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June 1, 2014

Monthly Update for June 2014

Bergeson & Campbell, P.C.


EPA Extols Pesticide Civil Penalty, But The Decision Could Be Problematic For Registrants And EPA: On June 6, 2014, the U.S. Environmental Protection Agency (EPA) announced that Liphatech, Inc. (Liphatech), a pesticide manufacturer based in Milwaukee, WI, paid a $738,000 civil penalty for Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) violations. The vast majority of the penalty was based on violations of FIFRA Section 12(a)(2)(E), because, EPA alleged, Liphatech failed to identify Rozol, a rodenticide used to control prairie dogs, as a Restricted Use Pesticide (RUP) in its advertisements for the product. While this part of the Administrative Law Judge (ALJ) decision imposing the penalty is not likely to present any new compliance issues for registrants and EPA, $40,000 of the penalty is based on a construction of FIFRA Section 12(a)(1)(B) that, if applied beyond this case, could materially and inappropriately constrain the ability of pesticide registrants to make efficacy claims in their advertisements. More information is available online.

EPA Announces Safer Alternatives For Toxic Flame Retardants: On June 12, 2014, EPA announced safer alternatives to flame retardants currently used in consumer and commercial products, including building insulation and products with flexible polyurethane foam. According to EPA, flame retardant chemicals such as hexabromocyclododecane (HBCD) and pentabromodiphenyl ether (pentaBDE) “raise concerns for human health and the environment including potential reproductive, developmental, and neurological effects and can be persistent, bioaccumulative, and toxic to aquatic organisms.” EPA released the final report on alternatives to the flame retardant HBCD and an updated draft report on alternatives to the flame retardant pentaBDE. EPA notes that these alternatives were identified through its Design for the Environment (DfE) Alternatives Assessment Program. More information is available online.

EPA Announces Spring 2014 Regulatory Agenda: EPA published a notice in the June 13, 2014, Federal Register announcing the availability of its spring 2014 Regulatory Agenda. 79 Fed. Reg. 34116. EPA publishes the Regulatory Agenda online (the e-Agenda) at to update the public about:

  • Regulations and major policies currently under development;
  • Reviews of existing regulations and major policies; and
  • Rules and major policymakings completed or canceled since the last Agenda.

EPA includes regulations and certain major policy documents in the e-Agenda. EPA notes that there is no legal significance to the omission of an item from the Agenda, however, and EPA generally does not include the following categories of actions:

  • Administrative actions such as delegations of authority, changes of address, or phone numbers.
  • Under the Clean Air Act (CAA): Revisions to state implementation plans; equivalent methods for ambient air quality monitoring; deletions from the new source performance standards source categories list; delegations of authority to states; and area designations for air quality planning purposes.
  • Under FIFRA: Registration-related decisions; actions affecting the status of currently registered pesticides; and data call-ins.
  • Under the Federal Food, Drug, and Cosmetic Act (FFDCA): Actions regarding pesticide tolerances and food additive regulations.
  • Under the Resource Conservation and Recovery Act (RCRA): Authorization of state solid waste management plans and hazardous waste delisting petitions.
  • Under the Clean Water Act (CWA): State Water Quality Standards; deletions from the Section 307(a) list of toxic pollutants; suspensions of toxic testing requirements under the National Pollutant Discharge Elimination System (NPDES); and delegations of NPDES authority to states.
  • Under the Safe Drinking Water Act (SDWA): Actions on state underground injection control programs.

EPA Updates Its Non-CBI 2012 Chemical Data Reporting (CDR) Database: On June 11, 2014, EPA announced that it had updated its publicly available non-confidential 2012 Chemical Data Reporting (CDR) database and added three fact sheets on the 2012 CDR data. The updated non-confidential 2012 CDR database includes amendments to previously submitted information as well as information submitted by new companies that had not reported prior to the earlier database release in April 2013. The 2012 CDR data reflect manufacturing, processing, and use information for calendar year 2011 from manufacturers (including importers) of certain chemicals on the TSCA Chemical Substance Inventory. These data can be used to find out what chemicals are being produced and used at industrial sites in the United States. To learn more about the 2012 CDR results, visit Please note that the submission period for the 2016 CDR will be from June 1, 2016, to September 30, 2016. EPA intends to issue guidance documents to explain the requirements. EPA also encourages the submission of questions and comments on the 2016 reporting cycle to the CDR inbox available at


