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March 1, 2011

Monthly Update for March 2011

Bergeson & Campbell, P.C.


Agriculture Groups Seek Supreme Court Review Of National Corn Growers: Three agriculture organizations and FMC Corporation in February asked the U.S. Supreme Court to review National Corn Growers Ass’n v. EPA, 613 F.3d 266, 71 ERC 1129, a federal appeals court ruling that vacated a portion of a U.S. Environmental Protection Agency (EPA) final rule revoking all food residue tolerances for carbofuran. At issue is whether a public evidentiary hearing was necessary before EPA could properly revoke the food residue tolerance for carbofuran, a widely used pesticide. The National Corn Growers Association, the National Sunflower Association, the National Potato Council, and FMC Corporation are seeking to overturn a July 23, 2010, opinion by the U.S. Court of Appeals for the District of Columbia Circuit and to obtain a reversal of the EPA order issued in May 2009 revoking food residue tolerances for carbofuran.

EPA Issues Pesticide Reregistration Performance Measures And Goals: On March 2, 2011, EPA announced the availability of a progress report in meeting its performance measures and goals for pesticide reregistration during fiscal years 2009 and 2010. 76 Fed. Reg. 11456. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires EPA to publish information about EPA’s annual achievements in this area. The notice outlines the integration of tolerance reassessment with the reregistration process, and describes the status of various regulatory activities associated with reregistration and tolerance reassessment. The notice provides the total numbers of products reregistered and products registered under the “fast-track” provisions of FIFRA. Comments are due May 2, 2011.

New Robot System To Test 10,000 Chemicals For Toxicity: EPA rolled out on March 10, 2011, a new high-speed robot screening system that will test 10,000 different chemicals for potential toxicity. The robot system, which is located at the National Institutes of Health Chemical Genomics Center (NCGC), was purchased as part of the Tox21 collaboration established in 2008 between EPA, the National Institute of Environmental Health Sciences (NIEHS) National Toxicology Program (NTP), and NCGC, with the addition of the U.S. Food and Drug Administration (FDA) in 2010. The 10,000 chemicals the robot system will screen include chemicals found in industrial and consumer products, food additives, and drugs. Testing results are expected to provide information useful for evaluating if these chemicals have the potential to disrupt human body processes enough to lead to adverse health effects. Tox21 has already screened more than 2,500 chemicals for potential toxicity using robots and other innovative chemical screening technologies. The Tox21 chemical screening technologies were used to screen the different types of oil spill dispersants for potential endocrine activity during the BP oil spill in the Gulf of Mexico last year. Video of the Tox21 robot is available online.

Chemical Heritage Foundation Releases Video From Its March 3 Event: On March 3, 2011, Chemical Heritage Foundation’s Center for Contemporary History and Policy sponsored an event entitled “TSCA: From Inception to Reform, a Public Dialogue.” James V. Aidala, Bergeson & Campbell, P.C. (B&C), and Charles M. Auer, Charles Auer & Associates, LLC, affiliated with B&C, participated in the panel discussion. As part of Chemical Heritage Foundation’s oral history project, the program focused on the Toxic Substances Control Act (TSCA) and its implementation, and featured individuals who were involved in developing EPA’s toxic substances program since its inception in 1976. The program offered an opportunity to hear first hand accounts by those who built and implemented TSCA, and gain their perspective on the law, what it has done, and whether or not it can continue to work in the 21st century. The video from the event is available online.

Administrator Jackson Testifies Before House Committee On Agriculture: On March 10, 2011, EPA Administrator Lisa P. Jackson testified before the U.S. House of Representatives Committee on Agriculture during a public hearing to review the impact of EPA regulation on agriculture. During the hearing, which spanned four hours, the Administrator faced questions from 26 members of the Committee, with a major focus on regulatory actions perceived in the farming community as inconsistent, over burdensome, and overreaching of EPA’s authority.

The questions and comments from the Committee ranged in topic with a few focusing on EPA’s record on pesticide and chemical regulation. Representative Jim Costa (D-CA) expressed his concern over EPA’s handling of soil fumigants. Mr. Costa instructed the Administrator that EPA has to do a better job of allowing reregistration of existing fumigants or at least provide alternatives to those it cancels, arguing that EPA is leaving little room for farmers to compete in a global economy when it restricts the use of fumigants that are currently used in foreign countries.

Representative Dennis Cardoza (D-CA) turned to EPA’s defense of its own reports on pesticide residue levels, asking the Administrator why EPA does not do a better job of defending its Pesticide Data Program Report from groups that misconstrue the data, which often show residue levels below set tolerances. The Administrator responded by stating that EPA is charged with producing the report, using the best available, peer-reviewed science, and that it does not opine on the findings, but simply produces the data in an impartial manner and cannot control how others interpret the findings.

