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July 1, 2010

Monthly Update for July 2010

Bergeson & Campbell, P.C.


EPA Releases Updated Schedule For Registration Review: On June 16, 2010, the U.S. Environmental Protection Agency (EPA) announced the availability of an updated schedule for the pesticide registration review program, the periodic review of all registered pesticides mandated under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 3(g). 75 Fed. Reg. 34115. The updated schedule provides the timetable for opening dockets for the next four years of the registration review program — Fiscal Years (FY) 2010 to 2013 — and includes information on the FY 2007 through FY 2009 registration review cases. The updated registration review schedule reflects EPA’s decision to review all pesticides in two groups — fumigants and triazines — within the same time frame. In recent years, EPA moved these pesticides ahead in the schedule so that dockets for all pesticides in these groups will open in FY 2013. EPA states that it is implementing risk mitigation decisions for the soil fumigants, and is aware of new research underway to refine understanding of factors that affect how fumigants move in the environment. By moving the soil fumigants forward in registration review from 2017 to 2013, EPA will be in a position to consider new data and new technologies sooner, determine whether mitigation included in its decisions is effectively addressing risks as EPA believes it will, and include other fumigants that were not part of the reregistration review of these pesticides.

EPA Extends Comment Period On Draft PR Notice Concerning False Or Misleading Pesticide Product Brand Names: On June 17, 2010, EPA published a Federal Register notice announcing the extension of the comment period on its draft Pesticide Registration (PR) Notice entitled “False or Misleading Pesticide Product Brand Names.” 75 Fed. Reg. 34448. The draft PR Notice is intended to provide guidance to applicants, registrants, and distributors concerning pesticide product brand names that may be false or misleading, either by themselves or in association with particular company names or trademarks. The draft PR Notice is available online in docket EPA-HQ-OPP-2010-0282. Comments are due by August 17, 2010. More information is available online.

EPA Issues Direct Final Rule On SNURs: On June 24, 2010, EPA promulgated significant new use rules (SNUR) under Toxic Substances Control Act (TSCA) Section 5(a)(2) for 17 chemical substances that were the subject of premanufacture notices (PMN). 75 Fed. Reg. 35977. Two of the chemical substances are subject to TSCA Section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture, import, or process any of these 17 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before July 26, 2010. Please consult the Federal Register for further information on the 17 chemicals subject to this rule.

EPA Settles Case Concerning Human Subjects Protections Rule: On June 18, 2010, EPA announced that it has settled a lawsuit over its 2006 final rule regarding protections for subjects in human research. Under the settlement, EPA agrees to propose amendments to the rule consistent with language negotiated by the groups who challenged it — Natural Resources Defense Council, Pesticide Action Network North America, Pineros y Campesinos Unidos Del Noroeste, Physicians for Social Responsibility, Farm Labor Organizing Committee, AFL-CIO, and Migrant Clinicians Network. EPA states that the proposed changes “will formalize many current procedures that EPA has been following as it implemented the 2006 rule and address the three principal areas identified by the petitioners: the scope of the rule, its consistency with the 2004 National Academy of Science (NAS) recommendations, and its consistency with the Nuremberg Code.” As required by the settlement, EPA will publish the proposed amendments in a Federal Register notice before January 16, 2011, and open a public comment period at the same time. EPA will promulgate a final rule by December 16, 2011. EPA’s announcement is available online, and the settlement is available online. A detailed summary of the decision is available online.

EPA Declares A Prion As A Pest Under FIFRA: On July 7, 2010, EPA announced its decision that a prion is a pest under FIFRA. 75 Fed. Reg. 38958. EPA forwarded to the Secretaries of Agriculture and Health and Human Services a draft proposed rule regulating a prion as a pest, “so a product intended to reduce the infectivity of any prion on inanimate surfaces (i.e., a “prion product”) is considered to be a pesticide and regulated as such.” Assuming neither Secretary objects, a proposed rule will be published in the Federal Register.