EPA Proposes Rule To Cut Greenhouse Gas Emissions By 30 Percent From Existing Fossil Fuel-Fired Utilities: On June 2, 2014, EPA issued arguably the most ambitious and contentious rule in its history. The CAA-proposed rule takes direct aim at the coal industry by requiring a 30 percent reduction in carbon dioxide (CO2) emissions from existing fossil fuel-fired power plants by 2030, using 2005 as the baseline year. The Clean Power Plan proposal is a centerpiece of President Obama’s Climate Change Action Plan and would, for the first time, impose regulatory limits on carbon pollution from existing power plants, the largest source of greenhouse gas (GHG) emissions in the U.S. The proposal does not establish specific emission limits for existing utilities. Instead, the Clean Power Plan has two main parts: state-specific emission rate-based CO2 enforceable state goals to cut carbon pollution per megawatt hour of electricity generated, and guidelines to help states develop plans for meeting the goals. The goal is a target states must meet by 2030, while starting to make meaningful progress toward reductions by 2020. States would be required to develop plans to meet the goals, although EPA is not prescribing how a specific set of measures for states to incorporate into their plans. EPA believes this approach will give states flexibility in what measures they put into the plans. Each state’s goal is a rate — a single number for the future carbon intensity of the state. Each state’s goal also would reflect that CO2 emissions from fossil fuel-fired power plants are determined both by how efficiently and how much they operate. The proposed rule would give states ten to 15 years to achieve the reductions, and states will be able to choose how to meet the goal through whatever measures reflect their particular circumstances. States can develop their own plans or develop regional, multi-state approaches. The proposed rule will be published in the Federal Register within the next few weeks. It is available online. EPA will accept public comment on the proposal for 120 days after its publication in the Federal Register.


FDA To Hold Public Meeting On Proposed Rules To Nutrition And Supplement Fact Labels: On May 29, 2014, the U.S. Food and Drug Administration (FDA) announced a public meeting to be held June 26, 2014, 8:30 a.m. – 5:00 p.m. (EDT) to discuss two proposed rules that appeared in the Federal Register on March, 3, 2014. 79 Fed. Reg. 30763. The proposed rules would lead to significant changes in the nutrition and supplement labels and service size requirements. The comment periods for both proposed rules are due by August 1, 2014. For more information, please consult the Federal Register notice.

FDA Issues Quantitative Assessment On Fish Consumption: On June 10, 2014, FDA issued a study on “Quantitative Assessment of the Net Effects on Fetal Neurodevelopment from Eating Commercial Fish (As Measured by IQ and also by Early Age Verbal Development in Children.” The five-section, 261-page study is an attempt to better understand the health effects of fish consumption with respect to specific endpoints and methyl mercury risk factors and was first issued as a draft in 2009. The study findings support recently released draft updates on advice from EPA and FDA on fish consumption. The study is available online.

FDA Issues New Guidance For Industry: On June 11, 2014, the FDA Centers for Devices and Radiological Health (CDRH) as part of the Unique Device Identifier (UDI) final rule published on September 24, 2013, issued the first phase of the industry guidance for the Global Unique Device Identification Database (GUDID). The guidance is intended to assist device labelers in the process of submitting data to the GUDID. The guidance includes updates on establishing a GUDID account, nomenclature, and electronic records. The second phase is expected in the “coming months” and FDA refers users to the current 2013 guidance until the second phase is issued. More specific details and the guidance documents are available online.


EC Begins Public Consultation On Transparency Measures For Nanomaterials On The Market: As part of the Communication on the Second Regulatory Review on Nanomaterials, the European Commission (EC) announced the launch of an impact assessment intended to identify and develop the most adequate means to increase transparency and ensure regulatory oversight on nanomaterials. The EC has provided a working document, which contains a draft problem definition, policy objectives, and a description of the preliminary policy options that are under consideration. The EC will update the working document over the course of the impact assessment. In support of the impact assessment, the EC is conducting a public consultation to obtain stakeholder views on the currently available information on nanomaterials on the market, the problem definition that forms the basis of the impact assessment, as well as the potential positive and/or negative impacts of the aforementioned policy options. According to the working document, the preliminary policy options are:

0. Baseline scenario;

1. Recommendation on how to implement a “best practice model” for Member States wishing to establish a national system (soft law approach);

2. Structured approach to collect information (“Nanomaterials Observatory”);

3. Regulation creating a European Union (EU) nanomaterial registry with one annual registration per substance for each manufacturer/importer/downstream user/distributor; and

4. Regulation creating an EU nanomaterial registry with one annual registration per use (including substances, mixtures and articles with intended release).

For options 3 and 4, a number of variants, taking into account specific substances, mixtures or articles, shall be considered. Some policy options may be combined. The EC states that it will organize a validation workshop to discuss the preliminary results of the study supporting the impact assessment on transparency measures for nanomaterials with interested stakeholders. The workshop will take place on June 30, 2014, in Brussels. More information regarding the workshop is available online. The public consultation will close August 5, 2014. More information regarding the consultation is available online.

ANSES Calls For A Stronger Regulatory Framework For Nanomaterials: The French Agency for Food, Environmental and Occupational Health and Safety (ANSES) published on May 15, 2014, a review of the available literature on health and environmental issues relating to manufactured nanomaterials. According to ANSES, the review “will help clarify scientific understanding and demonstrate the toxic effects of some nanomaterials on living organisms and the environment.” ANSES states that it is difficult to assess the specific risks associated with nanomaterials. ANSES recommends:

  • Implementing multidisciplinary projects to develop knowledge of the characteristics and hazards of nanomaterials, throughout the product life cycle;
  • A strengthened regulatory framework for manufactured nanomaterials at the European level to characterize better each substance and its uses, taking into account the entire product life cycle; and
  • Regulating certain nanomaterials, for which there are sufficient scientific data on toxicity, under the EU Classification, Labeling, and Packaging (CLP) and Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulations.

More information is available online.

