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July 1, 2014

Monthly Update for July 2014

Bergeson & Campbell, P.C.


Limited Space Still Available For Sustainable Futures Training Workshop: There are still spaces available for the Sustainable Futures Training workshop scheduled for August 5-7, 2014, at the George Washington University campus in Washington, D.C. Attendees at the three-day workshop will get firsthand experience with the tools, methods, and models used by the U.S. Environmental Protection (EPA) in its assessment of new chemicals. The workshop includes in-depth presentations and hands-on sessions with EPA’s computer-based models, including a demonstration of exposure modeling tools by recognized expert, Dr. Peter Ranslow of the Consortium for Environmental Risk Management. More information on the Sustainable Futures program and benefits afforded workshop attendees is available online. Parties interested in registering for the workshop should contact Kathleen M. Roberts.

EPA Partially Exempts Three Chemicals From CDR Requirements: On June 19, 2014, EPA issued a direct final rule exempting manufacturers of three chemical substances from reporting process and use information for those compounds. 79 Fed. Reg. 35096. The three chemicals are: 1,3-propanediol (CAS No. 504-63-2); oils, palm kernel (CAS No. 8023-79-8); and bentonite, acid-leached (CAS No. 70131-50-9). The chemicals have food use applications that already are regulated by the U.S. Food and Drug Administration (FDA), according to the Corn Refiners Association, the Institute of Shortening and Edible Oils, and the National Oilseed Processors Association, which filed a joint partial exemption request with EPA in 2011. The three chemicals also are used to make a variety of preparations, including cosmetics, adhesives, finger paints, and water treatment compounds. EPA amended the list of chemical substances that are partially exempt from reporting additional information under the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule based on its determination that the three substances are of “low current interest” with respect to CDR processing and use information. EPA reached this conclusion after considering a number of factors, including: the risk of adverse human health or environmental effects, information needs for CDR processing and use information, and the availability of other sources of comparable processing and use information. The rule is effective August 18, 2014, unless EPA receives adverse comments by July 21, 2014.

EPA Releases Pesticide Assessment Guide To Assess Risks To Bees: On June 20, 2014, EPA issued its “Guidance for Assessing Pesticide Risks to Bees,” a long-awaited guidance for assessing pesticides’ risks to bees. The document provides guidance to risk assessors for evaluating the potential risk of pesticides to bees. The guidance “is not limited to identifying the risk assessment process but includes consideration of the underlying data on which the process is based.” The guidance refers to the White Paper in Support of the Proposed Risk Assessment Process for Bees submitted to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) for review and comment in September 2012. The White Paper describes the tiers of refinement that may be required to support risk management decisions. This guidance also considers recommendations provided by the FIFRA SAP in response to the White Paper, where such recommendations can be immediately implemented. In coordination with the new guidance, President Obama issued on June 20, 2014, a memorandum titled “Creating a Federal Strategy to Promote the Health of Honey Bees and Other Pollinators.” The memorandum directs federal agencies to take immediate steps to support pollinators, and states that those measures may include avoiding use of pesticides in sensitive pollinator habitats. The memorandum creates the Pollinator Health Task Force, which is required within 180 days to create a National Pollinator Health Strategy to understand better, prevent, and recover pollinator losses, and to determine the relevant impacts from the various factors contributing to declines of bees and other pollinators. The memorandum also requires EPA, within 180 days, to assess risks from pesticides, including the controversial neonicotinoid class, to pollinators, and to take appropriate action to protect pollinators. It is unclear how EPA will meet the deadline for assessing neonicotinoids, since Agency officials have stated registration review of the substances, including their risks to pollinators, is currently underway and could last several more years because data from multi-year field studies are needed to complete the assessment. The guidance is available online. President Obama’s memorandum is available online. A more detailed memorandum is available online.

EPA Opens Pesticide Dockets For Review And Comment: On June 25, 2014, EPA opened the public comment period for several registration reviews. 79 Fed. Reg. 36056. Registration review is EPA’s periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration. The following pesticides are part of the registration review process: benzisothiazolin-3-one (BIT) (Case 3026); bispyribac-sodium (Case 7258); imazamethabenz (Case 7207); imazamox (Case 7238); imazapyr (Case 3078); imazapyr (Case 3078); IR3535 (Case 6046); mecoprop (MCPP) (Case 0377); mesotrione (Case 7256); methylisothiazolinone (Case 3092); octhilinone (OIT) (Case 2475); propargite (Case 243); pyraclostrobin (Case 7034); pyraflufen-ethyl (Case 7259); terrazole (formerly etridiazole terrazole) (Case 9); zinc pyrithione (formerly omadine salts) (Case 2480); and zoxamide (Case 7032). Comments must be received on or before August 25, 2014.

EPA Announces Revised Interim Guidance For Efficacy Evaluations Of Products Making Clostridium Difficile Claims: On June 25, 2014, EPA announced that it revised the interim guidance for conducting efficacy evaluations of products making sporicidal claims against Clostridium difficile (C. diff). Antimicrobial pesticide registrants and the laboratories that provide data to support their registrations should begin using the new “Guidance for the Efficacy Evaluation of Products with Sporicidal Claims Against Clostridium difficile.” The new guidelines will help ensure that EPA-registered antimicrobial pesticides are effective against C. diff, which is especially critical in health care settings. The methods that are utilized have not changed since the initial guidance was issued in 2009. EPA also added specificity to the procedures based on the results of two collaborative studies, research conducted by EPA and stakeholders, and input received during laboratory workshops.

EPA Releases Final TSCA TCE Risk Assessment: On June 25, 2014, EPA announced the release of a final risk assessment on several uses of trichloroethylene (TCE). The risk assessment, developed as part of EPA’s TSCA Work Plan process, identified health risks to consumers using spray aerosol degreasers and spray fixatives, and to workers when TCE is used as a degreaser in small commercial shops and as a stain removing agent in dry cleaning. EPA also scheduled a workshop on July 29-30, 2014, on potential TCE degreaser alternatives and possible risk reduction approaches. 79 Fed. Reg. 38024. Additional information on the TCE risk assessment can be found online.

IARC Recommends New Substances And Activities For Review: On July 3, 2014, advisers to the International Agency for Research on Cancer (IARC) recommended the agency evaluate chemicals, pesticides, food contact substances, and occupational situations for their potential to cause cancer in people. The chemicals, pesticides, food contact substances, and occupational situations the advisers recommended IARC evaluate include: disinfected water used for drinking, showering, bathing, or swimming; the fuel additives ethyl tertiary butyl ether (ETBE), methyl tertiary butyl ether (MTBE), and tert-butyl alcohol; bisphenol A (BPA), which is widely used in food can epoxy resins and in plastics; tetrabromobisphenol A (TBBPA), a BPA derivative that is widely used as a flame retardant; sedentary work; shiftwork; and occupational exposure to pesticides. IARC is scheduled to evaluate carbon nanotubes (CNT) September 30, 2014 – October 7, 2014. The recommended priorities for IARC are available online.

