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June 1, 2013

Monthly Update for June 2013

Bergeson & Campbell, P.C.


EPA Hosts SFIREG Meeting: On June 10-11, 2013, the Association of American Pesticide Control Officials (AAPCO)/State FIFRA Issues Research and Evaluation Group (SFIREG) Full Committee held a meeting at the U.S. Environmental Protection Agency’s (EPA) offices in Crystal City, Virginia. Handouts are available upon request from Chad Howlin.  During the meeting, there was considerable discussion regarding domestic and international pollinator protection efforts and guidance. Participants also discussed how to implement and enforce risk mitigation measures that require actions by parties in the chain of commerce after registered product applicators/users. Discussions reprised state concerns about products that claim to meet Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 25(b) criteria but do not and state efforts to coordinate denying state registration of these products. According to the presentation, EPA is refining but continuing to pursue supplemental distributor violations as an enforcement priority. Finally, the Office of Pesticide Programs (OPP) is exploring codifying certain insecticide product performance requirements in its regulations, rather than relying on the published test guidelines, reportedly to increase specificity and consistency in submitted supporting data.

EPA Proposes Formaldehyde Rules: On June 10, 2013, EPA proposed two rules designed to protect the public from the risks associated with exposure of formaldehyde. The first proposal would implement formaldehyde emission standards under Title VI of the Toxic Substances Control Act (TSCA), and would apply to hardwood plywood, medium-density fiberboard, particleboard, and finished goods containing these products that are sold, supplied, offered for sale, or manufactured (including imported) in the United States. 78 Fed. Reg. 34820. The second proposal would establish a framework for a third-party certification program to ensure that composite wood panel producers comply with the formaldehyde emission limits established under TSCA Title VI. 78 Fed. Reg. 34796. Comments on the proposed rules are due by August 9, 2013.

Wal-Mart Settles Civil And Criminal Violations: On May 28, 2013, Wal-Mart Stores Inc. settled allegations filed by federal prosecutors to six counts of violating the Clean Water Act (CWA) by illegally handling and disposing of hazardous materials at its retail stores across the United States. Wal-Mart also pleaded guilty in Kansas City, Missouri, to violating FIFRA by failing to handle pesticides properly that had been returned by customers. As a result of these allegations and a related civil case filed by EPA, Wal-Mart will pay approximately $81.6 million. Coupled with previous actions brought by the States of California and Missouri for the same conduct, Wal-Mart will pay a combined total of more than $110 million to resolve cases alleging violations of federal and state environmental laws. More information about the case is available online.

EPA Announces Peer Review Meetings On Trichloroethylene Risk Assessment: On June 7, 2013, EPA announced that its contractor, The Scientific Consulting Group, Inc. (SCG), has identified a panel of scientific experts to conduct a peer review of EPA’s assessment, TSCA Workplan Chemical Risk Assessment for Trichloroethylene: Degreaser and Arts/Crafts Uses. 78 Fed. Reg. 34377. EPA will hold three peer review meetings by web connect and teleconference. EPA invites the public to register to attend the meetings as observers and/or speakers providing oral comments during any or all of the peer review meetings. The public may also provide comment on whether they believe the appearance of conflict of interest exists for any proposed peer review panel expert. The peer review meetings will be held on Tuesday, July 9, 2013, from 1:00 p.m. to 4:00 p.m. (EDT); Wednesday, July 17, 2013, from 10:00 a.m. to 6:00 p.m. (EDT); and Wednesday, August 7, 2013, from 1:00 p.m. to 4:00 p.m. (EDT). Written comments and materials and electronic materials must be submitted on or before July 23, 2013. To participate in any of the public peer review meetings, you must register no later than 11:59 p.m. (EDT) on July 6, 2013.

EPA Publishes Final EDSP Policies And Procedures And Final Second List Of Chemicals And Substances For Tier 1 Screening: On June 14, 2013, EPA published a Federal Register notice describing its final policies and procedures for requiring Tier 1 screening under the Endocrine Disruptor Screening Program (EDSP) of chemicals for which EPA may issue EDSP test orders pursuant to Section 1457 of the Safe Drinking Water Act (SDWA) and Section 408(p) of the Federal Food, Drug, and Cosmetic Act (FFDCA). 78 Fed. Reg. 35909. FFDCA Section 408(p) directed EPA to develop a chemical screening program using appropriate validated test systems and other scientifically relevant information (OSRI) to determine whether certain chemicals may have hormonal effects. These final policies and procedures supplement the EDSP policies and procedures that were published in the Federal Register on April 15, 2009. According to EPA, the 2009 policies and procedures were originally developed for screening pesticide chemicals and relied, in part, on a regulatory context that is specific to pesticide chemicals. EPA states that “the presumptions applicable in that context are not necessarily applicable to this larger universe of chemicals,” which include chemicals used in pharmaceuticals and personal-care products, among others. In a separate Federal Register notice, also published June 14, 2013, EPA announced the final second list of 109 chemicals identified for Tier 1 screening under the EDSP. 78 Fed. Reg. 35922. The EDSP consists of a two-tiered approach to screen and test chemicals for potential endocrine disrupting effects. EPA states that the purpose of Tier 1 screening is to identify substances having the potential to interact with the endocrine system. Substances that have the potential to interact with estrogen, androgen or thyroid systems may proceed to Tier 2, which is designed to identify any adverse endocrine-related effects caused by the substance, and establish a quantitative relationship between the dose and that endocrine effect. EPA notes that the second list “should not be construed as a list of known or likely endocrine disruptors.” More information regarding the EDSP is available online.


GAO Issues Report On Chemical Assessments: On May 10, 2013, the Government Accountability Office (GAO) issued a report entitled An Agencywide Strategy May Help EPA Address Unmet Needs for Integrated Risk Information System Assessments. GAO found that EPA has not conducted a recent evaluation of demand for Integrated Risk Information System (IRIS) toxicity assessments with input from users inside and outside EPA. Specifically, EPA issued a needs assessment report in 2003, which estimated that 50 new or updated IRIS toxicity assessments were needed each year to meet users’ needs. GAO did not find, however, sufficient support for the estimate. In addition, IRIS Program officials recognize that the 2003 estimate does not reflect current conditions, but the Agency does not plan to perform another evaluation of demand. Without a clear understanding of current demand for IRIS toxicity assessments, EPA cannot adequately measure the program’s performance; effectively determine the number of IRIS toxicity assessments required to meet the needs of IRIS users; or know the extent of unmet demand. EPA has not implemented an Agencywide strategy for addressing the unmet needs of its program offices and regions when IRIS toxicity assessments are not available, applicable, or current. GAO recommended that EPA evaluate demand for IRIS assessments; document how the Agency applies its selection criteria, including the circumstances under which an IRIS toxicity assessment is or is not needed; and develop an Agencywide strategy, including, at a minimum, coordination across EPA offices, as well as with other federal agencies, to identify and fill data gaps, and providing guidance that describes alternative sources of toxicity information. EPA agreed with the first two recommendations and partially agreed with the third. The report is available online.