EC JRC Report Discusses Labeling And Reporting Schemes For Nanomaterials: On May 19, 2014, the EC Joint Research Center (JRC) announced the availability of a report discussing labeling and reporting schemes for nanomaterials in consumer products in the EU. The JRC notes that current EU legislation requires nanomaterials to be reported in the list of ingredients, with “nano” added in brackets after the substance name, for food, cosmetics, and biocides. According to the JRC, manufacturers sometimes add voluntary “nanoclaims” indicating the presence or absence of nanomaterials. The JRC states that a product register may give a better overview of the overall application of nanomaterials and potential exposure of humans and the environment. The EC already requires mandatory reporting for cosmetic products containing nanomaterials. Some EU Member States (France, Belgium, and Denmark) have or are introducing mandatory reporting schemes for a wider range of consumer products. The JRC states that several EU Member States, including Austria, Croatia, the Czech Republic, Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Spain, and Sweden would prefer a harmonized central EU nanomaterials register. The report emphasizes that “only mandatory reporting/labelling of products containing nanomaterials can assure accurate and comprehensive information. Harmonised procedures are needed to avoid trade barriers and unfair commercial practices.” The report states that a claim of the presence (or absence) of nanomaterials in products should be verifiable, and provides an overview of experimental methods available for this purpose. The report is available online.

House Subcommittee Holds Hearing On Nanotechnology: From Laboratories To Commercial Products: The House Science, Space, and Technology Subcommittee on Research and Technology held a hearing on May 20, 2014, on “Nanotechnology: From Laboratories to Commercial Products.” The purpose of the hearing was to examine the current state of nanotechnology research and development (R&D), as well as future opportunities and challenges. In addition, the hearing discussed policy issues surrounding nanotechnology applications and activities, federal funding levels for nanotechnology R&D, and key legislative initiatives, including the interagency National Nanotechnology Initiative (NNI). The hearing charter is available online. More information is available in our May 21, 2014, memorandum.

Notice Concerning Nanoscale Materials Remains In EPA’s Regulatory Agenda: On May 23, 2014, EPA posted its 2014 Regulatory Agenda, which still includes RIN 2070-AJ54, “Nanoscale Materials; Chemical Substances When Manufactured, Imported, or Processed as Nanoscale Materials; Reporting and Recordkeeping Requirements; Significant New Use Rule.” According to the item, EPA is developing a significant new use rule (SNUR) under Section 5(a)(2) of the Toxic Substances Control Act (TSCA) that would require persons who intend to manufacture, import, or process this/these chemical substance(s) for an activity that is designated as a significant new use by the proposed rule to notify EPA at least 90 days before commencing that activity. In addition, EPA is developing a proposal to require reporting and recordkeeping under TSCA Section 8(a), which would require that persons who manufacture these nanoscale materials notify EPA of certain information including production volume, methods of manufacture and processing, exposure and release information, and available health and safety data. EPA submitted a proposed rule to the Office of Management and Budget (OMB) on November 22, 2010. The item is available online.

NIOSH Releases The State Of The National Initiative On Prevention Through Design: Last month, the National Institute for Occupational Safety and Health (NIOSH) released a report entitled The State of the National Initiative on Prevention through Design, which provides an overview of the progress and accomplishments of the Prevention through Design (PtD) initiative. The ultimate goal is to prevent or reduce occupational injuries, illnesses, or fatalities through the inclusion of prevention considerations into all designs that might impact workers. According to the report, NIOSH is planning several education modules, including one in Safe Nano Design. NIOSH intends to disseminate the modules through its stakeholders and university partners. The report notes that the NIOSH PtD Program and the NIOSH Nanotechnology Research Center (NTRC) collaborated with the State University New York at Albany, College of Nanoscale Science & Engineering to hold the “Safe Nano Design” workshop in August 2012. The purpose of the workshop was to develop guidance for the safe commercialization of nanotechnology products, resulting in guidelines for the safe synthesis of nanoparticles and associated products by means of a PtD approach. The report states that the conference “illustrated application of PtD principles at the molecular level as well as during the process phase. Nanomaterials can be designed to mitigate toxicity while maintaining functionality. At the process level various approaches can be designed in to protect workers from exposure to hazardous chemicals, including nanomaterials. Integrating the design efforts at the molecular and process levels may have an even greater impact on worker safety and health.” The report is available online.


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


OSHA Announces Stakeholder Meeting On Emergency Response And Preparedness: On June 4, 2014, the Occupational Safety and Health Administration (OSHA) announced a July 30, 2014, stakeholder meeting to discuss emergency response and preparedness issues. 79 Fed. Reg. 32199. OSHA is developing a proposed standard for emergency response and preparedness and will use the information provided by stakeholders during the meeting to help shape that standard. For more information, please consult the Federal Register notice.