EPA Issues 43 Significant New Use Rules On Certain Chemical Substances: On July 9, 2014, EPA issued a direct final rule promulgating significant new use rules (SNUR) under TSCA for 43 chemical substances that were the subject of premanufacture notices (PMN). 79 Fed. Reg. 39268. Six of these chemical substances are subject to TSCA Section 5(e) consent orders issued by EPA. The action requires persons who intend to manufacture (including import) or process any of these 43 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. This rule is effective on September 8, 2014. 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 August 8, 2014. If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before August 8, 2014, EPA will withdraw the relevant sections of this direct final rule before its effective date.

EPA Announces Listening Session Webinars: On July 15, 2014, EPA’s Design for the Environment (DfE) Program announced two listening session webinars as part of an effort to redesign the current DfE Label. The listening sessions are geared toward stakeholders and the opening of an online forum to provide input on possible label design concepts. The listening sessions are part of a multi-step process to gather partner, stakeholder, and public input on the designs. This feedback will help guide the selection of a new DfE label that better communicates that products meeting EPA’s Standard for Safer Products are safer for human health and the environment. To learn more about the DfE Safer Product Label Redesign effort, please visit online. An advance copy of the notice on the webinars can be found online.


Clean Power Plan Published In Federal Register: EPA’s ambitious Clean Power Plan was published in the Federal Register on June 18, 2014. 79 Fed. Reg. 34830. The publication triggers the official 120-day comment period on the historic rule. Comments must be received no later than October 16, 2014. EPA has already populated the rulemaking docket on this rule with almost 600 supporting documents.

Nine Governors Ask President Obama To Rescind Clean Power Plan Rule: On June 16, 2014, Governors from nine states wrote to President Obama urging him to rescind EPA’s Clean Power Plan. The proposal would seek to cut emissions for greenhouse gases (GHG) by 30 percent from existing fossil fuel-fired power plants. The Governors signing the letter were Sean Parnell (Alaska), Mike Pence (Indiana), Bobby Jindal (Louisiana), Phil Bryant (Mississippi), Pat McCrory (North Carolina), Jack Dalrymple (North Dakota), Tom Corbett (Pennsylvania), Rick Perry (Texas), and Matthew Mead (Wyoming). The letter states that “we can confidently say that, according to the best available data, millions of jobs will be lost and billions of dollars will be spent over the coming decades in an effort to comply with these and other federal regulations.”

EPA Proposes Approval Of New Climate-Friendly Refrigerants Under CAA SNAP Program: On July 9, 2014, EPA issued a notice of proposed rulemaking (NPRM) under the Clean Air Act’s (CAA) Significant New Alternatives Policy (SNAP) Program approving additional climate-friendly chemicals. 79 Fed. Reg. 38811. EPA issued the proposed rule in support of President Obama’s Climate Action Plan to increase the options for refrigerants that offer better climate protection without harming the ozone layer. EPA’s SNAP Program evaluates substitute chemicals and technologies that are safe for the ozone layer. This proposed action would expand the list of SNAP-approved substitutes to include more low-global warming potential (GWP) alternatives that can replace both the ozone-depleting substances and high-GWP hydrofluorocarbons (HFC). EPA is proposing to list additional low-GWP hydrocarbon refrigerants in six refrigeration and air conditioning applications: stand-alone commercial and household refrigerators and freezers; very low temperature refrigeration; non-mechanical heat transfer; vending machines; and room air conditioning units. The proposal also adds one lower-GWP HFC (HFC-32) that has one-third the GWP of conventional refrigerants currently being used in room air conditioning units. These refrigerants are already in use in many of these applications in Europe and Asia. In addition to adding these climate friendly alternatives, EPA is also revising the current venting prohibition to account for four of these substitutes, as current evidence suggests that their venting, release, or disposal does not pose a threat to the environment. Comments on the proposed rule are due by September 8, 2014.

EPA Releases New Policy Statement On Climate Change Adaptation: On June 26, 2014, EPA released a new Policy Statement on Climate Change Adaptation intended “to help the nation prepare for and respond to the impacts of a changing climate,” according to an EPA press release announcing the document. The new statement is available online. Since the publication of the first EPA Policy Statement on Climate Change Adaptation in June 2011, EPA claims that new and stronger evidence indicates that human-caused climate change is affecting people in every region of the U.S. According to EPA, the U.S. is now seeing a wide range of impacts associated with human-induced climate change. These impacts pose significant challenges to EPA’s ability to accomplish its mission, and it must adapt if it is to continue fulfilling its statutory, regulatory, and programmatic requirements, EPA stated.


CFSAN Posts Updated Results For Its Total Diet Study: On July 11, 2014, the FDA Center for Food Safety and Applied Nutrition (CFSAN) issued an update to its Total Diet Study (TDS), also referred to as the market-basket study. The update includes analytical results for certain toxics and nutrients in approximately 280 foods collected from various locations around the U.S. from 2006 – 2011 and shipped to FDA laboratories for analysis. The updated analysis includes arsenic, cadmium, calcium, copper, iron, iodine, lead, magnesium, manganese, mercury, molybedenum, nickel, phosphorus, potassium, selenium, sodium, and zinc. For more information, see online.

FDA Updates To Nutritional Label And Serving Sizes: On June 26, 2014, FDA held a public meeting to discuss the proposed changes to the nutrition label and serving sizes. The meeting was attended by interested parties both in Washington, D.C. and via webcast. The Acting U.S. Surgeon General, Rear Admiral Boris D. Lushniak, M.D., M.P.H., gave the opening remarks stating the importance of these changes in relation to the Surgeon General’s national prevention strategy started in June 2011. FDA has posted multiple resources for those interested in reviewing the changes as well as the comments made. More information is available online. A more detailed memorandum is available online. Comments are due by August 1, 2014.

FDA Issues Final Nanotechnology Guidances And Draft Guidance For Comment: On June 24, 2014, FDA issued three final guidances and one draft guidance that it intends to provide “greater regulatory clarity for industry on the use of nanotechnology in FDA-regulated products.” One final guidance addresses FDA’s overall approach for all products that it regulates, while the two additional final guidances and the new draft guidance provide specific guidance for the areas of foods, cosmetics, and food for animals, respectively. FDA states that the three final guidance documents reflect its current thinking on these issues after taking into account public comment received on the corresponding draft guidance documents previously issued (draft agency guidance in 2011; and draft cosmetics and foods guidances in 2012). Comments on the draft guidance are due September 10, 2014. More information is available online.