United States And China Agree To Phase Down Emissions Of HCFCs: On June 8, 2013, the White House announced that President Obama and President Xi of China have agreed on an important new step to confront global climate change. For the first time, the United States and China will work together and with other countries to use the expertise and institutions of the Montreal Protocol to phase down the consumption and production of hydrofluorocarbons (HFC). The White House estimates that a global phase down of HFCs could potentially reduce some 90 gigatons of CO2 equivalent by 2050, equal to roughly two years’ worth of current global greenhouse gas (GHG) emissions.

The agreement between the United States and China reads as follows:

Regarding HFCs, the United States and China agreed to work together and with other countries through multilateral approaches that include using the expertise and institutions of the Montreal Protocol to phase down the production and consumption of HFCs, while continuing to include HFCs within the scope of UNFCCC and its Kyoto Protocol provisions for accounting and reporting of emissions.

HFCs are potent GHGs used in refrigerators, air conditioners, and industrial applications. While they do not deplete the ozone layer, many are highly potent GHGs. Their use is growing rapidly as replacements for ozone-depleting substances that are being phased out under the Montreal Protocol on Substances that Deplete the Ozone Layer.

EPA Withdraws PM2.5 Implementation Guidance: EPA on June 6, 2013, withdrew its guidance document titled Implementation Guidance for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS), dated March 2, 2012. When EPA issued the guidance in March 2012, it intended to provide recommendations concerning the development of state implementation plans (SIP) to demonstrate attainment with the 2006 24-hour PM2.5 NAAQS. The guidance document addressed multiple topics, including: (i) the overall statutory framework for attainment plans; (ii) basic emissions inventory requirements; (iii) use of seasonal versus annual inventories; (iv) development of on-road mobile source emission inventories; and (v) points of comparison between the guidance recommendations for the 2006 PM2.5 NAAQS and the regulatory requirements for the 1997 PM2.5 NAAQS. A core premise of the guidance was EPA’s intention to implement the 2006 PM2.5 NAAQS pursuant solely to the statutory requirements of subpart 1 of Part D of Title I of the Clean Air Act (CAA), comparable to EPA’s regulatory approach to implementation of the 1997 PM2.5 NAAQS.

On January 4, 2013, however, the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit held that EPA incorrectly interpreted the CAA with respect to statutory requirements for the implementation of the 1997 PM2.5 NAAQS. In Natural Resources Defense Council v. EPA, the D.C. Circuit remanded to EPA both the final “Clean Air Fine Particle Implementation Rule” (72 Fed. Reg. 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 Fed. Reg., May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013). The court found that EPA erred in both rules in implementing the 1997 PM2.5 NAAQS pursuant only to the general implementation provisions of subpart 1, rather than also the implementation provisions specific to particulate matter in subpart 4. As a result, the court remanded both rules to EPA. Given the court’s opinion in Natural Resources Defense Council v. EPA, EPA is withdrawing its guidance document for the 2006 PM2.5 NAAQS. Although EPA is withdrawing the guidance, it will continue to implement the 2006 PM2.5 NAAQS under the CAA.


EPA Estimates $384 Billion Needed To Improve Drinking Water Infrastructure: EPA on June 4, 2013, issued a report estimating that some $384 billion is needed to bolster the U.S. drinking water infrastructure. The report, EPA’s Drinking Water Infrastructure Needs Survey and Assessment: Fifth Report to Congress, is available online. The report claims that there are 73,400 drinking water systems across the United States, and these systems comprise thousands of miles of pipes and thousands of treatment plants, storage tanks, and water distribution systems, many of which are in need of repair or replacement.

EPA Proposes New Regulation For Stream Electric Power Plants: On June 7, 2013, EPA proposed a regulation under the CWA that would strengthen the controls on discharges from certain steam electric power plants by revising technology-based effluent limitations guidelines and standards. 78 Fed. Reg. 33431. EPA estimates that the proposed rule will reduce the amount of toxic metals and other pollutants discharged to surface waters from power plants by 0.47 billion to 2.62 billion pounds annually, and cut water usage by 50 billion to 103 billion gallons, at a cost of $185 million to $954 million. The proposal would establish new/additional requirements for wastewaters associated with flue gas desulfurization, fly ash, gasification of fuels, and others. EPA is also considering establishing a voluntary program that provides incentives for power plants to eliminate the discharge of all process wastewater. The main pollutants of concern include metals, nitrogen, and total dissolved solids (TDS). More information is available online. The comment period on the proposed rule closes on August 6, 2013.


Danish EPA Commissions Project To Assess Environmental Risks Of Nanomaterials: On May 14, 2013, COWI announced that it was commissioned by the Danish Environmental Protection Agency to assess the impacts of nanomaterials on Denmark’s environment. According to COWI, it will perform detailed risk assessments for ten different nanomaterials, including nanotitantium dioxide, nanosilver, nanocopper, and carbon nanotubes. A spokesperson stated that COWI will chart the lifecycle of the materials and examine what substances are released into the environment during various stages. COWI will extrapolate its findings to provide an overall assessment of risks to the environment posed by nanomaterials. According to the spokesperson, at a later stage, the findings could be used as a basis for determining the need for new -risk-reduction measures. The spokesperson noted that COWI was not charged with making recommendations for legislative action, however. A separate project will examine the risks posed by nanomaterials in consumer products. More information is available online.

EC Posts Assessment Of Consequences Of Changing The REACH Requirements For Nanomaterials: In May 2013, the European Commission (EC) posted a January 2013 report entitled Examination and assessment of consequences for industry, consumers, human health and the environment of possible options for changing the REACH requirements for nanomaterials. According to the report, 12 of the 21 originally suggested options are considered already implemented with existing legislation and guidance. The other nine options were considered relevant for an adaptation of the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation and thus build the basis for the assessment. The report states that the total costs for implementing the nine options range from €11 million to €73 million as a cumulative effort for all concerned companies for a time period until 2022. These costs result from extensive application of grouping and read-across approaches under REACH. Without this approach, the costs would multiply up to €100 million and €600 million. The report states: “The overall conclusion of this impact assessment shows that additional costs for companies lead to a reduced uncertainty about potentially adverse effects of nanomaterials to human health and the environment. These may lead to considerable benefits, especially if combined with appropriate risk reduction measures.” The report is available online.

NNI Publishes Report On RSL Initiatives In Nanotechnology: On May 17, 2013, the National Nanotechnology Initiative (NNI) published a report on regional, state, and local (RSL) initiatives in nanotechnology. The report is the result of a workshop, convened May 1-2, 2012, and sponsored by the Nanoscale Science, Engineering, and Technology (NSET) Subcommittee of the National Science and Technology Council and the Oregon Nanoscience and Microtechnologies Institute. The goal of the workshop was to improve the outcomes of nanotechnology research, education, and business activities undertaken to advance nanotechnology. The report states that the strategy for achieving this goal is “to exploit synergies between the various initiatives, promote sharing of information and resources, and develop ongoing mechanisms for relevant interactions.” The report is not intended to be a consensus document. It states that one theme rose to the top, however: “The continuing global economic downturn after 2008 and the demise of many previously sold RSL initiatives since the third NNI RSL workshop in 2009 gave a strong sense of urgency to the participants’ requests for more Federal attention to and matching financial support of the various regional, state, and local initiatives in nanotechnology.” The report includes recommendations in the following categories: commercialization; collaboration; policy; workforce; support for RSL initiatives; and RSL roadmapping. It also includes a “‘Next Steps’ category to capture activities that can be begun immediately to keep interested parties in touch with one another.” The report is available online.