House Subcommittee Holds Hearing On Pipeline Safety Program: On May 20, 2014, the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous Materials convened a hearing on the pipeline safety program of the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA). PHMSA’s pipeline safety program is currently authorized by the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (P.L. 112-90), which will expire on September 30, 2015. The Subcommittee heard testimony on PHMSA’s progress in implementing the 2011 Act. The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 made a number of reforms to how pipeline transportation is regulated by DOT. The law also established new requirements for pipeline transportation. The law included 42 Congressional mandates of PHMSA, of which 21 are complete, 13 are on schedule and in progress, and eight have been extended beyond their deadline. As of April 23, 2014, PHMSA had issued ten advisory bulletins, completed five reports, updated two parts of the Code of Federal Regulations, and issued one final rule. The hearing explored PHMSA’s progress in implementing the reforms, requirements, and programs established under the law. The witnesses at the hearing were: Cynthia L. Quarterman, Administrator, PHMSA; Don Santa, President and CEO, Interstate Natural Gas Association of America; Craig O. Pierson, President, Marathon Pipe Line LLC; Ronald A. Bradley, Vice President, Gas Operations, PECO Energy, on Behalf of the American Gas Association; and Carl Weimer; Executive Director, Pipeline Safety Trust. Witness testimony, Subcommittee member statements, and a webcast of the hearing are available online.

President Signs Water Resources Reform And Development Act Into Law: On June 10, 2014, President Obama signed into law the Water Resources Reform and Development Act (WRRDA). The bill (H.R. 3080) authorizes projects of the U.S. Army Corps of Engineers (Corps) to maintain and expand ports, river channels, locks, and levees, to enhance the safety of levees and dams, and to carry out ecosystem restoration projects. In all, WRRDA authorizes 34 new projects for the Corps at a cost of $5.4 billion over the next four years. WRRDA is a bipartisan bill that authorizes a total of $12.3 billion for multiple projects aimed at improving the country’s waterborne commerce and mitigating flooding during storms, with projects that range from deepening coastal ports to improving flood protection on rivers. The bill authorizes the construction of major navigation and flood risk management projects in a deficit neutral manner with no new direct spending. The bill provides the Corps the flexibility to work with non-federal sponsors such as states and local communities on planning assistance, feasibility studies, and project construction. Included in the bill are provisions that require the Corps to meet deadlines and more expediently resolve all environmental reviews, including reviews required under the Endangered Species Act (ESA). The White House objected to the bill’s provisions to streamline environmental reviews. Nonetheless, President Obama signed the bill noting that WRRDA will “put Americans to work modernizing our water infrastructure and restoring some of our most vital ecosystems.” At the bill signing ceremony, the President took aim at lawmakers over the need to pass road infrastructure legislation. “I just want to be clear,” the President stated, “f Congress fails to act, then federal funding for transportation projects runs out by the end of the summer,” which would put more than 100,000 active projects and nearly 700,000 jobs at risk. On May 22, 2014, the Senate voted 91-7 to pass the conference report for H.R. 3080; the House passed the report by a vote of 412-4 on May 20, 2014.

Senate Minority Leader Introduces Legislation To Block EPA Climate Change Rule For Existing Power Plants: Responding to EPA’s June 2, 2014, proposed rule limiting emissions of CO2 from existing fossil fuel-fired power plants, Senate Minority Leader Mitch McConnell (R-KY) introduced the Coal Country Protection Act (S. 2414) to block implementation of the rule. McConnell called the proposed rule the newest and most extreme attack yet in the Obama Administration’s “War on Kentucky Coal” and a “national energy tax.” McConnell’s legislation would require that several benchmarks be met before the rule could be implemented. Under the bill, the Secretary of Labor would have to certify that the rule would not “generate loss of employment.” The Congressional Budget Office would have to certify that it would not result in any loss in U.S. gross domestic product, and the Energy Information Administration would have to certify that it would not increase electricity rates. Similar legislation was introduced in the House by two West Virginia lawmakers on June 10, 2014. Nick Rahall (D-WV) and David McKinley (R-WV) introduced H.R. 4813 to block the EPA rules for five years; their legislation has already garnered some 70 co-sponsors.

Republican Senators Urge Withdrawal Of Power Plant Proposed Rule: On June 3, 2014, 28 GOP Senators sent a letter to President Obama seeking withdrawal of the June 2, 2014, proposed power plant rule. The Senators stated that EPA’s proposed rule should be withdrawn over concerns that the regulations would increase electricity costs and impose heavy burdens on the most vulnerable citizens. “Removing coal as a power source from the [electricity] generation portfolio — which is a direct and intended consequence of your Administration’s rule — unnecessarily reduces reliability and market flexibility while increasing costs,” the letter stated.

Senate Appropriations Committee Boosts Funding For DOT Hazardous Materials Programs: By a vote of 29-1, on June 5, 2014, the Senate Appropriations Committee passed legislation (S. 2438) funding fiscal year (FY) 2015 activities for DOT. DOT’s programs for crude oil and other hazardous materials shipments received a healthy boost in the package. Committee Chair Senator Barbara Mikulski (D-MD) stated that the production of domestic energy resources has increased dramatically in recent years, providing more affordable oil and natural gas, and helping to make the country less dependent on foreign energy imports. The sharp increase in domestic energy production, however, has also meant a rapid increase in oil shipments by rail. This change in the shipment of crude oil poses new challenges for DOT as it works to ensure the safety of our railroads and the communities close to their tracks, Mikulski stated.