FDA Center For Devices And Radiological Health Issues New Guidance: On June 20, 2014, FDA’s Center for Devices and Radiological Health (CDRH) issued a new guidance document entitled “Criteria for Significant Risk Investigations of Magnetic Resonance Diagnostic Devices.” The document is intended to assist industry in determining criteria FDA considers “significant risk” in a clinical study where FDA would not consider the use of the device in that study exemption from being conducted under abbreviated Investigation Device Exemptions (IDE). The product codes for these devices are LNH (Magnetic Resonance Imaging System) and LNI (Magnetic Resonance Spectroscopic System). For more information, see online.

FDA Issues Draft Guidance To Industry: On June 25, 2014, FDA announced the availability of the draft guidance for industry entitled “Medical Device Data Systems, Medical Image Storage Devices, and Medical Image Communications Devices.” 79 Fed. Reg. 36072. The draft guidance is being issued to inform manufacturers, distributors, and other entities that FDA does not intend to enforce compliance with the regulatory controls that apply to Medical Device Data Systems (MDDS), medical image storage devices, and medical image communications devices, due to the low risk they pose to patients and the importance they play in advancing digital health. A copy of the draft guidance is available online. According to the notice, to ensure that FDA considers comments on this draft guidance before it begins work on the final version of the guidance, comments must be submitted by August 25, 2014.

FDA Reopens Comment Period On Reportable Food Registry ANPR: On June 18, 2014, FDA reopened the comment period to allow for an additional 60 days of comment on its advance notice of proposed rulemaking (ANPR) entitled “Implementation of the Food and Drug Administration Food Safety Modernization Act Amendments to the Reportable Food Registry Provisions of the Federal Food, Drug and Cosmetic Act” (FDA Docket FDA-2013-N-0590). 79 Fed. Reg. 34668. The original announcement was issued on March 26, 2014. The reportable food registry (RFR) is an electronic report “portal” industry uses to submit information when there is a reasonable probability that use of or exposure to the food article (not including dietary supplements or infant formula) will result in a serious adverse health consequence or death to humans or animals. More information is available online. Comments are due by August 18, 2014.


NNI Publishes Progress Review Of 2011 EHS Research Strategy: On June 25, 2014, the National Nanotechnology Initiative (NNI) posted Progress Review on the Coordinated Implementation of the National Nanotechnology Initiative 2011 Environmental, Health, and Safety Research Strategy, which provides an overview of progress on the implementation and coordination of the 2011 NNI Environmental, Health, and Safety (EHS) Research Strategy that was developed by the Nanoscale Science, Engineering, and Technology Subcommittee’s Nanotechnology Environmental and Health Implications (NEHI) Working Group. According to the NNI, consistent with the adaptive management process described in the Research Strategy, “the NEHI Working Group has made significant progress through the use of various evaluation tools to understand the current status of nanotechnology-related EHS (nanoEHS) research and the Federal nanoEHS research investment.” NNI states: “Most notably, the participating agencies reported to the NEHI Working Group examples of ongoing, completed, and anticipated EHS research (from FY 2009 through FY 2012) relevant to implementation of the 2011 NNI EHS Research Strategy.” Overall, according to NNI, coordination and implementation of the 2011 NNI EHS Strategy across the NEHI agencies has enabled:

  • Development of comprehensive measurement tools that consider the full life cycles of engineered nanomaterials (ENM) in various media;
  • Collection of exposure assessment data and resources to inform workplace exposure control strategies for key classes of ENMs;
  • Enhanced understanding of the modes of interaction between ENMs and physiological systems relevant to human biology;
  • Improved assessment of transport and transformations of ENMs in various environmental media, biological systems, and over full life cycles;
  • Development of principles for establishing robust risk assessment and risk management practices for ENMs and nanotechnology-enabled products that incorporate ENMs, as well as approaches for identifying, characterizing, and communicating risks to all stakeholders; and
  • Coordination of efforts to enhance data quality, modeling, and simulation capabilities for nanotechnology, towards building a collaborative nanoinformatics infrastructure.

More information is available online.

EC Posts Draft Reports For Impact Assessment On Transparency Measures For Nanomaterials: On June 30, 2014, the European Commission (EC) held a validation workshop to discuss the preliminary results of the study supporting the impact assessment on transparency measures for nanomaterials. As part of the workshop, the EC released the following reports:

  • Study to Assess the Impact of Possible Legislation to Increase Transparency on Nanomaterials on the Market: Evaluation Report (second draft): This report is one of several outcomes of a study on regulatory oversight of nanomaterials within the European Union (EU). To date, the report states, two relevant register-like schemes — both concerning nanomaterials and operating within the EU — have been established: the French Notification System (FNS) and the Cosmetic Products Notification Portal (CPNP). Meanwhile, other transparency measures have been established or proposed by EU Member States. The report is available online.
  • Study to Assess the Impact of Possible Legislation to Increase Transparency on Nanomaterials on the Market: Building Blocks Report (second draft): This report documents the findings of Task 2 (“Background information for building blocks of policy options”) and should complement the information provided in the Evaluation report (based on the findings of Task 1 (“Lessons learned from other schemes”) through the assessment of the FNS and the CPNP. The report is available online.
  • Study to Assess the Impact of Possible Legislation to Increase Transparency on Nanomaterials on the Market: Options Assessment Report (first draft): This report documents the findings of Task 4 (“Support for the option assessment”), namely to identify the key issues that will need to be accounted for under each of the options being considered by the EC before a full impact assessment can be prepared. The report states: “It is important to emphasise that this report is intended to inform future policy development and analysis by the European Commission and is not intended to represent a definitive position of the Commission.” The report is available online.

The EC released a working document in May 2014 as part of its public consultation on transparency measures for nanomaterials in the market, which will end on August 5, 2014. More information on the public consultation is available online.

EC Posts Meeting Materials From Validation Workshop On Transparency Measures For Nanomaterials: The EC has posted materials from its June 30, 2014, validation workshop to discuss the preliminary results of the study supporting the impact assessment on transparency measures for nanomaterials. The EC is conducting a study to evaluate existing notification systems for nanomaterials and to collect data in support of the assessment of different policy options. The EC discussed the preliminary results with stakeholders at the validation workshop and invited their input on the study and the related impact assessment. The validation materials include:

  • Agenda;
  • Introduction to the EU legislative framework for nanomaterials and the study on transparency measures for nanomaterials;
  • Evaluation of existing nanomaterial notification systems;
  • Hazards and risks of nanomaterials and potential benefits of transparency measures;
  • Nanomaterials markets (value chain characterization, growth, and innovation) and potential impacts of the transparency measures; and
  • Outlook to the assessment of policy options.

The materials are available online.