ECHA Begins Public Consultation On Multi-Annual Work Program: The European Chemicals Agency (ECHA) began a public consultation on the draft multi-annual work program for 2014-2018. According to the draft work program, ECHA will develop “more refined guidance on the registration of substances in nano-form to provide further detailed advice reflecting the state-of-the-art in regulatory science in this respect and the anticipated adaptation of information requirements for nanomaterials in the REACH Annexes.” ECHA states that substance evaluation “will include evaluation of substances in nano-form and thereby contribute to advancing the information and understanding of hazards and risks posed by nanomaterials.” According to the draft work program, high priority topics in regulatory science include nanomaterials. The draft work program states: “With regard to nanomaterials, ECHA aims to ensure that the regulatory requirements of REACH, [Classification, Labeling, and Packaging (CLP)], and [Biocidal Products Regulation (BPR)] can be fully implemented to address the hazards and risks of substances in nanoform.” ECHA intends to extend further “its internal capacities in the area of the characterisation, hazard and safety assessment and risk management of nanomaterials; the Agency will also enable Member States’ experts to participate in capacity building and will share experience with stakeholders.” In addition, ECHA will participate in scientific and regulatory activities at the European Union (EU) and Organization of Economic Cooperation and Development (OECD) level “with the aim of developing appropriate guidance for industry, as well as being able to evaluate registration dossiers that contain information on the hazards, risks and risk management of nanomaterials, effectively.” Comments are due July 15, 2013. More information is available online.

EC Begins Consultation On Occupational Safety And Health Policy Framework: On May 31, 2013, the EC began a public consultation on the new EU occupational safety and health policy framework. According to the EC, the main purpose of the consultation is to obtain comments on the results of the evaluation of the European Strategy on Safety and Health at Work 2007-2012. The EC states that “[t]his should help identify current and future challenges in the occupational safety and health area, and identify solutions to address these challenges.” The EC staff working document highlights five main challenges, including “dentifying the health and safety risks of new or emergent risks. Concerns about nanomaterials, endocrine disruptors and electromagnetic field hazards have been expressed and documented.” The EC states that it particularly seeks comments from Member State public authorities, social partner organizations, and stakeholders and experts with an interest in the area of occupational safety and health. Comments are due August 26, 2013. More information is available online.

European Parliament Calls For Adequate Consumer Protection For Goods Produced Using Nanotechnology: On June 11, 2013, the European Parliament adopted a “new agenda for European consumer policy.” The agenda calls for “adequate consumer protection and product safety in the markets for consumer goods produced using nanotechnology or genetically modified organisms.” The agenda also “[h]ighlights the need for close cooperation between European, national and local authorities and consumer associations in order to establish consultation mechanisms and implement the measures planned in the Agenda.” The agenda is available online.

NNCO Holds Public Workshop Regarding Updating The NNI Strategic Plan: The National Nanotechnology Coordination Office (NNCO) held a workshop on June 11-12, 2013, to obtain input from stakeholders regarding the goals and objectives of an updated NNI Strategic Plan, which is expected to be completed in late 2013 or early 2014. Participants were invited to suggest additions to and provide feedback on wording and emphasis areas in the NNI goals, the objectives that support these goals, and the Nanotechnology Signature Initiatives. Charles L. Geraci, coordinator of the National Institute for Occupational Safety and Health (NIOSH) Nanotechnology Research Program, stated that a successful strategy would integrate environmental, health, and safety concerns, rather than treating them as separate from other goals. The questions discussed at the workshop are available online. The questions are divided into five topics: (1) technical challenges; (2) commercializing nanotechnology; (3) environmental, health, and safety considerations; (4) infrastructure needs; and (5) ethical, legal, and societal implications. More information is available online.


ECHA Opens Consultation On REACH Strategy Through 2018: On May 28, 2013, ECHA opened a consultation on a five-year strategy to guide its work on the EU REACH regulation and related laws from 2014 to 2018. ECHA’s work during this period will be based on four priorities — making available high quality information on chemicals; identifying and effectively managing hazardous substances; improving EU scientific and regulatory capacity for chemicals management; and working efficiently within budgetary constraints. ECHA stated in an e-mail to BNA that the 2013-2015 program would be subsumed into the longer-term program and would “become obsolete” when the 2014-2018 strategy is adopted. ECHA stated that its management board would adopt the 2014-2018 strategy in September 2013. Comments on the draft 2014-2018 program can be submitted through July 15, 2013. The consultation on the ECHA 2014-2018 strategy is available online.


EPA Issues NPRM On RFS: On June 14, 2013, EPA issued a notice of proposed rulemaking (NPRM) to amend the federal Renewable Fuel Standard (RFS) program, by among other things adding additional eligible pathways, which include eligible feedstocks. 78 Fed. Reg.36042. EPA is proposing to amend certain elements of the RFS program regulations. The proposed amendments are intended to facilitate the introduction of new renewable fuels as well as improve implementation of the program. The proposal includes various new renewable fuel pathways that will enhance the ability of the biofuels industry to supply advanced biofuels, including cellulosic biofuels, to the market. Specifically, EPA is proposing to allow renewable diesel, renewable naphtha, and renewable electricity (used in electric vehicles) produced from landfill biogas to generate cellulosic or advanced biofuel renewable identification numbers (RIN). Renewable compressed natural gas (CNG)/liquefied natural gas (LNG) produced from landfill biogas are also proposed to generate cellulosic RINs. The rulemaking also proposes a clarification regarding the definition of crop residue to include corn kernel fiber and proposes an approach to determining the volume of cellulosic RINs produced from various cellulosic feedstocks. EPA is also seeking comment on the potential to allow for commingling of compliant products at the retail facility level as long as the environmental performance of the commingled fuels would not be detrimental. The action also addresses “nameplate capacity” issues for certain production facilities that do not claim exemption from the 20 percent GHG reduction threshold. Several other amendments to the RFS program are included. EPA also proposed changes to the E15 misfueling mitigation regulations codified at 40 C.F.R. Part 80, Subpart N. Among the E15 changes proposed are technical corrections and amendments to sections dealing with labeling, E15 surveys, product transfer documents, and prohibited acts. Comments must be received on or before July 15, 2013.

The rule and related documents on EPA’s Office of Transportation and Air Quality (OTAQ) website are available online. EPA’s Fact Sheet on the proposal is available online.

EPA Extends Comment Period On Tier 3 Proposed Rule Following Industry Requests: On May 23, 2013, EPA announced that it extended the comment period on its proposed Tier 3 standards for vehicle emissions and gasoline until July 1, 2013. The extension responds to requests from industry groups. EPA will not, however, schedule additional public hearings on the proposed rule. The Tier 3 proposal would reduce the allowable sulfur content in gasoline from 30 parts per million (ppm) to 10 ppm beginning in 2017.