EPA Publishes EPCRA Reporting Guidance And Interpretations: In the July 13, 2010, Federal Register, EPA provides guidance on various reporting options that states and local agencies may choose in implementing Sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). 75 Fed. Reg. 39852. In addition, EPA also provides some new interpretations and revises some existing ones “to help facilities comply with certain of the requirements under EPCRA.” The effective date of the guidance and interpretations is July 13, 2010. More information is available online.


EPA Issues Proposal To Regulate Coal Combustion Residuals: On June 21, 2010, EPA proposed to regulate for the first time coal combustion residuals (CCR) under the Resource Conservation and Recovery Act (RCRA) to address the risks from the disposal of CCRs generated from the combustion of coal at electric utilities and independent power producers. 75 Fed. Reg. 35128. EPA is considering two options in this proposal and, thus, is proposing two alternative regulations. Under the first proposal, EPA would reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs and list these residuals as special wastes subject to regulation under RCRA Subtitle C, when they are destined for disposal in landfills or surface impoundments. Under the second proposal, EPA would leave the Bevill Determination in place and regulate disposal of such materials under RCRA Subtitle D by issuing national minimum criteria. Under both alternatives, EPA is proposing to establish dam safety requirements to address the structural integrity of surface impoundments to prevent catastrophic releases. EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, which are currently exempt from the hazardous waste regulations under RCRA Section 3001(b)(3)(A). EPA is clarifying this determination and seeking comment on potential refinements for certain beneficial uses. EPA is also not proposing to address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action. Comments must be received on or before September 20, 2010.

In a related development, EPA announced on July 15, 2010, the scheduling of several public hearings on the proposal to regulate CCRs. 75 Fed. Reg. 41121. Hearings will be held in multiple locations around the country in August and September. Please consult the Federal Register for details.


EPA Proposes Revisions To Total Coliform Rule: On July 14, 2010, EPA proposed revisions to the 1989 Total Coliform Rule (TCR), a national primary drinking water regulation (NPDWR). 75 Fed. Reg. 40926. The proposed revisions to the TCR will: require public water systems (PWS) that are vulnerable to microbial contamination to identify and fix problems, and establish criteria for systems to qualify for and stay on reduced monitoring, thereby providing incentives for improved water system operation. The proposed rule establishes a health goal (Maximum Contaminant Level Goal or MCLG) and a Maximum Contaminant Level (MCL) for E. coli and eliminates the MCLG and MCL for total coliform, replacing it with a treatment technique for coliform that requires assessment and corrective action. The proposed rule is establishing an MCLG and an MCL of 0 for E. coli, a more specific indicator of fecal contamination and potential harmful pathogens than total coliform. EPA is proposing to remove the current MCLG and MCL of zero for total coliform. Many of the organisms detected by total coliform methods are not of fecal origin and do not have any direct public health implication. Under the proposed treatment technique for coliform, total coliform serves as an indicator of a potential pathway of contamination into the distribution system. A PWS that exceeds a specified frequency of total coliform occurrence must conduct an assessment to determine if any sanitary defects exist, and, if found, correct them. In addition, under the proposed treatment technique requirements, a PWS that incurs an E. coli MCL violation must conduct an assessment and correct any sanitary defects found. Comments are due by September 13, 2010.

EPA Issues Final Rule Requiring Four Industrial Sectors To Report Greenhouse Gas Emissions: On July 12, 2010, EPA issued a final rule requiring facilities in four industrial sectors to report greenhouse gas emissions. 75 Fed. Reg. 39736. The final rule imposes emissions reporting requirements on industrial landfills, industrial wastewater treatment facilities, underground coal mines, and magnesium production facilities with emissions exceeding 25,000 metric tons of carbon dioxide-equivalent greenhouse gases. All underground coal mines that are subject to quarterly or more frequent sampling of ventilation systems by the Mine Safety and Health Administration must report greenhouse gas emissions to EPA. The four source categories must begin monitoring greenhouse gas emissions beginning January 1, 2011. They must submit the first annual report of emissions to EPA by March 31, 2012. The final rule is effective on September 10, 2010. More information on the reporting rule for the four sectors, including text of the final rule, is available online.