Representative Jean Schmidt (R-OH) addressed EPA’s handling of bedbugs under FIFRA Section 18, covering emergency exemptions and recent issues with pesticide labels. Ms. Schmidt questioned why EPA was focusing on outreach and prevention in lieu of providing solutions for people with existing bedbug problems — specifically citing EPA’s denial of a Section 18 emergency exemption for Propoxur to eliminate pesticide resistant bedbugs. Administrator Jackson stated that EPA scientists reviewed the Section 18 exemption for Propoxur, but were not able to make a finding that it was safe for general use, especially considering its potential health hazards in exposed children. Jackson indicated that the product might be safe for limited use where a bedbug infestation affects a sensitive population, such as the elderly in nursing homes. Regarding labeling issues, Ms. Schmidt was concerned over EPA’s practice of requiring changes to the wording on existing product labels that contained phrases such as “pro” or “green” because they might be misleading to consumers. Of particular concern was the disparity between EPA’s own cost/benefit analysis of the impact on registrants versus the industry’s own numbers. EPA claimed the label changes would have little cost with few products actually affected — industry studies, however, showed over 5,000 products would need amended labels, with a collateral cost of up to $2.5 billion. Administrator Jackson was not able to explain the sizeable difference in EPA’s and industry’s data, but promised to get an answer and supplement the record accordingly.

A recurring question from numerous members of the Committee addressed EPA’s decision to re-review the human health and environmental effects of atrazine, a widely used herbicide. The concern from members focused on why EPA needed to reconsider its 2003 finding on atrazine that determined it was not likely to impact adversely human health or the environment when used with labeling restrictions. Numerous Committee members cited this decision as proof that farmers could not trust EPA to provide them with the consistent rules needed to remain productive and competitive in the global food and fiber market. Administrator Jackson defended EPA’s review of atrazine by citing the nearly 150 studies produced since 2003 on the pesticide’s effect on human health and additional monitoring data from a variety of sources, including the registrant, on atrazine in drinking water. Based on the amount of new data available, EPA determined it appropriate to look closely at the new information and ensure past regulatory decisions reflect the best available science and continue to be protective.

Another consistent question brought up by numerous members of the Committee dealt with the perception that EPA is developing a zero spray drift standard for pesticide applications. Administrator Jackson assured members that while EPA is concerned over the hazards spray drift can cause and is looking for a solution; it is not currently considering a zero tolerance standard. Administrator Jackson opined that the zero tolerance rumors were spawned by a standard that mistakenly got included on a pesticide label and informed members that EPA is seeking to adopt a standard that is actually achievable.

During the four hour hearing, the Committee members touched on many other areas of concern to the agricultural and farming community over EPA’s actions, including nutrient run-off, adequate cost/benefit analysis of all proposed rules, and course particulate matter standards. In the end, Administrator Jackson acknowledged the difficult situations the agricultural community faces and the relationship it has with EPA, but committed to continuing to ensure that all EPA decisions are based on sound science, transparency, and rule of law, while working to foster a stronger working relationship with the industry through early and repeated engagement with stakeholders.

A copy of the Administrator’s written testimony can be found online. The complete hearing may also be viewed or heard online.


President Obama Requests Additional Funding For NNI: Under the fiscal year (FY) 2012 budget request submitted by President Obama to Congress on February 14, 2011, funding for the National Nanotechnology Initiative (NNI) would increase by $201 million, to $2.1 billion. According to an Office of Science and Technology Policy (OSTP) fact sheet, agencies participating in the NNI have developed three signature initiatives in areas ready for advances through close and targeted program-level interagency collaboration: Nanoelectronics for 2020 and Beyond; Sustainable Manufacturing: Creating the Industries of the Future; and Nanotechnology for Solar Energy Collection and Conversion. Participating agencies will continue to support nanoscience and nanotechnology development through investigator-led research; multidisciplinary centers of excellence; education and training; and infrastructure and standards development. In addition, OSTP states, agencies will still maintain a focus on the responsible development of nanotechnology, with attention to potential human and environmental health impacts, as well as ethical, legal, and other societal issues. At a February 14, 2011, news briefing for reporters, OSTP Director John Holdren said budget reductions proposed by Republicans in Congress could be damaging if applied to federal research funding. More information is available online.

OECD Publishes Booklet On Nanosafety At The OECD: On February 14, 2011, the Organization for Economic Cooperation and Development (OECD) published a booklet entitled Nanosafety at the OECD: The First Five Years 2006-2010, which covers highlights of activities, priority areas, and major outcomes, as well as outreach in dealing with safety issues arising from manufactured nanomaterials. Regarding next steps, OECD states that its research and development program regarding manufactured nanomaterials is “processing rapidly,” so the program remains flexible to address emerging issues in a “timely and resource efficient way.” OECD states: “There is still much to learn to fully understand how to work safely with some nanomaterials. However, if countries continue to work together in the OECD, as they have started to do, this should ensure that the human health and environmental safety aspects are addressed appropriately and efficiently at the same time, as the economic opportunities of the technology advance.” The booklet is available online.

ASME Nanotechnology Institute Posts New Podcast In Nano Educational Series: On March 1, 2011, the American Society of Mechanical Engineers (ASME) Nanotechnology Institute posted the most recent podcast in its Nano Educational Series. The podcast concerns nano environmental health and safety, with Dr. Andrew Maynard, University of Michigan Risk Science Center. The next podcast, scheduled to be posted on March 15, 2011, will discuss modeling and simulation with Professor Wing Kam Liu, Northwestern University. According to the Institute, it intends to improve user’s technical literacy and provide information that will assist career planning and skills development. The podcasts are being offered on a complimentary basis, but users will first need to register. More information is available online.