EPA Promulgates Snurs For Two CNT Substances: On July 8, 2014, EPA promulgated SNURs under TSCA for 13 chemical substances that were the subject of PMNs. 79 Fed. Reg. 38464. The rule includes two PMN substances, P-10-5 and P-11-339, that were the subject of TSCA Section 5(e) consent orders and whose reported chemical names include the term “carbon nanotube” or “CNT.” EPA states that, because of a lack of established nomenclature for CNTs, the TSCA Inventory names for CNTs are currently in generic form, e.g., CNT, multi-walled carbon nanotube (MWCNT), double-walled carbon nanotube (DWCNT), or single-walled carbon nanotube (SWCNT).

PMN Number P-10-5
Chemical Name: Single-walled carbon nanotubes (generic)
CAS Number: Claimed confidential

The PMN states that the uses of the substance will be as a component for a conductive coating using the PMN substance in a dispersion or ink, and as an additive in resins/thermoplastics/elastomers for mechanical reinforcement. The consent order requires:

  1. Use of personal protective equipment (PPE);
  2. Use of the substance only as a component for a conductive coating using the PMN substance in a dispersion or ink or as an additive in resins/thermoplastics/elastomers for mechanical reinforcement;
  3. Manufacture of the substance at a volume not to exceed a confidential volume specified in the consent order unless the company has submitted the results of certain health studies and physical/chemical properties data; and
  4. No surface water releases of the PMN substance, except for limited water releases resulting in no more than one part per billion (ppb) waste water effluent concentration determined by monitoring. The company shall analyze the concentration of the PMN substance in waste water discharged to the city sewer from the facility every year and adhere to the monitoring procedure referenced in the consent order.

The SNUR designates as a “significant new use” the absence of these protective measures.

PMN Number P-11-339
Chemical Name: Multi-walled carbon nanotubes (generic)
CAS Number: Claimed confidential

The PMN states that the use of the substance will be as an additive in resins, thermoplastics, and elastomers for mechanical reinforcement and enhanced electrical performance, as a coating on metallic foils for battery applications, or in the manufacture of fabric composites. The consent order requires:

  1. Use of PPE;
  2. Use of the substance only as an additive in resins, thermoplastics, and elastomers for mechanical reinforcement and enhanced electrical performance, as a coating on metallic foils for battery applications, or in the manufacture of fabric composites;
  3. Manufacture of the substance at a volume not to exceed a confidential volume specified in the consent order unless the company has submitted the results of certain health studies and physical/chemical properties data; and
  4. No surface water releases of the PMN substance, except for limited water releases resulting in no more than one ppb waste water effluent concentration determined by monitoring. The company shall analyze the concentration of the PMN substance in waste water discharged to the city sewer from the facility every year and adhere to the monitoring procedure referenced in the consent order.

The SNUR designates as a “significant new use” the absence of these protective measures.

The SNURs are effective on September 8, 2014. Written adverse or critical comments or notice of intent to submit adverse or critical comments, on one or more of these SNURs is due August 7, 2014. If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs, EPA will withdraw the relevant sections of the direct final rule before its effective date.

Canada Endorses OECD Recommendation On Nanomaterials: The Summer 2014 issue of Canada’s Chemicals Management Plan Progress Report includes an item concerning nanomaterials. According to the article entitled “Canada Working on Nanomaterials at Home and Abroad,” Canada has endorsed a recommendation from the Organization for Economic Cooperation and Development (OECD) that its Member Countries apply existing regulatory frameworks to manage risks associated with manufactured nanomaterials. The article also states that the Canada-U.S. Regulatory Cooperation Council (RCC) Nanotechnology Initiative is complete and that the final reports will be published this summer. According to the article, the reports will include recommendations on how Canada and the U.S. can align their nanomaterial regulatory work, including the application of consistent risk assessment approaches and methodologies and identifying categories of nanomaterials. The article is available online.

Silver Nanotechnology Working Group Welcomes New Members: The Silver Nanotechnology Working Group (SNWG) was founded in 2009 as an industry-wide effort to advance the science and public understanding of the beneficial uses of silver nanoparticles in a wide-range of consumer and industrial products. It does this by fostering the collection of environmental, occupational and health, and consumer product data on silver nanotechnology. Since its founding, the focus of the SNWG has been to encourage EPA and other global regulators towards a clear, responsible, and reasonable regulatory path for nanoscale silver additives in a wide variety of products. The SNWG with the help of its members, consultants, and the Silver Institute will continue to do everything possible to reach this goal as soon as possible. Membership in the SNWG is open to any entity with nanosilver interests that wishes to be updated frequently on nanosilver policy issues and be involved with influencing nanosilver regulatory policy. More information is available on the SNWG website and by contacting Rosalind Volpe, D.PH at for membership details.


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


U.S. Court Of Appeals Vacates Two RCRA Hazardous Waste Exclusions: In separate opinions issued on June 27, 2014, the U.S. Court of Appeals for the D.C. Circuit vacated two hazardous waste recycling exclusions under the Resource Conservation and Recovery Act (RCRA) regulations. In Natural Resources Defense Council and Sierra Club v. EPA (Case No. 98-1379), the court vacated the Comparable Fuels Exclusion codified at 40 C.F.R. Sections 261.4(a)(16) and 261.38. The court held that the exclusion “is inconsistent with the plain language [of RCRA], which requires that EPA establish standards applicable to all fuel derived from hazardous waste.” (Emphasis in original.) In Sierra Club and Louisiana Environmental Action Network v. EPA (Case No. 08-1144), the court vacated the so-called “syngas exclusion” at 40 C.F.R. Section 261.4(a)(12)(i), similarly ruling that “the regulation violates the plain language of RCRA.”

EPA Proposes To Amend CERCLA “All Appropriate Inquiries Rule”: On June 17, 2014, EPA proposed to amend the All Appropriate Inquiries Rule at 40 C.F.R. Part 312 to remove the reference to ASTM International’s E1527-05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” 79 Fed. Reg. 34480. The Small Business Liability Relief and Brownfields Revitalization Act, signed into law by President George W. Bush in 2002, amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to require EPA to promulgate regulations establishing standards and practices for conducting “All Appropriate Inquiries,” which is the process by which a party acquiring real property evaluates a site’s environmental conditions and potential for contamination. Parties must follow these standards and practices to qualify for certain defenses from liability under CERCLA if a subsequent dispute arises concerning historical contamination at the site. Under the existing regulations, the All Appropriate Inquiries investigation may be based on either the prior 2005 site assessment standard published by ASTM International or on the newer standard published by ASTM International in 2013. The June 17 proposed rule would eliminate the use of the 2005 standard. In November 2013, ASTM International designated this standard as an “historical standard” and replaced it with the updated ASTM E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The proposed rule would not prevent parties from continuing to use other standards, methods, or customary business practices for conducting all appropriate inquiries, so long as they comply with the standards and procedures set forth in the All Appropriate Inquiries Rule at 40 C.F.R. Part 312. Instead, EPA is proposing to delete the reference to a standard that ASTM International no longer recognizes as current and that it no longer represents as reflecting its current consensus-based standard. EPA is proposing this action because it wishes to reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its own promulgating organization as meeting its standards for good customary business practice. For properties acquired between November 1, 2005, and the effective date of this proposed action, should EPA issue it in final, the 2005 ASTM standard (ASTM E1527-05) complies with the All Appropriate Inquiries Rule as it was in effect at the time the property was acquired. EPA’s proposed action includes no proposed changes to the All Appropriate Inquiries Rule other than to remove a reference to the historical ASTM E1527-05 standard. It does not impact the reference to the recently revised ASTM standard, E1527-13, in the All Appropriate Inquiries Rule. Comment is due by July 17, 2014.