USDA Adds Eight Biobased Product Categories To Federal Preferred Purchasing List: On June 11, 2013, the U.S. Department of Agriculture (USDA) expanded the categories of biobased products that are eligible for the government’s preferred purchasing list to include aircraft cleaners, paint removers, and six other product categories. 78 Fed. Reg. 34867. Companies with products in these categories will be eligible starting July 11, 2013, to post product and contact information on the program’s website, which procurement agencies are required to use when making purchases greater than $10,000 in the designated program categories. The new product categories are: aircraft and boat cleaners, automotive care products, engine crankcase oil, gasoline fuel additives, metal cleaners and corrosion removers, microbial cleaning products, paint removers, and water turbine bearing oils. Countertops will also be added to the existing composite panels category as a subcategory. Biobased products, as defined in the 2002 Farm Bill, are those that are composed in whole, or in significant part, of biological products, renewable agricultural materials — including plant, animal, and marine materials — or forestry materials, according to USDA. The 2008 Farm Bill extended the definition to include biobased intermediate ingredients or feedstocks. The final rule at 7 C.F.R. Part 3201 identifies minimum levels of biobased content in products to qualify. The rule is effective on July 11, 2013. More information on the BioPreferred Program is available online.


Bipartisan TSCA Reform Legislation Introduced In Senate: Senators Frank Lautenberg (D-NJ) and David Vitter (R-LA) on May 22, 2013, released bipartisan legislation seeking to reform TSCA. The announcement was surprising because Republicans and Democrats have been bickering for years over reforming the nation’s primary chemical law, which has not been substantively updated since its introduction in 1976. The Chemical Safety Improvement Act (S. 1009) is based on five principles: (1) EPA must make science-based decisions on the weight of evidence; (2) there must be a workable and streamlined prioritization of chemicals for safety evaluations; (3) EPA final decisions will preempt action by state or local governments on chemicals; (4) confidential business information (CBI) will be protected with upfront substantiation; and (5) there must be transparency in all EPA decision-making. According to Senators Lautenberg and Vitter, the legislation would:

  • Require all chemicals in commerce to be evaluated for safety and be labeled as either high or low priority based on potential risk to human health and the environment. EPA would have to conduct further safety evaluations of high-priority chemicals;
  • Give EPA authority to take action if a chemical is found to be unsafe. Such action could range from requiring labeling to the ban of a chemical;
  • Require EPA to transparently assess risk, determine safety, and apply any needed measures to manage risks;
  • Require new chemicals to be screened for safety and give EPA authority to prohibit unsafe chemicals from entering the market;
  • Provide EPA with authority to secure necessary health and safety information from chemical manufacturers, while directing the Agency to rely first on existing information to avoid duplicative testing;
  • Promote innovation and safer chemistry by offering clear paths to marketing new chemicals while protecting trade secrets and intellectual property from disclosure;
  • Require EPA to evaluate the risks posed to vulnerable populations; and
  • Give states and local governments the opportunity to offer their views on EPA’s prioritization, safety assessment, and safety determination processes for chemicals and establish a waiver process to allow state regulations or laws to remain in effect when circumstances warrant it.

The bill garnered an impressive array of bipartisan co-sponsors. These are Senators Kirsten Gillibrand (D-NY), Mike Crapo (R-ID), Richard Durbin (D-IL), Lamar Alexander (R-TN), Charles Schumer (D-NY), James Inhofe (R-OK), Tom Udall (D-NM), Susan Collins (R-ME), Mary Landrieu (D-LA), Marco Rubio (R-FL), Joe Manchin (D-WV), John Boozman (R-AK), Robert Menendez (D-NJ), and John Hoeven (R-ND). A more detailed memorandum providing an in-depth analysis of S. 1009 is available online.

Senate EPW Committee Approves EPA Nominee McCarthy In Party-Line Vote: On May 16, 2013, the Senate Environment and Public Works (EPW) Committee advanced the nomination of Gina McCarthy, President Obama’s pick as the next Administrator of EPA, in a 10-8 party-line vote. The partisan vote could presage a contentious confirmation fight for McCarthy. The vote in the EPW Committee came after GOP Senators boycotted the Committee’s May 9 scheduled vote on the nomination. Republicans have used the nomination to raise concerns about transparency. Ahead of the vote, EPW Ranking Member David Vitter (R-LA) listed the issues EPA must resolve for GOP members to not filibuster McCarthy’s nomination on the floor. Those issues are: to specify in a new Freedom of Information Act (FOIA) policy that requests should not be treated differently based on the requesters’ ideology; to deliver unredacted, work-related e-mails McCarthy sent from a personal e-mail account; to provide documents related to scientific studies that do not include personal identifying information; to convene a panel of economic experts with private sector experience in whole economy modeling and adopt the panel’s recommendations; and to provide intervenors in environmental lawsuits with notice when EPA initiates settlement discussions. Vitter stated he would not impose a filibuster if EPA makes significant progress in assuaging those GOP concerns over the next two weeks, and was willing to back McCarthy based on the response. It is unclear if McCarthy would have enough support among GOP Senators for a filibuster-proof majority.

As of the issuance of this update, McCarthy’s nomination is stalled amid Republican opposition. Senator Roy Blunt (R-MO) on March 18, 2013, placed a hold on her nomination until the administration announces a schedule for the release of a draft environmental impact statement for the St. Johns Bayou and New Madrid Floodway Project, which would close a 1,500-foot gap in the Mississippi River levee system. Other Republicans have threatened to place holds on the nomination for various reasons. There is no timeframe for when a Senate vote on her nomination will proceed.

Senate Confirms Ernest Moniz As Energy Secretary: The Senate on May 16, 2013, approved the nomination of Ernest Moniz as Secretary of the Department of Energy. The 97-0 vote came after a hold on the nomination was lifted. Secretary Moniz most recently headed the Massachusetts Institute of Technology’s energy initiative.

BPA Right To Know: On June 10, 2013, Senator Dianne Feinstein (D-CA) introduced S. 1124, the Bisphenol A (BPA) in Food Packaging Right to Know Act. The measure sets forth requirements regarding the use of BPA in food containers. It provides that no later than 180 days after the date of enactment, the Secretary of Health and Human Services (HHS) shall issue a revised safety assessment for food containers composed, in whole or in part, of BPA, taking into consideration different types of such food containers and the use of such food containers with respect to different foods, as appropriate. Through the safety assessment, the Secretary is charged with determining whether there is a reasonable certainty that no harm will result from aggregate exposure to BPA through food containers or other items composed, in whole or in part, of BPA, taking into consideration potential adverse effects from low dose exposure, and the effects of exposure on vulnerable populations, including pregnant women, infants, children, the elderly, and populations with high exposure to BPA. The Secretary is directed to use the safety standard described above to evaluate the proposed uses of alternatives to BPA. S. 1124 also provides that “f a food container is composed, in whole or in part, of BPA, it will be deemed to be misbranded and violative unless the label includes the following statement: ‘This food packaging contains BPA, an endocrine-disrupting chemical.'” There is a savings provision that states that nothing in the bill shall affect the right of a state, political subdivision of a State, or Indian Tribe to adopt or enforce any regulation, requirement, liability, or standard of performance that is more stringent than a regulation, requirement, liability, or standard of performance under S. 1124, or that requires the provision of a warning of risk, illness, or injury associated with the use of food containers composed, in whole or in part, of BPA.