NIOSH Requests Information To Update Its Nanotechnology Strategic Plan: On March 7, 2011, the National Institute for Occupational Safety and Health (NIOSH) announced that it seeks comment on the types of hazard identification and risk management research that it should consider in updating the NIOSH 2009 nanotechnology strategic plan. 76 Fed. Reg. 12361. According to the Federal Register notice, NIOSH would like to build on the accomplishments of ongoing research to develop strategic research goals and objectives through 2015. NIOSH identified ten critical research areas for nanotechnology research and communication: (1) toxicity and internal dose; (2) measurement methods; (3) exposure assessment; (4) epidemiology and surveillance; (5) risk assessment; (6) engineering controls and personal protective equipment (PPE); (7) fire and explosion safety; (8) recommendations and guidance; (9) communication and information; and (10) applications. NIOSH states that it is considering focusing the overarching strategic research goals for these critical areas on five key goals:

  • Provide guidance to protect workers;
  • Alert workers, employers, governments, and the public about possible new hazards;
  • Assess the hazards of nanomaterials and the risks to workers;
  • Help workers by assessing and implementing exposure registries; and
  • Assess the level of protection practiced in U.S. workplaces.

NIOSH requests comment on how research in the ten critical areas and five overarching goals can be enhanced. Examples of requested information include the need for toxicity evaluation and/or workplace exposure characterization of engineered nanoparticles not currently being studied; development of technical and educational guidance materials; development of additional partnerships and collaborations; and research in the development of risk management strategies. Comments are due April 15, 2011.

PEN Reports Increase In Nano-Enabled Consumer Products: On March 10, 2011, the Project on Emerging Nanotechnologies (PEN) announced the most recent update to its consumer products inventory, which now includes more than 1,300 manufacturer-identified, nanotechnology-enabled products, ranging from conventional products, such as non-stick cookware, to more unique items, like self-cleaning window treatments. When PEN launched its inventory in March 2006, it included 212 products. PEN Director David Rejeski predicted that, if the current trend continues, the number of products could reach 3,400 by 2020. Health and fitness items continue to dominate the PEN inventory, representing 56 percent of products listed. The most common nanomaterial used is nanoscale silver, which is used in 313 products (24 percent of the inventory). The inventory includes products from over 30 countries, including the U.S., China, Canada, Germany, and India. The inventory is available online.


EPA Establishes Clean Air Act Standards For Boilers And Incinerators: On February 21, 2011, EPA issued final Clean Air Act (CAA) standards for boilers and certain incinerators. In response to a September 2009 court order, EPA issued the proposed rules in April 2010. Based on public input received following the April 2010 proposal, EPA claims to have made extensive revisions, and in December 2010 requested additional time for review to ensure the public’s input was fully addressed. Because the final standards significantly differ from the proposals, EPA believes further public review is required. EPA will reconsider the final standards under a CAA process that allows EPA to seek additional public review and comment. EPA’s reconsideration will cover the emissions standards for large and small boilers and for solid waste incinerators. EPA intends to release additional details on the reconsideration process in the near future to ensure the public, industry, and stakeholders have an opportunity to participate. The final standards require many types of boilers to follow practical, cost-effective work practice standards to reduce emissions. EPA is also working with the Departments of Energy and Agriculture to provide the diverse set of facilities impacted by the standards with technical assistance that will help boilers burn cleaner and more efficiently. In separate but related actions, EPA issued final emission standards for sewage sludge incinerators. More information is available online.

EPA Proposes Amendments To The NESHAP For Primary Lead Smelting: On February 17, 2011, EPA published proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for primary lead smelting to address the results of the residual risk and technology reviews conducted as required under CAA Sections 112(d)(6) and (f)(2). 76 Fed. Reg. 9410. The proposed amendments include revisions to the emission limits for lead, the addition of a lead concentration in air standard, and the modification and addition of testing and monitoring and related notification, recordkeeping, and reporting requirements. EPA also proposed to revise provisions addressing periods of startup, shutdown, and malfunction to ensure that they are consistent with a recent court decision. Finally, EPA proposed revisions to the rule’s applicability provision to make it consistent with the definition of the source category and proposed other minor technical changes to the standard. EPA also responded to a petition for rulemaking filed on the standard with regard to lead as a surrogate and regulation of volatile organic compounds (VOC) and acid gases. Comments are due April 4, 2011.

EPA Postpones Deadline For Filing Greenhouse Gas Emissions Reports: On March 1, 2011, EPA announced its decision to postpone indefinitely its deadline for reporting 2010 emissions of greenhouse gases. The original deadline was March 31, 2011. Under a rule issued by EPA in October 2009, sources of greenhouse gas emissions higher than 25,000 metric tons of carbon dioxide-equivalent annually must measure and report their emissions. About 10,000 facilities covered by the rule had to begin measuring emissions January 1, 2010. In a recent news release, EPA stated additional details about the new deadline will be released in “coming weeks” and that the extension will be made official before March 31, 2011. EPA stated it is working on an electronic reporting tool to facilitate emissions reports and that the tool needs more testing and will be finalized sometime this summer, with the emissions data to be published later this year. According to EPA, the extension will allow EPA to test the system that facilities will use to submit data and give industry the opportunity to test the tool, provide feedback, and have sufficient time to become familiar with the tool prior to reporting.