EPA Issues Final RCRA Rule Strengthening Standards For Exports Of Cathode Ray Tubes: On June 26, 2014, EPA issued a final rule under RCRA strengthening the standards for cathode ray tubes (CRT) exported for reclamation. 79 Fed. Reg. 36220. EPA believes that these changes will allow it to obtain additional information to track better exports of CRTs for reuse and recycling so as to ensure the safe management of CRTs. The rule makes four broad changes: (1) it adds a definition of “CRT exporter” to eliminate potential confusion over which parties are required to fulfill CRT export duties; (2) it requires information on all interim and final destinations for CRTs exported for recycling to provide more complete information to receiving countries; (3) CRT exporters are, for the first time, required to file annual reports with EPA to provide more accurate information on the total quantity of CRTs exported for recycling during a calendar year; and (4) the rule replaces the one-time notice for used CRTs exported for reuse with an expanded, periodic notice to improve tracking, and thus better management, of these CRTs. The revised standards take effect on December 26, 2014.

Almost 200 Public Interest Groups Urge President Obama To Revise RCRA Definition Of Solid Waste Rule: On June 26, 2014, a group of 195 environmental and public interest organizations sent a letter to President Obama urging him to issue the definition of solid waste (DSW) rule currently being reviewed at the White House Office of Management and Budget (OMB) and to ensure that the rule revokes the exemptions EPA issued in a 2008 final rule revising the DSW. By way of background, in 2008 EPA issued a final rule revising the DSW by exempting several hazardous waste recycling activities. 73 Fed. Reg. 64669 (Oct. 30, 2008). In 2011, however, EPA issued a proposed rule essentially revoking most of those exemptions and requiring recyclers of hazardous waste to meet several “legitimacy criteria” to avoid “sham reycling.” 76 Fed. Reg. 44094 (July 22, 2011). OMB is currently reviewing a rule that would promulgate the 2011 rule in final.


Congressional California Democrats Urge DOT To Tighten Regulations On Transport Of Crude Oil By Rail: On July 1, 2014, four Democratic House of Representatives members of the California Congressional Delegation sent a letter to Secretary of Transportation Anthony Foxx expressing strong concern over the increased shipments of crude oil by rail in their districts, and calling for action to increase safety. Doris Matsui took the lead in the group and was joined by George Miller, Mike Thompson, and John Garamendi. They praised the U.S. Department of Transportation (DOT) for the actions it has taken thus far in response to the spate of recent incidents involving the transportation of crude oil by rail. Specifically, the letter calls on the DOT to take four actions:

  • Report on the level of compliance by the railroad and petroleum industries with DOT’s May 7, 2014, Emergency Order that requires certain rail carriers transporting crude oil to share information on their operations with State Emergency Response Commissions (SERC);
  • Issue a rulemaking that requires stripping out the most volatile elements, i.e., flammable natural gas liquids (NGL), from Bakken crude before it is loaded onto rail cars;
  • Expedite the issuance of a final rulemaking to require the full implementation of Positive Train Control (PTC) technology for all railroads transporting lighter crude and provide a status report on the progress of PTC implementation to date; and
  • Expedite the issuance of a rulemaking that requires phasing out old rail cars for newer, retrofitted cars.


ECHA Adds New SVHCs: On June 16, 2014, the European Chemicals Agency (ECHA) added four chemicals to the candidate list of substances of very high concern (SVHC). As a result, these substances could be prioritized for restrictions under the EU’s Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation. The substances are: 1,2-benzenedicarboxylic acid, dihexyl ester, branched and linear; cadmium chloride; sodium perborate; and sodium peroxometaborate. The SVHC list now contains 155 chemical substances. The updated ECHA SVHC list is available online.


Former Republican EPA Administrators Endorse EPA Clean Power Plan Rule During Senate Committee Hearing: During a June 18, 2014, hearing before the Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety, four former EPA Administrators — all of whom were appointed by Republican Presidents — endorsed EPA’s proposed Clean Power Plan rule. Testifying at the hearing were William D. Ruckelshaus, EPA Administrator under Richard Nixon; Christine Todd Whitman, EPA Administrator under George W. Bush; William K. Reilly, who headed EPA under George H.W. Bush; and Lee M. Thomas, EPA head under Ronald Reagan. Also testifying at the hearing were Dr. Daniel Botkin, Professor Emeritus of Biology, University of California, Santa Barbara; Luther Strange, Alabama Attorney General; and Dr. Joseph Mason, the Wharton School. The witness testimonies, along with a webcast of the hearing and the opening statements of Senators Barbara Boxer (D-CA) and Sheldon Whitehouse (D-RI), are available online. The quartet spoke in unison that EPA is justified in moving to cut power plant emissions, given the lack of Congressional action on climate change. Not all of the witnesses were as sanguine about the rule. Alabama Attorney General Luther Strange stated his state vigorously opposes the EPA proposals, which he stated were an attempt to restructure the power sector and would have disastrous consequences for the reliability of electricity.

Senate Committee Approves Bill Authorizing Keystone Pipeline: On June 18, 2014, the Senate Energy and Natural Resources Committee approved a bill authorizing the so-called Keystone pipeline. The Committee adopted by a bipartisan 12-10 vote legislation to approve the TransCanada Corporation’s construction of the pipeline. The text of the bill from Senator Mary Landrieu (D-LA) is virtually identical to S. 2280 and is cosponsored by 55 additional members of the Senate. The bill is already pending on the Senate calendar. The next step in the process is for a bill on Keystone XL to be brought up on the floor for consideration by the full Senate. Shortly after passage of the bill, Senator Lisa Murkowski (R-AK) urged Senate Majority Leader Harry Reid (R-NV) to bring to the floor legislation.