Senate Passes Water Resources Bill: By a vote of 83-14, the Senate on May 15, 2013, passed the Water Resources Development Act (S. 601). The bill authorizes $12 billion in funding for construction and maintenance of dams, locks, levees, and harbor dredging. It is also intended to reform how the U.S. Army Corps of Engineers implements these projects by streamlining the projects’ approvals. The bill now moves to the House Transportation and Infrastructure Committee for consideration.

Legislation Would Allow Ethanol Produced From Natural Gas To Qualify As Renewable Fuel: Ethanol produced from natural gas would qualify as a renewable fuel under legislation introduced in the House on May 14, 2013, by Representative Pete Olson (R-TX). The Domestic Alternative Fuels Act of 2013 (H.R. 1959) adds “domestic alternative fuels” (defined as ethanol produced from natural gas) to the list of acceptable fuels under the RFS at Section 211 of the CAA. Olson said the bill is needed because the CAA’s “singular focus on corn ethanol translates into higher food costs for working families, as well as higher feed costs for livestock producers.” The bill was referred to the House Energy and Commerce Committee. It has been co-sponsored by Jim Costa (D-CA), Ted Poe (R-TX), Henry Cuellar (D-TX), Rick Crawford (R-AR), Ralph Hall (R-TX), Tom Cole (R-OK), Gene Green (D-TX), Blake Fahrenthold (R-TX), Tim Griffin (R-AR), Bill Flores (R-TX), Joe Barton (R-TX), Kurt Schrader (D-OR), Filemon Vela (D-TX), Peter Welch (D-VT), Randy Neugebauer (R-TX), and Thomas Marino (R-PA).

House Passes Keystone Pipeline Bill; White House Vows Veto: The House of Representatives on May 22, 2013, approved legislation that would by-pass the White House and approve the Keystone XL oil sands pipeline. The Northern Route Approval Act (H.R. 3) passed by a vote of 241-175. This is a largely symbolic vote for two reasons. First, it is unlikely that the Democratic-controlled Senate will take up the legislation. Second, the White House said it will veto the bill if it is passed, because it “seeks to circumvent longstanding and proven processes for determining whether cross-border pipelines are in the national interest by removing the Presidential Permitting requirement for the Keystone XL pipeline project.” The White House said in a May 21, 2013, statement of administrative policy that “if presented to the President, his senior advisors would recommend that he veto this bill.”

DATA Act Seeks To Bring Transparency To Federal Spending For Public And Policymakers: On May 21, 2013, a bill was reintroduced that seeks to allow the public to track federal spending more accurately. Presented by Darrell Issa (R-CA) and Elijah Cummings (D-MD), the Digital Accountability and Transparency Act (DATA Act) (H.R. 2061) would require the Treasury Department to develop a single standard for data presentation, thus allowing interested parties to more easily compare spending over different agencies. Also, it would expand the Federal Funding Accountability and Transparency Act (S. 994) to include spending data for all federal funds by appropriation, agency, subagency, account, program activity, and object class. An earlier version of the same bill passed the House in the previous Congress, however, it did not come up for a vote in the Senate. Co-sponsor, Senator Mark Warner (D-VA), stated it “will allow us to track the full cycle of federal spending on one website, and that should be incredibly helpful to both taxpayers and policymakers.” Katherine McFate, President of the Center for Effective Government, believes this bill would be a good step in improving the public’s ability to track federal spending, thereby aiding citizens in understanding how the federal government works.

Democrats Urge OMB To Accelerate Regulatory Reviews: A bicameral group of Democrats on June 4, 2013, sent the new head of the Office of Management and Budget (OMB) a letter urging an acceleration in the regulatory review process. With Congress gridlocked on a host of issues, President Obama has pledged to take action in its stead, particularly on issues related to energy and the environment. Unfortunately, according to a letter sent by a group of Senate and House Democrats, the President’s own Budget office is delaying the implementation of a host of rules and regulations on everything from clean water to worker safety. The letter was signed by Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA). In it, the Members urge the Director of the White House OMB, Sylvia Burwell, to take “prompt action” to expedite the rulemaking process and improve transparency. Under Executive Order 12866, first signed by President Clinton and reaffirmed by President Obama, rules and regulations under review by the Office of Information and Regulatory Affairs (OIRA) are subject to a 90-day deadline. Delays exceeding 90 days include EPA’s Guidance Identifying Waters Protected by the CWA; Department of Energy (DOE) energy efficiency standards for commercial walk-in coolers and freezers, commercial refrigeration equipment, and metal halide lamp fixtures; and the Occupational Safety and Health Administration’s (OSHA) proposed rule to protect workers from cancer-causing silica dust. In addition to the rules listed in the letter, OIRA is also holding up a proposal from EPA to add a series of new substances to its “chemicals of concern” list. Exposure to these chemical substances is widespread, including through personal care products, commodity plastics, furniture, and carpeting. EPA believes they “present or may present an unreasonable risk of injury to human health or the environment,” and yet the list has been delayed at OIRA for more than 1100 days.

Senate Bill Would Mandate Restoration Reviews By OMB, EPA, Independent Evaluator: On May 21, 2013, Senator Mark R. Warner (D-VA) introduced legislation that would require the White House OMB to evaluate annually the cost effectiveness of Chesapeake Bay restoration activities undertaken by state and federal agencies. The Chesapeake Bay Accountability and Recovery Act of 2013 (S. 1000) would also require the EPA Administrator to update the management plan for the Bay every two years and report to Congress on its progress annually. An independent evaluator would be responsible for filing a separate report to Congress every two years, in addition. Warner stated that the federal agencies working to restore the Bay “must do a better job of coordinating their efforts.”

House Appropriations Panel Sets Targets For 2014 With Cuts To Environment, Energy: On May 21, 2013, the House appropriators approved draft fiscal year 2014 budget allocations that could significantly reduce EPA’s funding as they would proceed to cut about $5 billion from existing levels. These cuts could be avoided if Congress agrees to raise existing caps on future spending. The approved allocations set budget authority for the Department of Interior (DOI), EPA, and related agencies at $24.3 billion, which is 18.4 percent below the current level. As for the Energy and Water development account, the budget is set at $30.42 billion, which is 17 percent below the current level. The reductions in the budget are necessary to fit under the $976 billion discretionary spending cap established by the Budget Control Act and the House budget resolution.