The bill provides funding for the following activities at DOT to protect the safety of energy shipments:

Tank Car Design — The Committee stated that there is indisputable evidence that the existing DOT-111 tank car design is inadequate to ensure the safe transportation of Packing Groups (PG) I and II hazardous flammable liquids, including crude oil. PHMSA began regulatory action to change the tank car design standards in September 2013 in response to recommendations from the National Transportation Safety Board (NTSB) and several regulatory petitions. 78 Fed. Reg. 54849 (Sept. 6, 2013). The bill directs PHMSA to issue these revised standards no later than October 1, 2014. This is a daunting challenge for both PHMSA and the regulated community. PHMSA estimates that there are approximately 130,000 DOT-111 rail tank cars in service for PG I and PG II hazardous materials. In a May 30, 2012, letter to NTSB, PHMSA stated that “[r]equiring all new and existing DOT-111 rail tank cars to comply with enhanced design standards will no doubt be a very costly endeavor.”

Classification Activities — Each classification of flammable liquids has different requirements for packaging, hazard communications, operational controls, and safety and security planning throughout the supply chain. The bill provides funding for testing shale crude oil to determine the most appropriate criteria, sampling methods, and testing procedures for energy products. These activities will also help identify any safety gaps in current regulations for the safe transportation of energy products.

Inspectors — The bill provides funds to hire 20 new rail and hazardous materials inspectors, and it fully pays for the 45 new rail safety positions that were provided in FY 2014.

Track Inspections — The bill provides $3 million to expand the use of automated track inspections to ensure proper track maintenance on crude oil routes, covering 14,000 miles of track nationwide.

Short Line Safety Institute — Short line railroads operate on more than 50,000 miles of track, one-third of the national railroad network. Short line railroads use a wide variety of safety management systems and many companies lack the resources to conduct hazardous materials safety training. The bill supports the establishment of a Short Line Safety Institute to perform safety compliance assessments and safety training for short line railroads that transport crude oil.

Training — The Committee recommendation includes funding for a web-based hazardous materials emergency response training curriculum to train public sector emergency response personnel based on or near rail lines that transport significant amounts of high-risk energy products or toxic inhalation hazards.

Tank Car Safety Act Of 2014 Introduced In House: On May 22, 2014, Representative Donald Payne, Jr. (D-NJ) introduced the Tank Car Safety Act of 2014 (H.R. 4738). The legislation is intended to improve the safety performance standards for DOT-111 tank cars, which are commonly used to transport crude oil and other hazardous materials. The bill would require that DOT issue revised standards for DOT-111 tank cars to require an outer steel jacket around the tank car and thermal protection, full-height head shields, and high-flow capacity pressure relief valves. DOT would also be required to upgrade tank cars built after October 2011 by including installation of high-flow capacity pressure relief valves and design modifications to prevent bottom outlets from opening in the case of an accident. DOT would also be required to submit a plan to phase out the use of existing DOT-111 tank cars that transport flammable liquids and that are not upgraded to meet the revised standards.

Senate Subcommittee Holds Hearing On Safety Of Surface Transportation: The Senate Commerce, Science, and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security held a June 3, 2014, hearing on the safety of the nation’s surface transportation system. The witnesses were Joseph Szabo, Administrator of the Federal Railroad Administration; Anne Ferro, Administrator of the Federal Motor Carrier Safety Administration; Cynthia Quarterman, Administrator, PHMSA; and Gregory Winfree, Assistant Secretary for Research and Technology, DOT. A webcast of the hearing and the witness testimonies are available online. The hearing was contentious at times, with Senators questioning the witnesses on the safety of the nation’s hazardous materials transportation infrastructure. Critical safety measures must advance to improve rail safety in Minnesota and across the nation, stated Senator Amy Klobuchar (D-MN). Klobuchar stressed the need to implement “commonsense reforms” to help strengthen rail infrastructure and protect communities near rail lines. Szabo stated the Obama Administration’s proposed GROW AMERICA Act would help improve the safety of rail-transported hazardous materials. (The $302 billion surface transportation reauthorization bill was introduced in April.) The Act would advance positive train control (PTC) implementation as quickly and safely as possible; establish grant programs for rail safety improvements and mitigation measures for communities experiencing increased freight traffic; and prompt more R&D to advance next-generation rail safety technologies, such as automatic track inspection systems, stated Szabo.

House Passes Legislation Boosting PHMSA Funding By $20 Million: The House of Representatives on June 10, 2014, passed legislation that would boost by $20 million the coffers for DOT’s PHMSA. Under the bill, passed by a vote of 229-192, PHMSA would be funded at $205 million for FY 2015, with an increase of almost $20 million. The increase in funding is in response to a spate of recent and fatal derailments of trains carrying hazardous materials.

Bill Seeks To Provide Assistance In Meeting TMDL Requirements: On May 22, 2014, Representatives Tom Reed (R-NY) and Patrick E. Murphy (D-FL) introduced the Impaired Waters Improvement Act (H.R. 4739) to assist local governments and farmers in improving water quality through water infrastructure upgrades and conservation practices. The bill establishes a grant program to help communities and the local agriculture industry with meeting Total Maximum Daily Load (TMDL) requirements, upgrade sewer and wastewater systems, and help improve agriculture runoff practices. The bill is fully paid for by a fee on penalties assessed under violations of the CWA.