Senators Introduce Bill To Increase Safety Resources For Short Line Railroads: On June 17, 2014, Senators Patty Murray (D-WA) and Susan Collins (R-ME), Chair and Ranking Member of the Senate Appropriations Subcommittee for Transportation, respectively, introduced a bill that would authorize a new Short Line Rail Safety Institute to enhance the safety practices and culture of short line railroads. There are 550 short line railroad companies that operate over 50,000 miles of track, or nearly one-third of the national railroad network. The tracks can be as short as two miles or up to more than 1,000 miles long. The legislation introduced by Senators Collins and Murray would authorize funding to support grants for research, development, evaluation, and training efforts. The new Short Line Rail Safety Institute would: assess the operations and safety programs of short line railroads; develop best practices and work with short lines to implement these practices; provide professional on-site safety training for short line employees; purchase and utilize safety training assets (such as locomotive simulators); assist the Federal Railroad Administration (FRA) in implementing its railroad research and development and outreach programs, and tailor such programs for short line railroad operations; and help improve safety culture, including a reduction in the frequency and severity of injuries and incidents, as well as improved compliance with regulatory requirements.

Pallone Introduces Legislation To Ban Plastic Microbeads In Cosmetics: Representative Frank Pallone, Jr. (D-NJ) on June 18, 2014, introduced a bill (H.R. 4895) that would prohibit the sale or distribution of personal care products that contain synthetic plastic microbeads. Microbeads are small bits of plastic commonly used as exfoliants in personal care products like face wash, soap, and toothpaste. According to Pallone, these microbeads can slip through water treatment systems after they are washed down the drain. As a result, these microbeads often end up in local streams, rivers, and larger bodies of water, he stated. The bill would ban the sale or distribution of cosmetic products containing plastic microbeads effective January 1, 2018. Recently, the State of Illinois passed a law banning the sale of products containing plastic microbeads by the end of 2017, and a number of other states are considering similar bans. Natural alternatives to plastic microbeads already exist in the market.

House Subcommittee Holds Hearing On Clean Water Act Interpretive Rule: The House Agriculture Subcommittee on Conservation, Energy, Forestry on June 19, 2014, held a hearing on a review of the interpretive rule regarding the applicability of Clean Water Act (CWA) agricultural exemptions. Testimony was heard from Robert Bonnie, Under Secretary, Natural Resources and Environment, U.S. Department of Agriculture (USDA); Don Parrish, Senior Director, Regulatory Relations, American Farm Bureau Federation; Andy Fabin, Producer, Fabin Bros. Farms, Indiana, Pennsylvania (on behalf of the National Cattlemen’s Beef Association); Chip Bowling, First Vice President, National Corn Growers Association; and Scott Kovarovics, Executive Director, Izaak Walton League of America. Witness testimony is available online.

Senators Introduce Bill To Block EPA From Issuing Final “Waters Of The U.S.” Rule: On June 19, 2014, Senators John Barrasso (R-WY), David Vitter (R-LA), Mike Enzi (R-WY), Pat Roberts (R-KS), Roy Blunt (R-MO), Mike Johanns (R-NE), Ted Cruz (R-TX), and 23 other Senators introduced legislation to stop EPA from issuing its March 2014 “Waters of the U.S.” proposed rule. The Protecting Water and Property Rights Act of 2014 (S. 2496) would prevent EPA from issuing in final the proposed rule. It also would prevent EPA from using the proposed rule or any substantially similar rule or guidance document in any other rulemaking or regulatory decision.

House Passes Bill Reauthorizing Chemical Facility Anti-Terrorism Standards (CFATS): The House of Representatives on July 8, 2014, passed by voice vote H.R. 4007, legislation that reestablishes the Chemical Facility Anti-Terrorism Standards (CFATS) program. Under CFATS, the Secretary of Homeland Security is required to: establish risk-based performance standards designed to protect covered chemical facilities from acts of terrorism; require such facilities to submit security vulnerability assessments and develop and implement site security plans; review and approve or disapprove each such assessment and plan; arrange for the audit and inspection of covered chemical facilities to determine compliance with this Act; and notify, and issue an order to comply to, the owner or operator of a facility not in compliance. The legislation is based upon feedback and information the House Homeland Security Committee and the House Committee on Energy and Commerce received through meetings with industry stakeholders, the regulated community, first responders, union representatives, the Senate Homeland Security and Government Affairs Committee, and the Department of Homeland Security (DHS) itself. Supporters of H.R. 4007 believe the bill improves the CFATS program by greatly improving coordination and communication between DHS and the owners and operators of chemical facilities. They also claim that the bill will enhance information sharing with first responders and that it creates a more workable employee-screening methodology that allows facility owners and operators to implement procedures that ensure maximum security. The bill also expands the scope of the CFATS program to ensure that there are no “outlier” chemical facilities that remain unknown to and unregulated by DHS.

House Science Panel Approves Secret Science Reform Act: The House Science, Space and Technology Committee on June 24, 2014, passed legislation that would require EPA to release to the public all scientific data it relies upon to develop regulations. The Secret Science Reform Act (H.R. 4012) would amend the Environmental Research, Development, and Demonstration Authorization Act of 1978 to prohibit EPA from proposing, finalizing, or disseminating a covered action unless all scientific and technical information relied on to support such action is specifically identified and publicly available in a manner sufficient for independent analysis and substantial reproduction of research results. The bill defines “covered action” as “a risk, exposure, or hazard assessment, criteria document, standard, limitation, regulation, regulatory impact analysis, or guidance.” The 17-13 vote was on party lines. Introduced by House Science Panel Environment Subcommittee Chair Dave Schweikert (R-AZ), the bill is the GOP response to claims that EPA fails to disclose “secret” science EPA used to promulgate regulations under the CAA.

Senator Flake Introduces Trio Of Bills Aimed At Limiting EPA Authorities Under The CAA: Senator Jeff Flake (R-AZ) introduced a trio of bills seeking to limit EPA’s authorities under the CAA. The first bill (S. 2514) would prevent EPA from promulgating a final revised national ambient air quality standard (NAAQS) for ozone until 2018. The Ozone Regulatory Delay and Extension of Assessment Length Act, introduced on June 24, 2014, would change from five years to ten years EPA’s timeline for reviewing and revising NAAQS. Flake stated that extending the time period would provide industry with regulatory certainty because businesses would not have to worry about a possible change to the NAAQS every five years. EPA is under a court-ordered deadline of December 1, 2014, to propose to retain or revise the existing ozone standard and must issue a final rule by October, 1, 2015. Representative Matt Salmon (R-AZ) introduced companion legislation (H.R. 4947) in the House. On June 25, 2014, Flake introduced a bill that would prevent EPA from seeking penalties under the CAA from states and local government sources that exceed CAA limits due to dust storms or other natural events. The Commonsense Legislative Exceptional Events Reform (CLEER) Act (S. 2526) would streamline EPA regulations intended to ensure that states and localities are not considered in violation of federal air quality standards due to uncontrollable, naturally occurring events — otherwise known as “exceptional events” — such as dust storms and wildfires. Representative Pete Olson (R-TX) introduced companion legislation in the House. According to Flake, S. 2526 has broad support from the business industry, including the U.S. Chamber of Commerce, American Farm Bureau Federation, National Sand, Stone & Gravel Association, Public Lands Council, National Cattlemen’s Beef Association, Arizona Chamber of Commerce, Arizona Rock Products Association, Arizona Farm Bureau, Arizona Cattlemen’s Association, Arizona Cattle Feeders’ Association, Agri-Business Council of Arizona, Home Builders Association of Central Arizona, Southern Arizona Home Builders Association, and the American Petroleum Institute. On June 26, 2014, Flake capped off his trio of bills by introducing the Agency PAYGO for Greenhouse Gases Act (S. 2533), which would limit EPA’s ability to impose the costs of GHG rules on other federal agencies without first providing an offset. Similar to the Senate pay-as-you-go rule known as PAYGO, the Agency PAYGO for Greenhouse Gases Act would require EPA to offset the federal cost of any GHG rules through equivalent reductions in the EPA budget. EPA would not be required to offset costs if it instead receives Congressional approval for a given GHG rule. The bill would also prohibit EPA from passing the federal costs of a GHG rule onto consumers of federal power generating agencies such as the Tennessee Valley Authority, Bonneville Power Administration, Western Area Power Authority, or the Bureau of Reclamation.