House Bill Will Block Power Plant Rule Until Carbon Capture Systems Are Feasible: On May 23, 2013, Representative David McKinley (R-WV) introduced a bill (H.R. 2127) that would block EPA from issuing in final its carbon dioxide performance standard for all new fossil fuel-fired power plants, regardless of fuel type, until carbon capture systems have been determined as “technologically and economically viable.” This determination must be made by three out of four of the following individuals: the Energy Information Administration Administrator, the Comptroller General, the Director of the National Energy Technology Laboratory, and/or the Commerce Department Undersecretary for Standards and Technology. Under the bill, they must agree and publish their determination in the Federal Register, as well as in a report to Congress before EPA could issue the rule. Co-sponsors of the bill include: Representatives Shelley Moore Capito (R-WV), Morgan Griffith (R-VA), Bill Johnson (R-OH), Robert Latta (R-OH), Pete Olson (R-TX), Collin Peterson (D-MN), and Nick Rahall (D-WV).

Bipartisan Groups In House, Senate Reintroduce Regulatory Accountability Act: On May 23, 2013, House and Senate Democrats and Republicans reintroduced the Regulatory Accountability Act (H.R. 2122) (S. 1029), which would allow judicial review of rules before they are issued in final and would require agencies to choose the lowest cost alternative that meets statutory objectives. Within the bill is a new definition of “major rule,” which would include any rule expected to cost the economy $100 million, impose “a major increase in costs or prices” for consumers or industries, or bring on “significant adverse effects” on competition, employment, investment, productivity, or U.S. companies’ ability to compete with foreign players. For all major rules, agencies would have to publish an advance notice of proposed rulemaking. The bill would also require these agencies to weigh the direct, indirect, and cumulative costs of their proposed rules. The following are co-sponsors of the bill: Representatives Bob Goodlatte (R-VA), Spencer Bachus (R-AL), Collin Peterson (D-MN), Howard Coble (R-NC), Lamar Smith (R-TX), William Owens (D-NY), and Kurt Schrader (D-OR).

White House Approves EPA’s Biennial Plan For Potential New ELG Limits: EPA’s latest biennial plan identifying industry sectors that could be subject to new or revised effluent limitation guidelines (ELG) under the CWA was approved by the White House. OMB completed its formal review of the draft on May 21, 2013. EPA, under Section 304(m) of the CWA, is required to develop a biennial plan identifying new industrial sectors it intends to consider or target for first-time technology standards or existing sectors for which it intends to revise current ELGs. The two-phase process begins with a screening phase that identifies sectors where discharges might pose the highest hazards. Following this phase is the designation of those sectors for a second review process to determine whether new or revised standards might be appropriate. EPA’s 2010 plan failed to complete various studies, including the study of cellulose manufacturers in the Plastics Molding and Forming industry, leaving the door open to address new regulations for those sectors in the upcoming 304(m) plan. The Subcommittee on Water and Wildlife held a hearing entitled “Nutrient Trading and Water Quality,” which is available online. The following witnesses were in attendance: Michael H. Shapiro (Deputy Assistant Administrator for the Office of Water), Dr. Beth McGee (Senior Water Quality Scientist, Chesapeake Bay Foundation), George Hawkins (General Manager, DC Water), Marty Matlock (Professor, Dep. of Biological and Agricultural Engineering, Area Director, Center for Agricultural and Rural Sustainability, Univ. of Arkansas), and Susan Bodine (Partner, Barnes & Thornburg LLP).

Republicans Revise Coal Ash Bill: On June 3, 2013, Representative David McKinley (R-WV) introduced legislation that would revise the Coal Residuals Reuse and Management Act of 2013 (H.R. 2218). The revisions included adding deadlines for the creation and implementation of state permit programs and procedural criteria for EPA to oversee such programs, as well as strengthening EPA’s authority to assess potential deficiencies in state ash management programs. The bill also sets minimum standards and gives states the flexibility to implement a disposal program that protects the environment and jobs. A three-year deadline was put in place for the creation of state programs. Also, state environmental agencies are required to issue final permits for disposal facilities no later than seven years after the date of enactment of the bill. The bill is co-sponsored by 35 bipartisan Representatives, including ten Democrats.

Reauthorization Of Integrated Coastal And Ocean Observation System Act Of 2009: On June 3, 2013, Representative Don Young (R-AK) introduced the reauthorization of the Integrated Coastal and Ocean Observation System Act of 2009 (H.R. 2219). Young amended the bill providing $29.6 million in annual funding for the Coastal and Ocean Observation System through 2018. It was referred to the Committee on Natural Resources and the Committee on Science, Space, and Technology.

Bill Would Amend The Energy Policy And Conservation Act: On June 3, 2013, Representatives Mark Udall (D-CO) and Susan Collins (R-ME) introduced a bill to amend the Energy Policy and Conservation Act to establish the Office of Energy Efficiency and Renewable Energy as the lead federal agency for coordinating federal, state, and local assistance provided to promote the energy retrofitting of schools. The bill is referred to as the Streamlining Energy Efficiency for Schools Act of 2013 (S. 1084).

House Subcommittee Approves Package Of Environmental Regulatory Bills: Four Republican-authored bills to give states more authority over environmental regulation passed a House Subcommittee with little opposition on June 6, 2013, and head to the full panel for consideration. The Coal Residuals Reuse and Management Act (H.R. 2218), the Reducing Excessive Deadline Obligations Act (H.R. 2279), and the Federal Facility Accountability Act (no bill number yet) were all approved by voice vote. The Federal and State Partnership for Environmental Protection Act (H.R. 2226) was approved by a vote of 11-7. The four bills now move to the full Committee for consideration. The Coal Residuals Reuse and Management Act authored by David McKinley (R-WV) provides an alternative to EPA’s 2010 proposal to regulate coal ash as a hazardous waste by creating a state-based program that sets enforceable federal standards. The Reducing Excessive Deadline Obligations Act authored by Cory Gardner (R-CO), provides greater regulatory certainty by eliminating two deadlines under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, And Liability Act (CERCLA). The bill also protects the financial responsibility requirements of states and other federal agencies by ensuring that financial responsibility requirements promulgated by EPA under CERCLA will not preempt existing requirements unless EPA determines it is necessary. The Federal Facility Accountability Act, sponsored by Bob Latta (R-OH), would require federal facilities to comply with relevant state and local laws in doing a CERCLA cleanup. The bill also provides a process by which EPA can review, or a state can request a review by EPA, of actions taken pursuant to delegated CERCLA authority. The Federal and State Partnership for Environmental Protection Act, authored by Bill Johnson (R-OH), increases states’ participation in the CERCLA process by amending provisions relating to state consultation on removal and remediation actions, state concurrence with listing on the National Priorities List, and state credit for contributions to the removal or remediation action.

Bill To Amend Comprehensive Environmental Response, Compensation, And Liability Act Of 1980: On June 3, 2013, Representative Bill Johnson (R-OH) introduced a bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 relating to state consultation on removal and remedial actions, state concurrence with listing on the National Priorities List, and state credit for contributions to the removal or remedial action, and for other purposes (H.R. 2226). It has been referred to the Committee on Energy and Commerce, as well as the Committee on Transportation and Infrastructure.