EPA Issues Proposed Confidentiality Determinations For Data Required Under Mandatory Greenhouse Gas Reporting Rule: On July 7, 2010, EPA proposed to determine the confidentiality status of data required to be reported under the Mandatory Greenhouse Gas Reporting Rule. 75 Fed. Reg. 39094. The proposal describes the data categories EPA has developed for the Mandatory Greenhouse Gas Reporting Rule data elements and EPA’s proposed confidentiality determination for each category. In addition, the proposal includes EPA’s proposed amendment to Special rules governing certain information obtained under the Clean Air Act. The proposed amendment would authorize EPA to release or withhold as confidential reporting elements in the Mandatory Greenhouse Gas Reporting Rule according to the determinations made in a final action without taking certain additional procedural steps currently required. This action also solicits comments on several key issues related to the proposed confidentiality determinations and amendment. Comments must be received on or before September 7, 2010. More information on the confidentiality proposal, including text of the proposal, is available online.

EPA Issues Final Primary National Ambient Air Quality Standard For Sulfur Dioxide: On June 22, 2010, EPA issued a final rule revising the primary sulfur dioxide (SO2) National Ambient Air Quality Standard (NAAQS) for oxides of sulfur as measured by SO2. 75 Fed. Reg. 35520. EPA is establishing a new 1-hour SO2 standard at a level of 75 parts per billion (ppb), based on the three-year average of the annual 99th percentile of 1-hour daily maximum concentrations. EPA is also revoking both the existing 24-hour and annual primary SO2 standards. This final rule is effective on August 23, 2010.

EPA Announces Web Dialogue: On July 13, 2010, EPA announced a web dialogue to discuss its Drinking Water Strategy and how it can address contaminants as a group or groups. 75 Fed. Reg. 39935. The Strategy includes the following four principles: addressing some contaminants as group(s) rather than one at a time so that enhancement of drinking water protection can be achieved cost-effectively; fostering development of new drinking water technologies to address health risks posed by a broad array of contaminants; using the authority of multiple statutes to help protect drinking water; and partnering with States to share more complete data from monitoring at PWSs. The web dialogue will focus on the first of the four principles, addressing some contaminants as group(s) rather than addressing single contaminants. EPA invites the public and stakeholders to participate in this information exchange. The web dialogue is a two-day event, July 28-29, 2010. This meeting will take place online. Please consult the Federal Register for details.


ECHA Lists Eight Substances As Candidates For Restrictions Under REACH: On June 18, 2010, the European Chemicals Agency (ECHA) added eight substances to a “candidate list” for authorization, meaning the substances are considered to be of “very high concern” and could be banned or restricted under the European Union’s (EU) Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) legislation. The newly added substances are ammonium dichromate, boric acid, disodium tetraborate, potassium chromate, potassium dichromate, sodium chromate, tetraboron disodium heptaoxide, and trichloroethylene. The listing brings the number of substances on the list to 38. ECHA has sent the European Commission (EC) seven substance dossiers proposing restrictions, but no decisions have been made to phase out substances or to restrict their use to authorized procedures only. The ECHA candidate list of substances of very high concern for authorization is available online.

More recently, on July 1, 2010, ECHA requested comment on proposals to list the eight substances in Annex XIV. The consultation will remain open until September 30, 2010. More information is available online.

ECHA Publishes Technical Manual For Including Nanoforms In An IUCLID Dossier: On June 11, 2010, ECHA announced the availability of a technical manual for including nanoforms in an International Uniform Chemical Information Database (IUCLID) dossier. The Nanomaterials in IUCLID 5.2 Industry User Manual “gives practical instruction to [Registration, Evaluation, Authorization and Restriction of Chemicals (REACH)] registrants on how to include information on different forms of a substance in a IUCLID 5.2 dossier.” The Manual introduces a book-keeping principle, where each form gets a specific label that enables it to be tracked throughout the dossier. Instructions are given on how to create labels for form-specific reference substances, composition blocks, endpoint study records, and analytical data. In particular, the Manual “gives instructions that will enable registrants to consistently create and label Endpoint study records such that it is clear which composition or form was used as the test substance for that study.” The Manual states:

Nanomaterials are covered under the substance definition in REACH and may be considered to be distinct substances or forms of a substance (CA/59/2008). The sole purpose of this document is to provide registrants with information on how to technically prepare their IUCLID dossiers for nanomaterials. It is the responsibility of the registrant to identify the substance and this document does not provide any information that will aid the registrant deciding when a nanomaterial can be considered to be a distinct substance or a nanoform. Moreover, following the technical advice given in this document does not imply that a dossier would be compliant with REACH requirements should it be selected for evaluation.