House Committee Claims EPA And Corps Failed To Comply With Regulatory Flexibility Act In Waters Of The United States Rule: In a May 23, 2014, letter, the House Committee on Small Business criticized EPA and the Corps for failing to comply with the Regulatory Flexibility Act (RFA) when the two organizations jointly issued their proposed rule on April 21, 2014, defining “waters of the United States” under the CWA. 79 Fed. Reg. 22187. The letter states that EPA and the Corps “failed to conduct outreach and assess the impact of the proposed rule” on small businesses, as is required under the RFA. The letter urged EPA and the Corps to “withdraw the rule and conduct the required small business outreach and analysis before proceeding with the rulemaking.”

House Small Business Committee Holds Hearing On “Waters of the U.S. Proposed Rule”: On May 29, 2014, the House Committee on Small Business continued its assault on EPA’s and the Corps’ final rule on waters of the U.S. by holding a hearing on how small businesses would be adversely affected by the rule. Committee Chair Sam Graves (R-MO) set the tone for the hearing in his opening statement by calling the proposed rule “a classic example of regulatory overreach.” He claimed that the rule will impose significant additional costs and burdens on small businesses to comply with CWA requirements for thousands of small streams, ditches, ponds, and other isolated waters, some of which may have little or no connection to traditionally navigable waters that the Act was designed to protect. His caustic criticism of the rule concluded with “this is a power grab that cannot be justified. It demonstrates the lengths to which the Obama Administration will bend its interpretation of the law and ignore the limits placed on it by Congress, the Supreme Court and the Constitution, to achieve its big government objectives.” The witnesses, largely representing small businesses, generally concurred with Graves’ critique of the rule. Graves’ statement and witness testimonies are available online.

House Bill Would Study Health Effects Of Menstrual Hygiene Products That Contain Chemical Additives And Dioxin: Representative Carolyn Maloney (D-NY) on May 28, 2014, introduced an updated version of her legislation to study the health effects of menstrual hygiene products. The Robin Danielson Act of 2014 (H.R. 4746) would require the National Institutes of Health (NIH) to research whether menstrual hygiene products that contain dioxin, synthetic fibers, and other chemical additives like chlorine and fragrances, pose health risks. The bill also encourages FDA to monitor and publicly disclose the presence of a broad list of contaminants within the wide range of menstrual hygiene products. FDA already monitors dioxin levels in raw materials and finished tampons, but does not presently do so for pads, liners, cups, sponges, and similar products. According to Maloney’s office, the legislation is endorsed by The Society for Menstrual Research, National Latina Institute for Reproductive Health, Teens Turning Green, Search for the Cause, Annie Appleseed Project, Empire State Consumer Project, Breast Cancer Fund, WE ACT for Environmental Justice, Physicians for Social Responsibility, Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), and Alaska Community Action on Toxics. Maloney originally introduced the Robin Danielson Act in 1999. She introduced subsequent versions of the bill in 2003, 2005, 2008, and 2011.

Managed Carbon Price Act Introduced In House: Representative Jim McDermott (D-WA) re-introduced the Managed Carbon Price Act of 2014 (H.R. 4754) on May 28, 2014. The bill seeks to reduce CO2 emissions and to help American industry transition to clean sources of energy. The bill sets specific GHG emission reduction targets to reduce emissions. It also requires producers of GHG emitting substances to purchase permits directly from the Department of the Treasury and authorizes Treasury to set the annual permit price — denominated in quarter ton CO2 equivalents. The bill further requires publication of permit prices five years in advance, with requirements to ensure price certainty for producers. The impact of the legislation will be the creation of specific GHG emission reduction targets over the next 40 years by slowly applying a tax on carbon emitting substances. As the tax increases over time, industry can slowly transition to clean sources of energy, stated McDermott.

Bill Would Prohibit Export-Import Bank From Financing Certain Energy Projects: On May 29, 2014, Representative Jared Huffman (D-CA) introduced H.R. 4768, a bill that would prevent the U.S. Export-Import Bank (EIB) from financing polluting energy projects. According to Huffman, since 2007, EIB has provided more than $7.2 billion in financing for coal-fired power plants around the world. The bill would end all subsidies for energy projects that do not comply with GHG standards being developed by EPA.

Bill Seeks To Promote Clean Energy Solutions: Representative Jim McDermott (D-WA) on May 28, 2014, introduced the Investing to Modernize the Production of American Clean Energy and Technology Act of 2014 (H.R. 4753). By promoting strategic, targeted tax credits and closing oil company tax loopholes, this legislation seeks to ignite the American clean energy economy by boosting clean energy manufacturing. The bill extends a number of tax provisions used by clean energy companies to level the playing field and to compete with their more established traditional-energy counterparts. It specifically extends tax provisions for onshore and offshore wind and other renewable energy production. It also provides incentives for clean energy manufacturing, energy efficient appliances and homes, electric vehicles, and natural gas-powered vehicles. The bill eliminates tax breaks for oil companies to offset the clean energy tax provisions and incentives in H.R. 4753.