Petroleum Coke Transparency And Public Health Study Act: Representative Gary Peters (D-MI) on June 6, 2013, introduced a bill that would require the Secretary of HHS to conduct a study on the public health and environmental impacts of the production, transportation, storage, and use of petroleum coke. Peters introduced the Petroleum Coke Transparency and Public Health Study Act (H.R. 2298) due to concerns about the storage of petroleum coke stored in the open air on the banks of the Detroit River. He believes that state regulators, communities, and industry stakeholders would benefit from a complete understanding of petroleum coke and the potential impact on public health related to the production, transportation, storage, and use of petroleum coke.

House Committee Passes Bills That Expand Offshore Drilling And Open Alaskan Oil Reserve: On June 12, 2013, the House Natural Resources Committee approved the Offshore Energy and Jobs Act (H.R. 2231), which would require the Obama Administration to write a new, expanded five-year offshore leasing program. It would also expand the authorizing of lease sales off the coasts of Virginia, South Carolina, and Southern California. The Committee also passed the Alaska Petroleum Reserve Bill (H.R. 1964), which would open all of the National Petroleum Reserve on Alaska’s North Slope to energy development. The bill would nullify the Obama Administration’s decision to designate more than half of the 23 million-acre petroleum reserve as protected wildlife habitat that would be off limits to exploration.

Bill Requires FDA To Study Antimicrobial Drugs Used In Food-Producing Animals: Senator Kirsten Gillibrand (D-NY) on May 8, 2013, introduced the Antimicrobial Data Collection Act (S. 985). The bill is intended to improve the ability of the Food and Drug Administration (FDA) to study the use of antimicrobial drugs in food-producing animals. FDA is directed under the measure to develop a research program to study the relationship between the sales, distribution, and end-use practices of animal drugs containing an antimicrobial active ingredient in food-producing animals and antimicrobial resistance trends. FDA may also consider any other available sound information, science, research, expertise, or program designs. FDA is to use the data to better determine the relationships between sales data, distribution data, and end-usage data of animal drugs containing an antimicrobial active ingredient in food-producing animals to inform FDA policies regarding data collection and regulation of antimicrobial products in agriculture, including consideration of the potential value and feasibility of data from veterinary feed directives and other sources. FDA is also to use the information to study the relationships between the use of animal drugs containing an antimicrobial active ingredient in food-producing animals and trends in antimicrobial resistance, including by using the data collected through the National Antimicrobial Resistance Monitoring System or other studies regarding resistance levels in bacteria associated with food-producing animals.

Disclosure Of Gluten In Human Drugs Would Be Required Under House Bill: Representative Tim Ryan (D-OH) introduced the Gluten in Medicine Disclosure Act of 2013 (H.R. 2003) that would amend the FFDCA to require the labeling of drugs intended for human use to contain a statement identifying the source of any ingredient constituting or derived from a grain or starch-containing ingredient. The bill would apply to any drug that is intended for human use, that contains such an ingredient (other than a polyol), and whose label fails to include a statement identifying the source of the ingredient so constituted or derived.

Patient Choice Act Of 2013: Representative H. Morgan Griffith (R-VA) introduced the Patient Choice Act of 2013 (H.R. 2090) to amend the FFDCA to authorize provisional approval of fast track products determined by FDA to be adequately safe. The term “adequately safe” means that: (1) for at least one population, the risk of death or morbidity caused directly by an adverse effect of the drug is unlikely to be greater than the combined direct and secondary risks of death or morbidity of the disease and existing therapies; or (2) the drug has had a valid marketing authorization for at least four years in specified countries and data adequate for the approval of such marketing authorization has been submitted to the Secretary. The bill treats provisional approval in the same manner as approval of a drug, except that provisional approval is subject to requirements related to informed consent and continued pursuit of safety and efficacy data for purposes of gaining final approval for the drug. The bill prohibits FDA from imposing any requirements for safety studies or data in addition to, or different than, the requirements for studies to establish safety for purposes of Phase 1 or Phase 2 Furthermore, the measure applies the provisional approval only to the indication for the drug: (1) which is related to the treatment of the condition with respect to which the drug was designated as a fast track product, and (2) for which the drug is demonstrated to be adequately safe. Finally, H.R. 2090 prescribes requirements for termination of provisional approval, withdrawal of such approval, and application of market exclusivity to fast-track approval products.

Foreign Manufacturers Legal Accountability Act Of 2013: Representative Matt Cartwright (D-PA) on May 22, 2013, introduced H.R. 1910. The bill expresses the sense of Congress with respect to jurisdiction of courts in the United States over foreign manufacturers that import products into the United States. The measure directs FDA, the Consumer Product Safety Commission (CPSC), and EPA to require foreign manufacturers and producers of such products (or components used to manufacture them), in excess of a minimum value or quantity, to establish a registered agent in the United States authorized to accept service of process on their behalf for the purpose of any state or federal regulatory proceeding or civil action in state or federal court. H.R. 1910 deems a foreign manufacturer or producer of products covered under this Act that registers an agent to consent to the personal jurisdiction of the state or federal courts of the state in which the agent is located for the purpose of any civil or regulatory proceeding. Other provisions include a stipulation that any person who imports into the United States a covered product manufactured or produced outside the United States is to provide to the U.S. Customs and Border Protection (CBP) a declaration that to the best of the person’s knowledge, with respect to the importation of each covered product, the foreign manufacturer or producer of the product has registered an agent in the United States. The CBP Commissioner is directed to prescribe related regulations. Also, the bill subjects an importer who fails to provide or files a false declaration to certain penalties. There are two additional requirements. First, the Secretary of Agriculture and the Commissioner of Food and Drugs are directed to jointly study the feasibility and advisability of requiring foreign producers of food distributed in commerce to establish a registered agent in the United States who is authorized to accept service of process on behalf of such producers for the purpose of all civil and regulatory actions in state and federal courts. Second, the head of each agency cited in this Act similarly is to study feasible and advisable methods of requiring foreign manufacturers or producers of component parts of covered products distributed in U.S. commerce to establish registered agents in the United States for purposes of such service of process.


President Obama Issues Memorandum To Speed Modernization Of The Nation’s Electric Grid: On June 7, 2013, as part of his initiative to make America a magnet for jobs by building a 21st century infrastructure, President Obama signed a Presidential Memorandum that is intended to accelerate the modernization of the nation’s electric grid. The changes outlined in the memorandum will help make electricity more reliable, save consumers money on their energy bills, and support homegrown American clean energy jobs and industries by making renewable energy easier to access across the country, the White House said. Transmission projects often cover hundreds of miles and involve multiple federal, tribal, state, and local jurisdictions with diverse interests and responsibilities. Collaborating early to minimize duplication and delays is vital to getting critical projects to construction to better serve American homes and businesses. The Presidential Memorandum directs federal agencies to create an integrated pre-application process across the federal government to help identify and address issues before the formal permit application process begins, and streamline the coordination of permitting processes across the federal, state, and tribal governments. The memorandum also directs agencies to identify and improve the use of energy corridors on federal lands that are most suitable for siting electric transmission projects, to help expedite permitting while improving environmental and community outcomes. These energy corridors are designed to reduce regulatory conflicts, minimize negative impacts on natural and cultural resources, and address concerns of local communities, decreasing the potential for permitting delays. For these corridors, agencies will work together to integrate new and innovative ways to avoid, minimize, and mitigate the impact on environmental and cultural resources. The memorandum also prioritizes meaningful engagement with stakeholders and the public to arrive at the best quality projects with the least conflicts and most support.