The Manual notes that, although there are no specific information requirements for nanomaterials under REACH, it encourages registrants “to include any information they consider relevant to better describe the substance and to demonstrate its safe use.” The Manual suggests that registrants take advantage of the preliminary guidance of the Organization for Economic Cooperation and Development (OECD) Working Party on Manufactured Nanomaterials (WPMN) on testing, exposure measurements, and mitigation of nanomaterials. The Manual is available online. The OECD WPMN materials are available online.

ECHA Releases Software To Check EU Dossier Data Made Public: On June 30, 2010, ECHA released software that allows chemical and other companies to check which information that is part of their registration dossiers will be made public on the Internet. The goal of the software “is to help registrants to prepare dossiers that can be disseminated without revealing business-confidential information,” the chemical agency stated. The software, the IUCLID 5 Dissemination plug-in, simulates the automated filtering of REACH registration dossiers that ECHA carries out and identifies information that will be placed on the Internet. Links to the software and related information are available online.


ECHA Releases New Practical Guide On How To Address Specific Substance Identification Issues: Evaluation Of Different Crystalline Forms: On June 22, 2010, ECHA announced that a new practical guide makes clear that inorganic substances with the same chemical composition but different crystalline forms are regarded as different substances under the REACH regulation (EC No. 1907/2006). Practical guide 11: How to address specific substance identification issues (Practical Guide) is available online. The assessment of substance identity is part of the evaluation process carried out by ECHA after registration. The information presented in the Practical Guide explains the approach ECHA will adopt in evaluating the identity of inorganic substances, helping potential registrants to prepare their registration dossiers. The Practical Guide will be updated whenever ECHA becomes aware of issues that would benefit from specific, targeted advice of this kind. Registrants are advised to take note of this Practical Guide when preparing their registration dossiers to ensure compliance under REACH. More information on the Practical Guide is available online.

OSTP Issues RFI: On July 6, 2010, the Office of Science and Technology Policy (OSTP) issued a request for information (RFI) for specific input for the next National Nanotechnology Initiative (NNI) Strategic Plan to be published in December 2010. 75 Fed. Reg. 38850. This RFI refers to the NNI Goals identified from the 2007 Strategic Plan (available online) as a starting point for questions covering themes such as research priorities, investment, coordination, partnerships, evaluation, and policy. OSTP is interested in responses to specific question set forth in the RFI. Questions include, among others: What specific and measurable objectives should be established to help achieve the four stated NNI goals? Are there other overarching goals that would enable the NNI to better support the vision of a future in which the ability to understand and control matter at the nanoscale leads to a revolution in technology and industry that benefits society? What are the most important gaps in the NNI R&D portfolio (i.e., specific underfunded areas ripe for success) that should be addressed to achieve the NNI goal(s)? What nanotechnology R&D areas should NNI member agencies pursue under the Nanotechnology Signature Initiatives model of close and targeted program-level interagency collaboration to help accelerate nanotechnology innovation? Any questions about the content of this RFI should be sent to Additional information regarding this RFI is available online.

EU Research Agency Calls For Definition Of Nanomaterial: On July 2, 2010, the EC’s Joint Research Center issued a report calling for a definition of nanomaterials to foster regulatory clarity. The Research Center stated “there is at present no widely accepted definition of the term ‘nanomaterial'” and that a definition is needed. The report was published in response to concerns raised in the European Parliament (EP) that current EU regulation of nanomaterials is inadequate. The Joint Research Center report, Considerations on a Definition of Nanomaterial for Regulatory Purposes, is available online.