Senate Environment And Public Works Committee Passes Brownfields Utilization, Investment, and Local Development Act Of 2013: On June 5, 2014, the Senate Environment and Public Works Committee passed the Brownfields Utilization, Investment, and Local Development Act of 2013 (BUILD Act). Introduced in 2013 by the late Senator Frank Lautenberg (D-NJ), the BUILD Act (S. 491) amends the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) to include among entities eligible for brownfields revitalization funding tax-exempt charitable organizations, limited liability corporations in which all managing members are tax-exempt charitable organizations or limited liability corporations whose sole members are such organizations, limited partnerships in which all general partners are tax-exempt charitable organizations or limited liability corporations whose sole members are such organizations, or qualified community development entities. The bill also requires EPA to establish a program to provide multipurpose grants to carry out inventory, characterization, assessment, planning, or remediation activities at brownfield sites in a proposed area. Lautenberg’s bill also increases the maximum amount the President may give in grants and loans to eligible entities for brownfields remediation. Under the bill, EPA would give brownfields grant funding priority to small communities, Indian tribes, rural areas, or low-income areas with a population of not more than 15,000.

House Committee Passes Bill Seeking To Expedite Approval Of CAA Pre-Construction Permits: On June 10, 2014, the House Energy and Commerce Committee approved legislation that would accelerate EPA’s process for issuing pre-construction permits under the CAA. By a vote of 30-19, the Committee approved the Promoting New Manufacturing Act (H.R. 4795), which would require EPA to publish implementing rules or guidance at the same time it promulgates revised National Ambient Air Quality Standards (NAAQS). The bill also would require EPA to submit an annual report to Congress on efforts to expedite the permitting process and to update its website to feature information on how quickly pre-construction permits are processed.

Environment And Public Works Subcommittee Holds Hearing To Accelerate Superfund Cleanups; Subcommittee Chair Booker Introduces Bill To Reinstate CERCLA Tax: On June 10, 2014, the Senate Environment and Public Works Subcommittee on Oversight held a hearing entitled “Protecting Taxpayers and Ensuring Accountability: Faster Superfund Cleanups for Healthier Communities.” The intent of the hearing was to examine ways in which cleanups under CERCLA can be accelerated. At the hearing, Subcommittee Chair Cory Booker (D-NJ) stated that he would introduce legislation in the Senate to reinstate the excise tax under CERCLA for petroleum and chemical companies in the hopes that additional funding would speed up CERCLA cleanups; the taxes lapsed in 1995 and have not been reinstated. The Superfund Polluter Pays Restoration Act of 2014 specifically would reinstate a petroleum tax on refinery crude oil and imported petroleum products, a per ton tax on 42 chemicals that have hazardous characteristics or may generate hazardous wastes, and a corporate environmental income tax, which is an income tax imposed on large corporations based on their alternative minimum taxable income. Testifying at the June 10 Subcommittee hearing were: Barry N. Breen, Principal Deputy Assistant Administrator, Office of Solid Waste and Emergency Response, EPA; Judith A. Enck, Region 2 Administrator, EPA; Joseph Delaney, Mayor, City of Garfield, NJ; Lois Gibbs, Executive Director, Center for Health, Environment & Justice; Robert Spiegel, Executive Director, Edison Wetlands Association; Susan Bodine, Partner, Barnes & Thornburg; and Scott Thompson, Executive Director, Oklahoma Department of Environmental Quality. A webcast of the hearing, along with member and witness testimonies, are available online.

Highway Runoff Management Act Introduced In The Senate: Senator Ben Cardin (D-MD) on June 11, 2014, introduced legislation intended to control better the volumes of polluted stormwater generated from federal aid highways. Cardin, Chair of the Senate Environment and Public Works Subcommittee on Water and Wildlife, introduced the Highway Runoff Management Act (S. 2456) to address the negative impacts that highway stormwater has on water quality, aquatic ecosystems, and the fish and wildlife that depend on the health of these ecosystems. The force of excessive stormwater flows and volumes from highways presents greater flash flood risks, leads to rapid erosion of water channel stream beds and stream banks, while damaging and shortening the useful life road and water infrastructure, Cardin stated. In a statement accompanying the bill, Cardin added: “Stormwater runoff poses a grave threat to our environment, public health and budgets. Organic and inorganic pollutants wash off the hardened surfaces in urban areas and flow into local rivers and streams. These contaminants are legitimate threats to water quality but the greater concern is the sheer volume and rapid flow rate in which stormwater leaves these hard surfaces and enters our waterways. Our goal is for states to improve the designs of new highways to better manage stormwater and therefore avoid the costly damage that poorly managed stormwater causes to infrastructure and nearby streams, rivers and coastal waters.” The bill would require states to analyze the hydrological impact federal aid highways are having on water resources and development approaches to reducing the destructive impact of heavy stormwater runoff volumes and flows.