EPA Proposes Revisions To Unregulated Contaminant Monitoring Regulation (UCMR 3) For Public Water Systems: On March 3, 2011, EPA proposed the design for the third UCMR cycle (UCMR 3) and in the process proposed six EPA-developed analytical methods, and four equivalent consensus organization-developed methods to monitor for 30 new UCMR chemical contaminants. 76 Fed. Red. 11713. EPA proposed monitoring for two viruses and 28 new UMCR chemicals, for a total of 30 UCMR 3 contaminants. The proposed contaminants list includes: 17-[beta]-estradiol; 17-[alpha]-ethynylestradiol (ethinyl estradiol); estriol; equilin; estrone; testosterone; 4-androstene-3,17-dione; 1,2,3-trichloropropane; 1,3-butadiene; chloromethane (methyl chloride); 1,1-dichloroethane; n-propylbenzene; bromomethane (methyl bromide); sec-butylbenzene; chlorodifluoromethane (HCFC-22); bromochloromethane (Halon 1011); 1,4-dioxane; vanadium; molybdenum; cobalt; strontium; chlorate; perfluorooctane sulfonic acid (PFOS); perfluorooctanoic acid (PFOA); perfluorononanoic acid (PFNA); perfluorohexane sulfonic acid (PFHxS); perfluoroheptanoic acid (PFHpA); and perfluorobutanesulfonic acid (PFBS). Pre-screen testing includes: enteroviruses and noroviruses. As envisioned, virus analysis (along with related analysis for pathogen indicators) would be conducted in laboratories under EPA contract. Comments must be received on or before May 2, 2011.

EPA Updates National Air Toxics Assessment: On March 11, 2011, EPA released the fourth update of a computer tool that helps federal, state, local governments, and other stakeholders better understand the potential health risks from exposure to air toxics. The National Air Toxics Assessment (NATA) contains 2005 emissions data submitted primarily from the states for 178 pollutants. Models are used to make broad estimates of health risks for areas of the country. The tool is not designed to determine actual health risks to individuals living in these areas. Because the data submitted vary from state to state, it is also not possible to use the data to compare risks between different areas of the country. The assessment shows that EPA, the states, and industry are continuing to make progress to reduce air toxic emissions. Between 1990 and 2005, air toxic emissions were reduced by about 42 percent from industrial and mobile sources. NATA is used to identify which geographic areas, pollutants, and types of emission sources might need closer investigation to characterize more fully potential risks and determine if actions may need to be taken to protect public health. EPA can also use the assessment to work with communities to design their own local assessment, improve the Agency’s emissions inventories, and identify priorities for expanding the air toxics monitoring network. Once risks are fully characterized, state air agencies can decide if steps should be taken to reduce air toxics emissions. More information on NATA and instructions on using the tool are available online.

EPA Issues Final National Emission Standards For Chemical Manufacturing Area Sources: On March 14, 2011, EPA issued a final rule to stay the requirement for certain affected sources to comply with the Title V permit program during the pendency of the reconsideration process. 76 Fed. Reg. 13514. On June 15, 2010, EPA notified Petitioners that the Agency intended to initiate the reconsideration process in response to their request for reconsideration of certain provisions in the NESHAP for Chemical Manufacturing Area Sources. Among the provisions EPA is reconsidering is a requirement that certain affected sources obtain a permit. On December 14, 2010, EPA issued a 90-day stay of the requirement for certain affected sources to comply with the Title V permit program. Because EPA believes that the reconsideration process would not be completed within 90 days, EPA concurrently proposed to stay the provision requiring certain sources to obtain a permit until the final reconsideration rule is published in the Federal Register. After considering the comments received, EPA is promulgating the stay of compliance through this final rule. The final rule was effective on March 14, 2011.

CERES Issues Report That Provides Guidance For Companies On Disclosing Climate Change Issues In SEC Filings: Ceres recently issued a report entitled “Disclosing Climate Risks & Opportunities in SEC Filings: A Guide for Corporate Executives, Attorneys & Directors.” The report is a useful tool for companies and their advisors to assess their climate risk and opportunities and provide helpful reporting to investors.

The report comes one year after the Securities and Exchange Commission (SEC) issued interpretive guidance for companies on material climate-related information they should disclose to investors in their financial filings. It also comes on the heels of a new Mercer study warning that climate change risks, including new regulations, extreme weather events, and other impacts, could increase investment portfolio risk by 10 percent over the next 20 years.

The report provides companies and attorneys who advise them an 11-point checklist for undertaking climate assessment, developing climate strategies, and disclosing risks and opportunities. It helps companies respond to the SEC interpretive guidance by providing examples of good disclosure from both SEC 10-K and 20-F filings, as well as additional details about the type of information investors are seeking. The report is available online.


Green Ribbon Science Panel Reconvened To Discuss Safer Consumer Product Alternatives Regulations: On February 4, 2011, the California Department of Toxic Substances Control’s (DTSC) Green Ribbon Science Panel (Panel) held its first teleconference to discuss strategies for providing advice to DTSC regarding its “Safer Consumer Product Alternatives” (SCPA) regulations. DTSC has now posted on its website an audio file of this teleconference. The next meeting of the Panel is tentatively scheduled for May 5-6, 2011, in Sacramento.

Materials and the audio file from the teleconference are available online.


Legal Group Publishes Progress Reports On EU Countries’ Enforcement Of REACH Law: On February 16, 2011, Client Earth, a legal advocacy organization, published progress reports from 24 European countries that detail how each country is implementing and enforcing the European Union’s (EU) Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). The reports are issued in the form of questionnaire responses from 23 EU member states plus non-EU country Norway. The reports provide information on the national authorities that are responsible for enforcing REACH; on communication between national authorities and European authorities, such as the European Chemicals Agency (ECHA); and on the enforcement activities carried out in EU countries thus far, such as the number of inspections and occasions on which sanctions were applied. The European Commission (EC) declined to release reports from Greece, Italy, Luxembourg, or Slovenia because the EC had not yet been given permission for these reports to be made public. The progress reports on the evaluation and enforcement of REACH are available online.