European Parliament Votes To Restrict Nanoscale Ingredients In Food: On July 7, 2010, the EP voted that nanoscale ingredients should be banned from food in the EU until the health and environmental risks they might pose are better understood, and that any nanoscale ingredients that are eventually authorized should be clearly labeled as such. The EP voted on several amendments to draft legislation concerning the authorization of novel foods, including a provision that would prohibit food from cloned animals or their offspring. The EP has been unable to reach agreement with the European Council on the legislation, largely because of the provision concerning cloned animals. The Council also disagrees that foods containing nanoscale ingredients should be systematically labeled, however. According to an EP spokesperson, the legislation likely will go to conciliation, during which the EP and European Council will attempt to negotiate a compromise after two readings have failed to produce an agreement. The legislation likely will be discussed again in the fall.

GAO Report States That EPA Faces Challenges In Regulating Risk Of Nanomaterials: According to a report released by the U.S. Government Accountability Office (GAO), EPA faces challenges in effectively regulating nanomaterials that may be released in air, water, and waste because EPA lacks the technology to monitor and characterize these materials, or the statutes include volume-based regulatory thresholds that may be too high for effectively regulating the production and disposal of nanomaterials. In preparing its report, GAO identified examples of current and potential uses of nanomaterials; determined what is known about the potential human health and environmental risks from nanomaterials; assessed actions EPA has taken to better understand and regulate the risks posed by nanomaterials as well as its authorities to do so; and identified approaches that other selected national authorities and actions U.S. states have taken to address the potential risks associated with nanomaterials. GAO analyzed selected laws and regulations, reviewed information on EPA’s Nanoscale Materials Stewardship Program, and consulted with EPA officials and legal experts to obtain their perspectives on EPA’s authorities to regulate nanomaterials. The report, entitled Nanotechnology: Nanomaterials Are Widely Used in Commerce, but EPA Faces Challenges in Regulating Risk, is available online. A detailed summary of the report is available online.


Scientists Claim Senate Clean Energy Measure Needs Work: The Union of Concerned Scientists (UCS) issued a statement criticizing the energy bank provisions of the American Clean Energy Leadership Act approved by the Senate Energy and Natural Resources Committee more than one year ago. The statement in part reads: “A proposal by Sens. Jeff Bingaman (D-N.M.) and Lisa Murkowski (R-Alaska) for a clean energy bank would not protect U.S. taxpayers, guarantee support for the most cost-effective technologies, or allow for proper congressional oversight, according to the Union of Concerned Scientists (UCS).” The proposed clean energy bank, called the Clean Energy Deployment Administration (CEDA), would offer a range of unlimited financing options, including direct loans, letters of credit, loan guarantees, and insurance for energy production, transmission, and storage projects, emphasizing “breakthrough” technologies that would reduce global warming emissions and energy consumption. Renewable energy, advanced nuclear, and coal carbon capture and storage projects all would qualify for assistance. UCS, however, is concerned that steps have not been taken to ensure that the funds go primarily to innovative new energy sources, and not to the developed portions of the industry. UCS is urging the Senate to include protections that would limit taxpayer exposure to unnecessary and potentially unlimited risk: “The federal government has an important role to play ensuring the availability of financing to help innovative, low-carbon technologies cross the ‘valley of death’ so that they can be deployed on a large scale and become commercially viable,” said Ellen Vancko, UCS’s nuclear energy and climate change project manager. As a remedy to the purported shortcomings of the measure, UCS would like to limit the amount of money available for any one technology, subject the CEDA to the Federal Credit Reform Act to ensure ongoing Congressional oversight and budget authority, and limit loan guarantees to help the private sector deploy emerging clean energy technologies on a large scale and enable those technologies to become commercially viable.

President Obama Signs Bill To Control Formaldehyde Emissions: On July 7, 2010, President Obama signed into law the Formaldehyde Standards for Composite Wood Products Act, which would amend TSCA to make the formaldehyde emission standard contained in the California Code of Regulations (relating to an airborne toxic control measure to reduce formaldehyde emissions from composite wood products, as in effect on July 28, 2009) applicable to hardwood plywood, medium-density fiberboard, and particleboard sold, supplied, offered for sale, or manufactured in the United States. The measure exempts hardboard, structural plywood, wood packaging, and composite wood products used inside new vehicles, rail cars, boats, aerospace craft, or aircraft. The EPA Administrator is directed in the legislation to promulgate regulations to ensure compliance equivalent to compliance with the California standard, including its provisions relating to labeling, chain of custody requirements, sell-through provisions, ultra low-emitting formaldehyde resins, no-added formaldehyde-based resins, finished goods, third-party testing and certification, auditing and reporting of third-party certifiers, recordkeeping, and enforcement. Also, the Administrator is directed to work with other federal officials to revise by July 1, 2013, regulations promulgated under TSCA concerning import certification of any chemical substance, mixture, or article containing a chemical substance or mixture as necessary to ensure compliance with this Act.