House Bill Would Ban EPA From Preemptively Vetoing CWA Permits: On June 12, 2014, Representatives Nick Rahall (D-WV) and Bob Gibbs (R-OH) introduced the Regulatory Certainty Act (H.R. 4854), a bill that would prevent EPA from preemptively vetoing a Section 404 CWA permit. The legislation “aims to rein in the expanding use of Clean Water Act authorities by EPA, which has been using its authority with increasing aggression against West Virginia coal mining,” stated Rahall. While the CWA provides EPA with the authority to veto a Section 404 permit issued by the Corps, “EPA has been pushing the boundaries in its use of its veto authority, including retroactively vetoing an existing permit and threatening to preemptively veto a permit before an application can even be filed,” Rahall added. The bill narrows the timeframe in which EPA my veto a permit. Specifically, EPA may use its veto authority starting at the point that the Corps has completed its procedures for processing a permit. The window for vetoing a permit would then extend a minimum of 30 days and end permanently once the Corps has issued the permit.

Lankford Introduces Bill To Repeal RFS Ethanol Mandates: On June 13, 2014, Representative James Lankford (R-OK), Chair of the House Oversight Committee’s Subcommittee on Energy Policy, Health Care and Entitlements, introduced H.R. 4849, the Phantom Fuels Elimination Act. The legislation would repeal the corn ethanol mandate and require the remaining mandates within the Renewable Fuel Standard (RFS) of the CAA to be fulfilled with domestic production. Lankford stated that he introduced this legislation “to provide a common-sense solution to the unworkable RFS. The Phantom Fuels Elimination Act would allow the sale of corn ethanol, but it would eliminate the mandate. It is irrational to require Americans to purchase ethanol when the final price is higher for the consumer and domestic supplies of energy continue to rise.” Created in 2005, the RFS established the first renewable fuel volume mandate in the United States. Currently, the RFS requires U.S. energy producers to refine 36 billion gallons of biofuels. Lankford’s RFS elimination bill repeals the current corn ethanol mandate in the RFS and limits the biomass-based diesel, advanced biofuel, and cellulosic biofuel mandates to domestic production only. In the event U.S. companies do not produce alternative fuels in an amount sufficient to meet the mandate in any year, which has been the case in years past, EPA would be required to issue a waiver and reduce the overall mandate for that year.

Daines Bill Would Block EPA From Regulating Emissions Of CO2 From Power Plants: Representative Steve Daines (R-MT) on June 13, 2014, introduced the Coal Jobs and Affordable Energy Protection Act (H.R. 4850). The bill is intended “to halt the Obama administration’s attempt to unilaterally impose new Environmental Protection Agency regulations on Montana’s coal industry,” Daines stated. The bill, a companion to the Senate’s Coal Country Protection Act, would prevent EPA’s proposed regulations limiting emissions of carbon dioxide from fossil fuel-fired power plants from taking effect until several benchmarks are met: the Department of Labor certifies that the regulations would not cost jobs; the Congressional Budget Office certifies that the regulations would not result in any loss in the gross domestic product; the Energy Information Administration certifies that the regulations would not increase electricity rates; and the Federal American Electric Reliability Corporation certifies that electricity deliveries would remain reliable.

Latta Introduces Bipartisan Legislation To Strengthen Energy Star Program: On June 13, 2014, Representative Bob Latta (R-OH) introduced a bill aimed at promoting continued development of energy efficient appliances through the Energy Star program. Latta stated that the Energy Star Program Integrity Act (H.R. 4856) will strengthen the Energy Star program by bringing certainty and clarity to program participants. “Expanded use of energy efficient technologies is an important component of our national energy strategy,” stated Latta. Under current procedures, when an Energy Star product is disqualified from the program, a reinstatement process is initiated whereby the manufacturer and the administering agency resolve the cause for disqualification. Within this process, it is determined whether any consumers have been harmed and if compensation is warranted. Since this process has proven successful, the Energy Star Program Integrity Act simply codifies the existing process. This modest fix will likely help to deter costly class action lawsuits that could chill participation in the Energy Star program.


NTP Schedules TCE Peer Review In August: On June 10, 2014, the National Toxicology Program (NTP) announced that it will convene a peer review of its draft monograph on trichloroethylene (TCE) on August 12, 2014, in Research Triangle Park, NC. 79 Fed. Reg. 33203. The draft Report on Carcinogens report will evaluate whether trichloroethylene, which is used as a metal cleaner and degreaser, is eligible to be reclassified from “reasonably anticipated to be a known carcinogen” to a “known carcinogen.” Classifying a substance as a known carcinogen would indicate a causal relationship between exposure to the chemical and human cancer, whereas the lesser classification indicates a potential causal relationship but admits other explanations are possible. The draft monograph on the chemical has not been released yet. NTP released concept and protocol documents on the chemical in January and convened a webinar in March on human cancer studies of the chemical. More information will be available online.

ATSDR Seeks Comment On Toxicological Profiles: On May 22, 2014, the Agency for Toxic Substances and Disease Registry (ATSDR) invited comments on which chemicals it should evaluate for its next set of toxicological profiles. 79 Fed. Reg. 29446. ATSDR is developing its 28th set of toxicological profiles , which are primarily aimed at health agencies and health care providers. Chemicals from the agency’s list of 275 high priority compounds found at waste sites may be recommended for evaluation. Parties asking the ATSDR to evaluate a chemical not on that list should provide their rationale for the nomination. The agency’s list of 275 priority compounds is available online. Comments are due by June 20, 2014.

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