EC Announces The Addition Of Six Substances To Annex XIV: On February 17, 2011, the EC announced that six substances of very high concern (SVHC) will be banned within the next three to five years unless an authorization has been granted to individual companies for their use. According to the EC, the substances are carcinogenic, toxic for reproduction, or persist in the environment and accumulate in living organisms. The substances, which have been moved from the Candidate List to Annex XIV, are: 5-ter-butyl-2,4,6-trinito-m-xylene (musk xylene); 4,4′-diaminodiphenylmethane (MDA); hexabromocyclododecane (HBCDD); bis(2-ethylhexyl) phthalate (DEHP); benzyl butyl phthalate (BBP); and dibutyl phthalate (DBP). Shortly thereafter, on February 21, 2011, ECHA announced that it will accept comment on whether the chemicals should be so classified.

Companies wishing to sell or use the substances must demonstrate that the required safety measures have been taken to control the risks adequately, or that the benefits for the economy and society outweigh the risks. Where feasible alternative substances or techniques exist, a timetable for substitution will also have to be submitted. For each substance listed, a “sunset date” is provided, ranging from 2014 to 2015. From this date the substance may be placed on the market or used only if an authorization has been granted or an application for authorization has been made before the “latest application date.” These requirements apply regardless of the tonnage at which the substance is placed on the market or used, as no lower limits are provided for the authorization requirement. The EC notes that some uses of substances, such as intermediates, are excluded from the authorization requirement.

Companies must submit their authorization applications to ECHA, whose Risk Assessment and Socio-Economic Committees will consider each application and submit their opinion to the EC. The EC will make the final decision regarding the authorization application. Guidance documents on the preparation of an application for authorization and on preparing a socio economic analysis are available online. The EC states that it “aims to put forward a greater number of known substances of very high concern for inclusion in the candidate list,” and that, together with ECHA, it is “fully committed to achieve this goal with the active engagement of the Member States.” Comments are due by April 7, 2011.

ECHA Publishes Report On Evaluation In 2010: On February 28, 2011, ECHA issued a report that presents details and figures on the different REACH evaluation activities and their respective output. In 2010, ECHA examined 273 dossiers for evaluation: 151 compliance checks and 123 examinations of testing proposals. Seventy of these compliance checks and seven testing proposals were completed in 2010. The remaining dossiers are still being worked on. The report concludes that ECHA identified quality problems in a considerable proportion of dossiers in 2010. It is, however, too soon to draw firm conclusions on the quality of dossiers registered by the first registration deadline as most dossier evaluation work is still to come. The report lists the most common shortcomings found in the dossiers evaluated and gives specific recommendations for registrants of which the most important are: the identity of the registered substance needs to be described clearly; any adaptation to the standard testing regime must meet the conditions set out in Annexes VII to XI of the REACH Regulation, and a clear justification for any adaptation must be provided; the robust study summaries should contain enough detail to allow an independent assessment of the information provided; classification and labeling should be in line with the hazards identified or with the harmonized classification and labeling of the substance; a proposal to do testing must be submitted first (for tests under Annex IX and X) before the test is done — doing a test before getting ECHA’s decision may lead to legal action; and registrants have an obligation to share data resulting from animal tests and to share the costs before submitting the dossier.

Registrants are encouraged to take a pro-active approach and update their dossiers taking into account these recommendations. A copy of the report is available online.


OSHA Issues Revised PPE Directive: On February 15, 2011, the Occupational Safety and Health Administration (OSHA) issued a revised directive that provides OSHA’s enforcement personnel with guidance on determining whether employers have complied with OSHA’s PPE standards. The Enforcement Guidance for Personal Protective Equipment in General Industry replaces Inspection Guidelines for 29 CFR 1910 Subpart I, the revised Personal Protective Equipment Standards for General Industry, issued in June 1995. Changes in this directive include clarifying what type of PPE employers must provide at no cost to workers and when employers are required to pay for PPE. The directive also provides guidance that allows employers to use PPE that complies with current consensus standards and updates PPE enforcement policies based on court and Review Commission decisions. Additionally, the directive lists PPE and other items exempted from the employer payment requirements and includes questions and answers useful in clarifying PPE payment concerns. The directive is available online.


The Federal Budget: After agreeing to a short term extension of funding until March 18, 2011, Democrats and Republicans in both Houses have been working to develop a compromise to avert shutting down the Federal government. The short term extension offered little by way of guidance on where the compromise on spending and entitlements might come, and subsequent developments have made the picture no clearer. The Senate considered and voted to reject the House-passed measure that would have reduced the budget by over $60 billion, and then rejected a Senate generated bill with only some $10 billion in cuts. The short term extension cuts were made in eight programs, some where the Administration had already requested be terminated, such as Election Grants Assistance and the Striving Readers Program, and other programs where no funds were requested by the Administration, such as the Broadband Direct Loan Subsidy and the Smithsonian Institution Legacy Fund. Unlike the measure pushed by Republicans in the House earlier, the extension did not involve cuts to EPA’s budget proposal or that of other agencies.