EPA Advises Facility Operators To Minimize Releases During Hazardous Weather Events: As hurricane season approaches, and in the wake of the tragic tornado in Oklahoma, EPA issued a Hazardous Weather Release Prevention and Reporting Alert to remind facility operators of certain regulations that require minimization of chemical releases during process shutdown operations. This alert is designed to increase awareness among facility operators about their obligation to operate facilities safely and report chemical releases in a timely manner. The alert specifies operational release minimization requirements and clarifies reporting requirements, including exemptions. The alert is available online.

Federal District Court Rules RoC Listing Of Styrene Is Justified: On May 15, 2013, the U.S. District Court for the District of Columbia rejected the Styrene Information and Research Center Inc.’s (SIRC) challenge to HHS’s inclusion of styrene in the 12th Report on Carcinogens (ROC). SIRC had alleged that HHS violated the Administrative Procedure Act, the Information Quality Act, and the Federal Advisory Committee Act in listing styrene as a ”reasonably anticipated human carcinogen.” The court ruled that in the ROC HHS provides a “rational explanation” for its decision to list styrene as a reasonably anticipated human carcinogen and that HHS’s explanation was adequately supported by the administrative record

.Chamber Issues Report On “Sue And Settle” Tactics: On May 20, 2013, the U.S. Chamber of Commerce released a report claiming that environmental groups have employed “sue and settle” tactics to force more than 100 new rules from EPA. The report — Sue and Settle: Regulating Behind Closed Doors — is available online. The sue and settle tactic allegedly occurs when a group files a lawsuit against a federal agency for failing to meet a regulatory deadline or other mandatory requirement. These lawsuits result in consent decrees that “reprogram the priorities” of federal agencies, according to the report. Stopping sue and settle tactics are also the subject of numerous bills that have been introduced in this Congress. EPA bears the brunt of the report’s criticism. Sixty sue and settle cases reportedly have been administered for the CAA alone since 2009, the study found. From 2009 to 2012, there were approximately 71 total lawsuits, or intents to sue, resulting in more than 100 new rules, according to the report. The Chamber’s study identified the Sierra Club as responsible for 34 of the 71 lawsuits against EPA, with WildEarth Guardians coming in second with 20 suits.

Court Dismisses Case That Sought EPA Regulation Of Lead Bullets Under TSCA: On May 23, 2013, a federal district court dismissed a lawsuit from environmental groups that sought to force EPA to regulate lead bullets and shot under TSCA. Trumpeter Swan Society v. EPA, D.D.C. No. 12-00929. The court agreed with EPA’s position that it did not have the authority to regulate lead bullets under TSCA. The decision appeared to rely on a May 20, 2013, Supreme Court decision that courts must give agencies broad deference to determine their own jurisdictional authority. City of Arlington v. FCC, U.S., No. 11-1545.

EPA Issues Technical Guidance For Assessing Environmental Justice In Regulatory Analysis: EPA’s Offices of Environmental Justice, Policy, and Research and Development on May 29, 2013, held a webinar presenting the Draft Technical Guidance for Assessing Environmental Justice in Regulation Analysis. In the webinar, EPA representatives stated that rulemaking is one of the main priority areas of EPA’s Environmental Justice (EJ) Plan of 2014, with a direct focus on how to incorporate EJ into regulation and how to conduct analyses to assess potential EJ concerns for rules. The draft guidance is comprised of five key components: Key Analytic Principles and Definitions; Contributors and Drivers of EJ; Consideration of EJ when Planning a Human Health Risk Assessment; Conducting Regulatory Analyses to Assess EJ Concerns; and Research Gaps. EPA explained that the key steps it will use to guide its EJ assessments can be divided into two basic categories:

The recommendations include offering some level of quantitative analysis for EJ, presenting insightful information about potential EJ concerns when impacts/benefits will not be quantified by race/ethnicity or income, integrating scoping questions at the planning stage of risk assessment, using the same baseline and regulatory scenarios as other types of regulatory analyses, and considering distribution of costs when appropriate. The draft guidance states that analyses should inform pending decisions, rely on generally accurate procedures for conducting risk assessments and economic analysis, and integrate consideration of EJ into existing analytical efforts. They should use existing framework and the best available science/data. The analyses should be transparent with regard to data sources, assumptions, analytic techniques, and results. In terms of definitions, the use of “difference vs. disproportionate” was discussed. “Difference” should be used to indicate an analytically measurable distinction in impact/risk across population groups. “Disproportionate” should be used to refer to differences in impact/risk that are substantial enough that they may merit Agency action. With respect to conducting regulatory analyses to assess EJ concerns, EPA said that the following are the key concepts:

How to evaluate feasibility of conducting quantitative assessment of EJ concerns.
Define baseline and incremental changes for an analysis of EJ concerns.
Summarize quantitative methods for assessing disproportionate impacts.
How to define comparison groups and geographic issues (key analytic issues).
Discussion of costs, non-health impacts, and analytic recommendations when information on emissions, risk, exposure, and health impacts is unattainable.

Data gaps were only briefly discussed, as the peer review process is ongoing. Public comments on the draft guidance will be accepted until July 8, 2013.

SEC Issues Guidance On Conflict Minerals Rules: On May 30, 2013, the Securities and Exchange Commission (SEC) issued guidance on its conflict minerals rule in the form of frequently asked questions (FAQ). The SEC also issued guidance on its resource extraction disclosure rule. The guidance , prepared by the staff of the Division of Corporation Finance, does not constitute SEC rules , regulations, or statements, and the Commission stated that it has not approved or disapproved the FAQs. SEC’s conflict minerals and resource extraction rules require specialized disclosures mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Dodd-Frank Section 1502 requires issuers to disclose their use of so-called conflict minerals — tantalum, tin, gold, or tungsten — from the Democratic Republic of Congo and surrounding countries. Dodd-Frank Section 1504 directed the extractive industries to disclose payments made to governments to further the commercial development of oil, natural gas, or minerals . The FAQs on the conflict minerals rule are available online. The FAQs on the resource extraction rule are available online.

President Obama Announces Intent To Nominate Top Lawyer At EPA: President Obama on June 5, 2013, announced his intent to nominate EPA Deputy General Counsel Avi Garbow to serve as the head of EPA’s Office of General Counsel (OGC). The position has been open since former General Counsel Scott Fulton stepped down in January. Garbow has been Deputy General Counsel since September 2009. Before then, he worked at the law firms of Cohen Milstein Sellers & Toll and Wilmer Cutler Pickering Hale and Door. He also worked at the Department of Justice (DOJ) and at EPA under the Clinton Administration.

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