Senator Murkowski Moves To Support Rare Element Mining: Senator Murkowski (R-AK) has introduced S. 3521, the Rare Earths Supply Technology and Resources Transformation Act of 2010 or RESTART Act. The Act is to provide for the reestablishment of a domestic rare earths materials production and supply industry in the United States. One of the first steps mandated by the legislation is the creation of a Task Force headed by the Secretary of the Interior and including the Secretaries (or designees) of the Commerce, Defense, Agriculture, and State Departments, and others. The Task Force will help review and assess the permit approval process for permits to develop domestic rare earths materials, and review laws that might discourage said development process. In addition to the Task Force, another Cabinet level group is directed to assess the vulnerability of the rare earth supply chain, and the Defense Department is tasked with assessing the projects underway or planned under the Defense Production Act of 1950 to support the rare earth supply chain, particularly projects to establish or support domestic manufacturing capability in critical segments of the rare earth market. There are also provisions on how to support loan guarantees to the domestic rare earth industry and otherwise support the reestablishment of the security of rare earth supplies.

House Votes For Agency Report Cards: The House passed and referred to the Senate on June 17 the Government Efficiency, Effectiveness, and Performance Improvement Act of 2009. The bill, introduced by Representative Henry Cuellar (D-TX) on April 28, 2009, directs in pertinent part that each federal agency head, in collaboration with the Director of the Office of Management and Budget (OMB), conduct an assessment of each agency program at least once every five FYs, assessing the program’s purpose, strategic plan and objectives, organizational design, management, efficiency, and effectiveness in achieving its performance objectives and identifying strengths and weaknesses and factors affecting program success. The measure also expresses the sense of Congress that each federal agency head should consult with the Congressional committees with jurisdiction over the agency each FY regarding the agency’s performance plan.

Senators Move To Separate The Mississippi River And The Great Lakes: Members of the Senate from Midwestern states around the Great Lakes are pitching their support to the Close All Routes and Prevent Asian Carp Today Act of 2010. The Act was introduced in January 2010 by Senator Debbie Stabenow (D-MI) and interest in the measure has heightened since a fisherman caught an Asian carp within a short distance of Lake Michigan and beyond the Electronic Disbursal Barrier System maintained by the United States Army Corp of Engineers to prevent such migration from the Mississippi River. The Stabenow measure would mandate a series of ten actions designed to permanently separate the two waterways and prevent any migration of bighead and Silver carps, said to be a menace to the multi-billion dollar fishing business on the Great Lakes.

Senate Moves To Clarify Federal Responsibility For Stormwater Pollution: The Senate Environment and Public Works Committee approved a bill submitted by Senator Ben Cardin (D-MD) that would require federal government departments and agencies to pay reasonable fees or assessments made by state and local authorities for the purpose of stormwater management “in the same manner and to the same extent as any nongovernmental entity.” The bill further provides that any such fee or assessment shall not be considered to be a tax or other levy “subject to an assertion of sovereign immunity.” Senator Cardin brought forward the measure in reaction to the refusal of three federal agencies to pay an impervious surface fee added by the District of Columbia government water bills to pay for the replacement of its old sewer/stormwater system. The agencies had refused to pay the added fee, claiming it was in fact a tax and not a fee for services.