EPA And Greenhouse Gas Emissions: According to press reports, Congressman Fred Upton (R-MI), Chair of the House Energy and Commerce Committee, intends to move forward with a markup in the full Committee of a measure that would have the effect of preventing regulation by the federal government of greenhouse gas emissions after a bill he sponsored was passed by a House Energy and Commerce Subcommittee on March 10. His bill, H.R. 910, the Energy Tax Prevention Act, would, in general, prohibit the Administrator of EPA from promulgating any regulation concerning, take action relating to, or take into consideration the emission of a greenhouse gas to address climate change. H.R. 910 would also repeal various other actions EPA has taken with regard to greenhouse gas regulation, including the endangerment finding made to enable regulation, and rules for permits for emissions from power plants and other sources. Even if the Upton measure clears the House, it is expected to encounter stiff resistance in the Democrat-controlled Senate and a veto threat from the White House. The Upton measure is one of many circulating on the Hill, all of which will undoubtedly be influenced by the budget debate, since the Republicans in the House have targeted EPA’s authority as a way to reduce costs.

CFATS Extension Studied: Both Houses of Congress, the Obama Administration, and industry and consumer groups are studying the extension of the Chemical Facility Anti-Terrorism Standards (CFATS), likely for seven years. Those rules were recently extended for a short time in the Continuing Resolution passed to keep the government running while budget cuts are being debated. Three items are under discussion as part of an extension agreement. One is the controversial IST or inherently safer technologies concept. With Republicans in the majority in the House, the IST proviso is unlikely to be included. Also under consideration is removing the exemption for wastewater and drinking water facilities, on the grounds that the operators of such facilities cannot cope with more requirements as they deal with their antiquated infrastructure.

Incandescent Light Bulbs Under Fire: Senator Mike Enzi (R-WY) has introduced the Better Use of Light Bulb Act to end efforts to halt use of incandescent lights as an energy efficiency measure. The Enzi legislation would repeal eight provisions of the Energy Independence and Security Act, including the key provision that prescribes energy efficiency standards for general service incandescent lamps, rough service lamps, and other designated lamps. The Senator has indicated that the market place should determine the bulbs to use, not the government. Another piece of energy efficiency legislation has been introduced by Senator Jeff Bingamen (D-MN) and eleven co-sponsors. That bill, the Implementation of National Consensus Appliance Agreements Act of 2011, would establish one or more performance standards that — (1) for covered products (excluding clothes washers, dishwashers, showerheads, faucets, water closets, and urinals), prescribe a minimum level of energy efficiency or a maximum quantity of energy use, determined in accordance with prescribed test procedures; (2) for showerheads, faucets, water closets, and urinals, prescribe a minimum level of water efficiency or a maximum quantity of water use, determined in accordance with test prescribed procedures; and (3) for clothes washers and dishwashers — (a) prescribe a minimum level of energy efficiency or a maximum quantity of energy use, determined in accordance with prescribed test procedures; and (b) include a minimum level of water efficiency or a maximum quantity of water use, determined in accordance with those test procedures. Some analysts have speculated that action on the Enzi bill might forewarn of trouble for the more comprehensive Bingamen energy efficiency bill.

House Republicans Fault EPA For Effect On Production Agriculture: In a February 11, 2011, Press Release, Chair Frank Lucas (R-OK) and the Republican members of the House Agricultural Committee took EPA to task for the negative impact its regulations have had on production agriculture and rural economics and indicated that, pursuant to House Resolution 72, various committees would be investigating existing, pending, and proposed regulations that hurt job creation and economic growth. Members of the Committee addressed the many regulatory burdens farmers, ranchers, and small business owners are facing in rural America, repeatedly commenting negatively on EPA’s role. The Chair stated that “American agriculture is under a constant barrage of irrational and unworkable regulations from the Environmental Protection Agency, which are burdensome, overreaching, and that negatively affect jobs and rural economies.” Representative Jean Schmidt (R-OH) stated: “There are many examples of actions undertaken by Obama’s EPA, which defy sound science, good judgment and will only result in putting America’s farmers and ranchers out of business.”

Senator Lautenberg Reintroduces Polluter Pays: Senator Frank Lautenberg (D-NJ) has reintroduced his Polluter Pays Restoration Act (S.461). The measure, introduced in 2010, would restore the lapsed provisions whereby polluters had to pay for cleanup of Superfund sites. When that legislation was not renewed, the burden of paying often fell on the general revenues. According to a March 2 Press Release by the Senator, Superfund either forced the responsible parties to clean up the contamination or used other resources to clean up the property when specific polluters cannot be identified or were financially unable to perform the cleanup. Roughly one-third of Superfund sites are “orphan sites” where responsible parties cannot be found. Historically, cleanup of orphan sites has been financed by small fees on crude oil (9.7 cents per barrel) and certain chemicals (from 22 cents to $4.87 per ton). The authority for these fees expired in 1995, and shortly thereafter the balance in the trust fund started diminishing and is now bankrupt, placing the burden on taxpayers to clean up after irresponsible companies. Lautenberg’s Polluter Pays Restoration Act would reinstate the Superfund fee on oil and chemical companies, as it existed prior to its expiration. Restoring this small fee on chemical manufacturers, oil companies, and other businesses will ease the burden on taxpayers, speed cleanup and revitalization of blighted properties, and create jobs. EPA supports reinstating the lapsed “polluter pays” fees, and President Obama’s FY 2012 budget proposes this measure as well.

