scope and structure: a detailed look at emissions mitigation and climate adaptation efforts; and further review of whether parties can provide reductions in GHG emissions before 2020.

ATSDR Announces Availability Of Tox Profiles: On December 13, 2012, the Agency for Toxic Substances and Disease Registry (ATSDR) announced the availability of ten final toxicological profiles of priority hazardous substances prepared by ATSDR. 77 Fed. Reg. 74192. The profiles are:

Toxicological ProfileCAS No.
1. Acrylamide79-06-1
2. 1,3-Butadiene106-99-0
3. Cadmium7440-43-9
4. Carbon Monoxide630-08-0
5. Chromium7440-47-3
6. 1,4-Dioxane123-91-1
7. Manganese7439-96-5
8. Phosphate Ester Flame Retardants78-51-3
9. Radon10043-92-2
10. Vanadium7449-62-2

Department Of Labor Web Tool Helps Employers Understand OSHA Recordkeeping: The U.S. Department of Labor (DOL) recently announced a new Web tool to help medical professionals and workers exposed to cadmium in the workplace, understand the federal monitoring and surveillance requirements of the general industry Cadmium Standard. The Cadmium Standard provides guidance on conditions that may require a worker to be removed from further Cadmium exposure. The Occupational Safety and Health Administration (OSHA) Cadmium Biological Monitoring Advisor relies on data from biological monitoring tests and analyzes biological monitoring lab results for currently exposed workers. It determines the biological monitoring and medical surveillance requirements of the general industry Cadmium Standard applicable to those results. The OSHA Cadmium Biological Monitoring Advisor is available online.

This Advisor is one of a series of online elaws (Employment Laws Assistance for Workers and Small Businesses) Advisors developed by DOL to help employers and employees understand federal employment laws. For a complete list of elaws Advisors, visit the elaws website.

This Update is provided as a complimentary service to our clients and is for informational purposes. This Update may be copied or quoted, provided proper attribution is given. The contents are not intended and cannot be considered as legal advice.