Senators Murphy And Collins Introduce Bipartisan Super Pollutants Act Of 2014: On June 26, 2014, Senators Chris Murphy (D-CT) and Susan Collins (R-ME) introduced the Super Pollutants Act of 2014. The aim of the bipartisan legislation is to address short-lived climate pollutants (SLCP). These SLCPs, referred to as “super pollutants,” are non-carbon dioxide greenhouse pollutants that cause 40 percent of global warming. SLCPs range from methane that is leaked by landfills and oil and gas exploration, to refrigerants leaking from refrigerators and air conditioners, to soot from diesel engines and millions of traditional cookstoves. In a written statement, Murphy stated that studies show that “fast action to reduce SLCPs in the atmosphere could cut the rate of sea level rise by 25 percent, almost halve the rate of temperature rise, prevent two million premature deaths each year, and avoid crop losses of over 30 million tons annually.” The proposed legislation will help reduce SLCPs in the atmosphere by taking a number of steps to enable federal agencies to work with the business and non-profit communities to speed the adoption of SLCP-reducing technologies and policies. The bill seeks to foster interagency cooperation on super pollutants; prioritize commonsense emissions reduction strategies, and employ existing federal authorities and diplomatic programs; recycle high-GWP refrigerants; mitigate methane leaks; and expand access to diesel-scrubbing technologies.

House Passes Bill Expanding Offshore Drilling And Expediting Permitting For Drilling On Federal Lands: The House of Representatives on June 26, 2014, passed H.R. 4899, legislation that would expand offshore oil and gas exploration and also expedite the permitting process for drilling on federal lands. The bill, the Lowering Gasoline Prices to Fuel an America That Works Act of 2014, is an amalgam of several bills that had been separately introduced. It would require the U.S. Department of the Interior (DOI) to make available at least 50 percent of available unleased offshore acreage in each planning area considered to have the largest oil and gas potential and to establish programs to meet a goal of increasing offshore oil production by three million barrels per day and natural gas by 10 billion cubic feet per day by 2032. The legislation also would direct DOI to approve a new five-year offshore leasing program that incorporates new areas of production by July 15, 2016.

Bills To Clarify State Statutes Of Repose Under CERCLA Introduced In Both Houses: Senator Kay Hagan (D-NC) and Representative G.K. Butterfield (D-NC) introduced legislation in the Senate and House that they claim “will protect the ability of North Carolinians harmed by toxic chemicals to seek legal recourse, including Marines harmed by contaminated drinking water at Camp Lejeune and families exposed to toxic chemicals at the CTS superfund site near Asheville.” A recent Supreme Court ruling addressed the legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from contaminated sites. In the case, CTS Corp. v. Waldburger (June 9, 2014), the Court considered whether CERCLA Section 309, which preempts a state “statute of limitations,” also preempts a state statute of repose. In a 7-2 decision, the Court held it does not, meaning that parties that potentially contaminated sites in the past may not always be held liable for personal injury and property damage allegedly caused by that contamination. Hagan and Butterfield believe that the case could prevent individuals and families from pursuing legal recourse, so the legislation clarifies that federal law preempts state laws that limit the timeframe in which damages could be recovered for injuries and diseases that often do not appear for decades after toxic exposure.

Senate Confirms New Director Of OMB: On July 10, 2014, the Senate confirmed Shaun Donovan as the new Director of OMB. Donovan previously was the Secretary of the Department of Housing and Urban Development. He replaces Sylvia Mathews Burwell, who left OMB to head the Department of Health and Human Services. The Senate voted 75-22 to confirm Donovan.

House Bill Would Prohibit EPA, Corps From Promulgating “Waters of the U.S.” Rule: Legislation introduced in the House on July 11, 2014, would block EPA and the U.S. Army Corps of Engineers (Corps) from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the so-called “Waters of the U.S.” proposed rule or any associated guidance that attempts to clarify the scope of the CWA. Introduced by Representatives Bob Gibbs (R-OH), Bill Shuster (R-PA), and Steve Southerland (R-FL), the Waters of the United States Regulatory Overreach Protection Act (H.R. 5078) would require the agencies to write a proposed rule jointly with state and local officials based on consensus recommendations, which would be subject to public review. The bill also would block the interpretive rule, which the federal agencies issued along with the proposed CWA jurisdiction rule. The interpretive rule attempts to clarify the agricultural practices that would be exempt from CWA dredge-and-fill permits.

House Bill Seeks To Reverse Court Decision On CWA Section 404 Permits: Representative Shelley Capito (R-WV) on July 11, 2014, introduced a bill that seeks to overturn a July 11, 2014, U.S. Court of Appeals decision upholding EPA’s and the Corps’ process for streamlining dredge and fill permits under CWA Section 404. The Coal Jobs Protection Act of 2014 (H.R. 5077) would create clear deadlines on permitting decisions and require EPA and the Corps to make regulatory decisions transparently. She introduced the legislation in response to the D.C. Circuit Court of Appeals’ decision in National Mining Association v. EPA (Case No. 12-5310). In June 2009, the Corps and EPA adopted an Enhanced Coordination Process to facilitate their consideration of certain CWA permits. The Enhanced Coordination Process allows EPA to screen Section 404 mining permit applications submitted to the Corps. EPA then initiates discussions with the Corps on proposed mining projects that EPA considers likely to damage water bodies. In 2011, EPA also promulgated a Final Guidance document relating to those CWA permits. Among other things, the Final Guidance recommends that states impose more stringent conditions for issuing permits under Section 402. The States of West Virginia and later Kentucky, along with coal mining companies and trade associations, challenged the Enhanced Coordination Process and EPA’s Final Guidance before the District Court as exceeding EPA’s authority under the Surface Mining Control and Reclamation Act and the CWA. The District Court agreed and granted summary judgment for plaintiffs. The Court of Appeals ruled, however, that EPA and the Corps acted within their statutory authority when they adopted the Enhanced Coordination Process and reversed the District Court’s grant of summary judgment to plaintiffs.