Merits Of REINS Legislation Debated In The House: House members are debating the merits of the REINS (Regulations from the Executive in Need of Scrutiny) Act, H.R. 10. Congressman Geoff Davis (R-KY) brought the measure forward again this session. According to the Library of Congress summary of the bill, it provides Congressional review of agency rulemaking to require Congressional approval of major rules of the executive branch before they may take effect. The REINS text defines “major rule” as any rule, including an interim final rule that has resulted in or is likely to result in: (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or U.S. competitiveness. H.R. 10 provides a short time for Congress to consider such major rules. If a joint resolution of approval of such a major rule is not enacted by the end of 70 session days or legislative days after the agency proposing the rule submits its report on such rule to Congress, the rule shall be deemed not to be approved and shall not take effect. An exception is that a major rule may take effect for 90 calendar days without such approval if the President determines such rule is necessary because of an imminent threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement.


EPA Seeks Public Comment On Plan To Review Regulations: On February 23, 2011, EPA announced that it is inviting public input on a plan that will guide EPA’s retrospective reviews of regulations as part of the Agency’s response to President Obama’s January 18, 2011, Executive Order (EO) 13563, “Improving Regulation and Regulatory Review.” 76 Fed. Reg. 9988. EO 13563 directs each federal agency to consider “how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome.” Specifically, the EO calls on every agency to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency’s regulatory program more effective and or less burdensome in achieving its regulatory objectives.” EPA states that it shares President Obama’s commitment to using common sense and transparency to review federal regulations and will solicit public input regarding the design of its plan via the EPA website through March 20, 2011. EPA will also provide opportunities for input through a public meeting in Washington, D.C. that was convened on March 14, and listening sessions in other parts of the country. These outreach efforts will allow the public to provide EPA with feedback on specific issues, impacts, or programs. By late May, EPA intends to provide the public with its retrospective review plan, as well as the initial list of regulations it plans to review. More information about EPA’s retrospective review website is available online.

EPA ORD Issues Chemical Safety For Sustainability Research/Feedback: On February 24, 2011, EPA’s Office of Research and Development (ORD) requested comment on ways it can better address its commitment to stakeholders. ORD also released a Draft Framework for the Chemical Safety for Sustainability Research Program (CSSRP), which it developed as a result of engagement of ORD and EPA program and regional office scientists and managers. ORD created an interactive website called, through which ideas can be shared. On the CSSRP Ideascale website is: a brief introductory video by Dr. Robert Kavlock, interim National Program Director for the CSSRP and Director of the National Center for Computational Toxicology; a link to the Draft Research Framework for CSSRP; a link to a slide presentation that summarizes the background for and the draft framework; a fact sheet; and eight questions that EPA specifically invites comment on regarding CSSRP. The Ideascale site will be open from February 24, 2011, to March 24, 2011.

ATSDR Identifies Substances To Be Evaluated For Set 25 Toxicological Profiles: On February 28, 2011, the Agency for Toxic Substances and Disease Registry (ATSDR) announced it is initiating the development of its 25th set of toxicological profiles (CERCLA Set 25). The notice announces the list of proposed substances that will be evaluated for CERCLA Set 25 toxicological profile development. 76 Fed. Reg. 10906. ATSDR’s Division of Toxicology and Environmental Medicine is soliciting public nominations from the list of proposed substances to be evaluated for toxicological profile development. ATSDR also will consider the nomination of any additional, non-Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) substances that may have public health implications, on the basis of ATSDR’s authority to prepare toxicological profiles for substances not found at sites on the National Priorities List. The agency will do so in order to “establish and maintain inventory of literature, research, and studies on the health effects of toxic substances” under CERCLA Section 104(i)(1)(B), to respond to requests for consultation under section 104(i)(4), and to support the site-specific response actions conducted by ATSDR, as otherwise necessary. The candidate list includes:

SubstanceCAS Number(s)
s,s,s-Tributyl phosphorotrithioate000078-48-8
Butyl benzyl phthalate000085-68-7
Treflan (Trifluralin)001582-09-8
Fluorides007782-41-4, 007664-39-3, 016984-48-8
Aldrin/Dieldrin000309-00-2, 000060-57-1
Creosote/Coal Tar008021-39-4, 008007-45-2, 008001-58-9, 065996-93-2
DDT, DDE, DDD000050-29-3, 000072-55-9, 000072-54-8, 000789-02-6, 000053-19, 003424-82-6
Asbestos001332-21-4, 012001-29-5, 012172-73-5
Di-n-butyl phthalate000084-74-2
Endosulfan000115-29-7, 001031-07-8, 000959-98-8, 033213-65-9
Methylene chloride000075-09-2
Polychlorinated biphenyls001336-36-3, 011097-69-1, 011096-82-5, 012672-29-6, 053469-21-9, 012767-79-2, 011104-28-2, 012674-11-2, 011141-16-5, 071328-89-7, 026914-33-0
Chlorophenols000088-06-2, 025167-83-3, 000120-83-2, 000095-95-4, 000095-57-8, 004901-51-3, 000935-95-5, 000058-90-2, 000106-48-9, 025167-80-0
Mercury007439-97-6, 022967-92-6, 007487-94-7
Chlorinated Dibenzodioxin (CDDs)001746-01-6, 034465-46-8, 037871-00-4, 041903-57-5, 036088-22-9, 035822-46-9, 003268-87-9, 057653-85-7, 039227-28-6, 019408-74-3, 040321-76-4
Dinitrotoluene025321-14-6, 000121-14-2, 000606-20-2
Endrin000072-20-8, 053494-70-5, 007421-93-4
1,2-Dichloroethene000540-59-0, 000156-60-5, 000156-59-2
Carbon disulfide000075-15-0
Polycyclic aromatic hydrocarbons130498-29-2
Chlordane000057-74-9, 005103-71-9, 005103-74-2, 027304-13-8, 056641-38-4, 12789-03-6, 056534-02-2, 039765-80-5, 005103-73-1, 003734-48-3
Chlordecone/Mirex000143-50-0, 002385-85-5
Chlorinated Dibenzofurans (CDFs)042934-53-2, 039001-02-0, 038998-75-3, 057117-31-4, 055684-94-1, 030402-15-4, 051207-31-9, 067562-39-4, 072918-21-9, 030402-14-3, 057117-44-9, 070648-26-9, 060851-34-5, 057117-41-6, 055673-89-7
1,2-Dibromo-3-chloropropane000096-12-8, 067708-83-2
4,4′-Methylene bis(2-chloroaniline)000101-14-4
Bis(2-chloroethyl) ether000111-44-4
Radium007440-14-4, 013982-63-3, 015262-20-1, 013233-32-4
Thorium007440-29-1, 014269-63-7, 014274-82-9