Promoting Exports Of Clean Energy Technology Firms: The House Commerce, Trade and Consumer Protection Subcommittee of the Energy and Commerce Committee approved on June 30, 2010, a measure intended to strengthen United States clean energy technology manufacturing by establishing a Clean Energy Technology Manufacturing and Export Assistance Fund, to be administered through the International Trade Administration. The Secretary of Commerce is to be responsible for the administration of the Fund in order to promote policies that will reduce production costs and encourage innovation, investment, and productivity in the clean energy technology sector, and implement a national clean energy technology export strategy. The purpose of the Fund is to ensure that United States clean energy technology firms, including clean energy technology parts suppliers and engineering and design firms, have the information and assistance they need to be competitive. The legislation envisions that the purpose will be accomplished by the Secretary providing information, tools, and other assistance to United States businesses to promote clean energy technology manufacturing and facilitate the export of clean energy technology products and services. “Clean energy technology” is defined in the bill as meaning a technology that achieves substantial reductions in greenhouse gas emissions; does not result in significant incremental adverse effects on public health or the environment; and does one or more of the following: (i) generates electricity or useful thermal energy from a renewable resource; (ii) substantially increases the energy efficiency of buildings, industrial, or agricultural processes, or of electricity transmission, distribution, or end-use consumption; or (iii) substantially increases the energy efficiency of the transportation system or increases utilization of transportation fuels that have lifecycle greenhouse gas emissions that are substantially lower than those attributable to fossil fuel-based alternatives. The measure would call for the appropriation of $15,000,000.00 per year for FYs 2011 through 2015. The Secretary of Commerce would be responsible under the legislation for the preparation of a report by January 1, 2015, showing the extent of the program and assessing its success in meeting the objectives set by Congress.

Oil Spill Legislation: A variety of legislative and other Congressional initiatives are moving through Congress in response to the Gulf Oil Spill. The legislation deals with assistance to the victims of the spill, liability for causing such spills, changes to regulations to require faster response to spills, modification and upgrading of industry practices, revision of government regulations and departments responsible for response to spills, and initiatives to combine “spill legislation” with energy legislation presently short of votes needed for passage. The “help” legislation includes H.R. 4899, with provisions to deal with unemployment benefits and other assistance, and other oil spill relief programs. Liability legislation includes S. 3305, the Big Oil Bailout Prevention Unlimited Liability Act, that would provide for unlimited liability for spills such as that in the Gulf. The Blowout Prevention Act of 2010, H.R. 5626, is one of the measures that would set new standards for industry practices. It would require a demonstration of the ability to drill relief wells within 15 days and would mandate third-party inspections of drilling and safety equipment. Other proposed legislation would revamp the Interior Department offices responsible for regulation of drilling and overhaul drilling regulations as well as industry practices and regulatory standards.

Chemical Security Measures To Be Considered: According to various trade reports, Congress will take soon some form of extension or expansion of the chemical security legislation presently set to expire in October 2010. The basic choices are between a measure introduced in the Senate that would extend the present provisions for a period five years, until October 4, 2015, and a bill in the House of Representatives that would extend the program and expand its reach. The House measure would extend coverage to drinking water and waste water facilities and port facilities, requiring EPA to establish tiered, risk-based performance standards for the security of covered water systems and to establish deadlines for systems to assess the vulnerability of their treatment works and to develop security and emergency response plans. The House version would also incorporate the requirement that companies that deal with potentially dangerous chemicals use inherently safer technology (IST) to reduce risk in their facilities. The Houses are reportedly deeply divided regarding IST, with Republicans objecting to the lack of any definition of IST, and questioning the approach as opposed to closer cooperation between government and the chemical facilities.


Supreme Court Sets Aside Injunction That Prohibited APHIS From Partially Deregulating Genetically Engineered Alfalfa: On June 21, 2010, the Supreme Court issued a decision in Monsanto, et al. v. Geertson Seed Farms, et al. In the 7-1 decision, the Court reversed a decision by the 9th Circuit Court of Appeals. The Court held that the District Court that reviewed a decision by the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture abused its discretion when it issued an injunction precluding APHIS from allowing any sale or use of Roundup Ready Alfalfa (RRA), a variety of alfalfa genetically engineered to tolerate the herbicide glyphosate. The text of the full opinion can be viewed online. A detailed summary is available online.