House Passes Water Resources Development Act; White House Promises Veto: The House of Representatives on July 10, 2014, by a 253-170 vote, passed the Water Resources Development Act (WRDA). The bill (H.R. 4923) makes appropriations for energy and water development and related agencies for fiscal year (FY) 2015. The Obama Administration has issued a veto threat, stating that it strongly opposes H.R. 4923 as it “significantly underfunds critical investments that develop American energy sources to build a clean and secure energy future, support the emerging clean energy technologies that create high-quality jobs, and enhance the Nation’s economic competiveness.” The legislation also excessively restricts nonproliferation contracts with Russia and prevents the development of lower cost technologies for disposal of excess plutonium, the White House stated, adding that the bill includes objectionable environmental riders that would prevent the use of funds to address known deficiencies and regulatory uncertainties related to CWA regulations.

House Appropriations Committee Releases FY 2015 EPA Funding Bill: On July 8, 2014, the House Appropriations Committee released the FY 2015 Interior and Environment appropriations bill, which includes funding for DOI, EPA, the Forest Service, the Indian Health Service, and various independent and related agencies. In total, the bill includes $30.2 billion in base funding, an increase of $162 million above the FY 2014 enacted level and a reduction of $409 million below the President’s request. The bill funds EPA at $7.5 billion, a reduction of $717 million — or 9 percent — below the FY 2014 enacted level. Administrative funding for EPA is cut by $24 million, including a 50 percent reduction to the Office of the Administrator, the Office of Congressional Affairs, and the Office of the Chief Financial Officer. In addition, staffing levels at EPA are held to 15,000, which would be the lowest level since 1989. The legislation also includes provisions to block controversial EPA regulations, including its proposed GHG regulations for new and existing power plants, changes to the definition of “navigable waters” under the CWA, and changes to the definition of “fill material.”

House Subcommittee Holds Hearing On “Constitutional Considerations: States vs. Federal Environmental Policy Implementation”: The House Energy and Commerce Subcommittee on Environment and the Economy on July 11, 2014, held a hearing entitled “Constitutional Considerations: States vs. Federal Environmental Policy Implementation.” The hearing focused on the authority the Commerce Clause of the Constitution grants Congress to set uniform, national standards in certain aspects of environmental policy and the role of the states in taking the lead in crafting state-specific environment solutions. Testifying at the hearing were:

  • Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western University School of Law;
  • Robert Meltz, American Law Division, Congressional Research Service (CRS);
  • Richard L. Revesz, Lawrence King Professor of Law, Dean Emeritus, New York University School of Law; and
  • Rena Steinzor, Professor, University of Maryland School of Law, President, Center for Progressive Reform.

In addition to the scope of the Commerce Clause, the hearing examined how the Tenth Amendment limits Congress’s authority to place mandates on the states to implement environmental policy and related issues. A webinar of the hearing and the witness testimony are available online.

Stop The EPA Act Introduced In House: On July 9, 2014, Representative Sam Graves (R-MO) introduced the Stop the EPA Act of 2014 (H.R. 5034). Graves chairs the House Small Business Committee. The bill would amend the Congressional Review Act of 1996 to require EPA rules that have significant impacts on the economy to be approved by Congress before they can take effect. It also would put an immediate hold on all pending EPA rules until an economic impact assessment of all existing regulations is completed. The bill is the latest salvo of anti-EPA legislation that has been introduced by GOP members and targeting EPA regulations, most prominently the proposed Clean Power Plan.


FTC Settles Green Claims Case: On June 19, 2014, the Federal Trade Commission (FTC) announced a settlement with American Plastic Lumber, Inc. (APL). FTC alleged the company was making misleading and unsubstantiated environmental benefit claims in violation of Section 5 of the FTC Act about their plastic lumber products. The company advertises, sells, and distributes plastic lumber products — including picnic tables, benches, trash receptacles, wheel stops, and speed bumps — to consumers and businesses in the construction industry. FTC alleged that from 2011 through June 2013, “APL’s advertisements and marketing materials implied that its products — and the recycled plastics they contain — were made virtually all out of post-consumer recycled content such as milk jugs and detergent bottles.” FTC claims, however, that these claims are deceptive and misleading because “in reality the products contained less than 79 percent post-consumer content, on average.” FTC also claims approximately 8 percent of APL’s products “contained no post-consumer recycled content at all” and that nearly 7 percent of the products “were made with only 15 percent post-consumer content.” Under the proposed consent order, APL would be barred from making deceptive claims regarding environmental benefits for any product or package and making representations about the recycled content, post-consumer recycled content, or any other environmental benefit of its products or packaging unless they are true, accurate, and can be substantiated by competent and reliable evidence. The FTC will publish a description of the consent agreement package in the Federal Register. Comments should be submitted by July 21, 2014. The draft complaint is available online. The proposed consent order is available online. The analysis of the proposed settlement is available online.

EC Outlines Regulatory Approach On Endocrine Disruptors: On June 17, 2014, the EC released the “endocrine disruptors roadmap,” in the form of a document entitled Defining Criteria for Identifying Endocrine Disruptors in the Context of the Implementation of the Plant Product Regulation and Biocidal Products Regulation. A public consultation is expected to begin later this year. According to the roadmap document, the EU could adopt the World Health Organization International Programme on Chemical Safety (WHO/IPCS) definition of endocrine disruptors , or could adopt a modified version of the WHO/IPCS definition. Depending on the final form of the criteria, the number of substances identified as endocrine disruptors might be different under different EU legislation. This is because decision making under the Plant Protection Products Regulation and the Biocidal Product Regulation is based on identifying the hazards of substances, whereas under other laws, including REACH, risk management measures and the socioeconomic impact of regulatory decisions are taken into account, stated the roadmap. The EC roadmap is available online.

SASB Issues Guidelines For Reporting On Sustainability Issues To SEC: On June 25, 2014, the Sustainability Account Standards Board (SASB) released voluntary guidelines for assisting companies on how climate change regulations and other sustainability issues could affect their value in filing annual reports with the Securities and Exchange Commission (SEC). The standards identify environmental and social issues that could have a material impact on shareholder value for companies in the non-renewable resources sector, which includes oil and gas, coal operations, metals and mining, iron and steel, and construction materials. SASB is a nonprofit organization that has been developing standards for improving environmental, social, and governance (ESG) disclosure in mandatory SEC filings, including annual 10-K reports, by publicly listed companies in ten sectors. The nonrenewable resources sector is the fourth set of industry standards to be released. More information on SASB’s standards for the non-renewable resources sector is available online.

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