The notice invites voluntary public nominations for substances not listed in this notice. Nominations are most useful if they include the full name of the nominator, title, affiliation, e-mail address, and telephone number. Nominations are due by March 30, 2011.

GAO Issues Report On Environmental Challenges: On March 4, 2011, the Government Accountability Office (GAO) released a report entitled Environmental Protection Agency Major Management Challenges. In the report, GAO listed EPA’s chemical evaluation program as having a high risk of not achieving its mission due to the backlog of Integrated Risk Information System (IRIS) assessments that remain incomplete. Other challenges include reducing water pollution, the pace of Superfund cleanups, and EPA’s role in climate change issues. The report is available online.

EPA Seeks Comment On Availability Of Literature Searches For IRIS Assessments: On March 11, 2011, EPA announced the availability of literature searches for cobalt (CASRN 7440-48-4) and inorganic cobalt compounds, vanadium pentoxide (CASRN 1314-62-1), vinyl acetate (CASRN 108-05-4), and Libby Amphibole asbestos. 76 Fed. Reg. 13402. EPA requested scientific information on health effects that may result from exposure to these chemical substances. EPA will accept information related to the specific substances included herein as well as any other compound being assessed by the IRIS Program. Please consult the Federal Register for details.

CPSC Announces Launch Of Consumer Product Safety Information Database: On March 11, 2011, the U.S. Consumer Product Safety Commission (CPSC) announced the availability of the database mandated by Congress, as part of the Consumer Product Safety Improvement Act. CPSC encourages consumers to visit to submit reports of harm or risks of harm, and to search for safety information on products they own or may be considering buying. According to CPSC, reporting product safety incidents through the site will help CPSC identify product hazards quicker and provide consumers with safety information on products in and around the home. A more detailed memorandum is available online.

The website includes frequently asked questions (FAQ) concerning reports and for consumers and businesses. The business FAQs address comments; registration; reports; confidentiality; accuracy; and self reporting. The FAQs are available online.

OEHHA Proposes Prop 65 Listings Under Labor Code Mechanism: On March 4, 2011, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed to list four chemicals as known to the State to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) under the “Labor Code mechanism” for listing contained in Health and Safety Code Section 25249.8(a). The four substances are:

ChemicalCAS No.EndpointReference
Cyclopenta[cd]pyrene27208-37-3CancerIARC(2010a; 2010b)
Ethanol in alcoholic beveragesCancerIARC(2010a; 2010c)
Leather dustCancerIARC(2010a)
Salted fish, Chinese-styleCancerIARC(2010a)

This is the first time that OEHHA has proposed to list substances under the Labor Code mechanism since June 12, 2009, when OEHHA announced its intent to add 30 chemicals to Prop 65 based on the Labor Code mechanism. That announcement followed OEHHA’s May 1998 issuance of a document, Request for Public Participation, Notice of Public Workshop, Proposition 65 Regulatory Update Project – Labor Code Mechanism Regulatory Concept (Regulatory Concept), stating its position for why chemicals or substances identified by reference to Labor Code Sections 6382(b)(1) or 6382(d) as known to cause cancer or reproductive toxicity must be included on the Prop 65 list without any further scientific input from impacted stakeholders. Labor Code Section 6382(b)(1) references chemicals identified as carcinogens by the International Agency for Research on Cancer (IARC), while Labor Code Section 6382(d) references chemicals listed pursuant to the federal Hazard Communications Standard (HCS), under regulations found at 29 C.F.R. Section 1910.1200, which includes known and probable carcinogens identified by IARC, substances identified as known or probable carcinogens by the National Toxicology Program (NTP), and several other substances identified as carcinogens by the federal Occupational Safety and Health Act (OSHA). Comments on OEHHA’s March 4, 2011, notice must be received by 5:00 p.m., Monday, April 4, 2011. OEHHA’s March 4, 2011, Notice of Intent to List is available online. OEHHA’s Regulatory Concept is available online. A more detailed memorandum is available online.