Health Canada Provides Pesticide Manufacturers With Exclusive Use Data Rights Protections For New Products And Minor Uses: On June 23, 2010, Health Canada issued final regulations to set forth new “rules on how the scientific data used to support a pesticide registration is protected from reliance by another applicant or registrant.” The regulations are available online. Health Canada states: “These Regulations are designed to provide a legally enforceable and fair process of pesticide data protection. They are intended to benefit pesticide users, particularly in the agricultural sector, by encouraging the registration of new, innovative and minor uses and facilitating the timely and predictable entry of competitively priced generic pesticides via a clear negotiation and arbitration process.” A detailed summary of the final regulations is available online.

Canada Proposes Consumer Product Safety Legislation: Canada’s government proposed on June 9, 2010, a Consumer Product Safety Act that would strengthen product safety laws by prohibiting products deemed to be unsafe and making it an offense to use labels that make false or deceptive safety or health claims. The bill, C-36, which was introduced in the House of Commons, would add polycarbonate baby bottles that contain bisphenol A to the schedule of prohibited products. The legislation would require manufacturers or importers to provide test results on products when requested and would also require recordkeeping and reporting of adverse incidents where a product is linked to a serious incident, death, or product safety issue. Full text of the bill is available online.

California Releases Draft Regulations For Safer Consumer Product Alternatives: The California Department of Toxic Substances Control (CDTSC) released on June 23, 2010, the draft regulations for safer consumer product alternatives. CDTSC states that the draft regulations “would prioritize toxic chemicals and products, require manufacturers to seek safer alternatives to toxic chemicals in their products, and create tough governmental responses for lack of compliance.” Under the draft regulations, CDTSC would create a list of chemicals that it deems toxic and believes could harm people or the environment. Products containing those chemicals would be prioritized based upon such factors as the volume in commerce, the extent of public exposure, and how the product is eventually disposed. Manufacturers of those products would be required to perform an “alternatives assessment” to determine if a viable safer alternative is available. CDTSC will hold two half-day public workshops, on July 7 and July 8, 2010. Comments on the draft regulation are due July 15, 2010. CDTSC states that, following the July workshops, it “intends to begin the formal Administrative Procedures Act (APA) rulemaking process which it plans on completing by the end of this calendar year.” More information is available online. According to CDTSC’s Frequently Asked Questions (FAQ), the draft regulations call for three phases: (1) the prioritization process, during which CDTSC will identify and prioritize chemicals of concern and products that contain them; (2) for those priority products identified in Phase 1, an alternatives assessment, conducted by the product manufacturers, to identify safer alternatives; and (3) CDTSC will impose various regulatory response actions to address any remaining concerns raised by the alternatives selected by manufacturers for implementation, and to move manufacturers toward designing safer products. A detailed summary of the draft regulations is available online.

EPA Launches A Collaborative Website For Integrated Environmental Modeling: On July 8, 2010, EPA announced its new on-line tool for scientific collaboration and knowledge sharing that was built by Purdue University with support from the Agency. The Integrated Environmental Modeling Hub (iemHUB) allows environmental researchers to analyze environmental problems and combine environmental models so that a better understanding of the environment can be developed. With the website, EPA hopes to provide a state-of-the-art resource to the environmental modeling community. The iemHUB supports the development of integrated models and their use in conducting research and informing the decision-making process. The iemHUB is being released by the EPA-supported Community of Practice for Integrated Environmental Modeling (CIEM). The CIEM is an informal collaborative organization that was set up by EPA and other scientists to advance the state of the science and technology related to integrated modeling. More information on iemHUB is available online.

Peter Preuss, Ph.D. Is Reassigned To ORD: On July 14, 2010, EPA announced that Peter Preuss, Ph.D. will head a newly formed group to develop, encourage, facilitate, and enable new ideas throughout the Office of Research and Development (ORD) research program and move the program in the direction of innovative, sustainable solutions to environmental problems. The team working with Dr. Preuss will be a small one, composed of people with diverse backgrounds, working to craft new and innovative approaches that will further ORD’s impact and EPA’s mission. Effective August 1, 2010, Dr. Preuss will be leaving his position with the National Center for Environmental Assessment (NCEA), which he has held for the past eight years. Becki Clark will be appointed as Acting Director of NCEA.