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May 1, 2014

Monthly Update for May 2014

Bergeson & Campbell, P.C.


B&C® Creates TSCA Reform Online Hub: Bergeson & Campbell, P.C. (B&C®) has created an online hub for news, information, and commentary on Toxic Substances Control Act (TSCA) reform that is available at B&C’s lawyers, scientists, regulatory specialists, and business consultants relentlessly participate in and track developments regarding ongoing TSCA reform efforts and related state regulatory initiatives such as California’s Safer Consumer Products Regulations (SCPR) and related developments under the Green Chemistry Initiative.

The hub contains constantly updated links to commentary, analysis, articles, and regulatory documents to help those in the chemical producer and downstream chemical products industries understand what they need to know about TSCA reform, and what it means to their business.

EPA Updates Website To Allow Tracking Of Conditional Pesticide Registrations: On April 15, 2014, the U.S. Environmental Protection Agency (EPA) updated its website to allow the public to track the status of conditional pesticide registrations. The information is presented in a table that shows the conditional registration status of a registration since Fiscal Year (FY) 2000. The website on conditional registrations is available online. The table also identifies the data requirements imposed as a condition of registering the pesticide, the date that data are due to the agency, and the date that the data requirements were fulfilled.

EPA Issues Testing Enforceable Consent Order For D4: EPA published a notice on April 4, 2014, announcing that it issued a testing consent order that incorporates an enforceable consent agreement (ECA) for octamethylcyclotetrasiloxane (D4), a chemical intermediate and component of personal care products. 79 Fed. Reg. 18822. The ECA may well serve as a template for other similar ECAs, and stakeholders may wish to read B&C’s memorandum to understand what is new and different about this ECA. The memorandum is available online.

EPA Issues Direct Final Rule Allowing Collateral Labeling On Pesticides: On April 30, 2014, EPA issued a direct final rule allowing exporters to comply with export labeling rules without requiring labels on each individual pesticide product or device in a shipment. 79 Fed. Reg. 24347. According to EPA, the direct final rule is intended to address the concern of pesticide industry groups raised when EPA removed the term “supplemental labeling” from export-related labeling regulations. The rule restores provisions that previously allowed exporters to use labeling attached to, or accompanying, the product shipping container of the export pesticide at all times when shipped or held for shipment in the United States. The rule is effective on July 29, 2014, unless adverse comment is received by May 30, 2014.

EPA Announces New Director Of Office Of Pesticide Programs: On April 23, 2014, EPA announced the selection of Jack Housenger as the new Director of the Office of Pesticide Programs (OPP). According to the e-mail from Assistant Administrator Jim Jones, Housenger brings a wealth of knowledge to the position having been with OPP for 35 of the last 37 years and having worked in five of the nine Divisions within the Program. Since 2011, Housenger has served as the Director of the Health Effects Division (HED) within OPP. Prior to coming to HED, he served as the Director of the Biological and Economic Analysis Division. Housenger has also held other management positions within OPP, including Associate Director for HED; Associate Director of the Antimicrobials Division (AD); Acting Director and Associate Director of the Special Review and Reregistration Division (SRRD); and Chief of the Special Review Branch in SRRD.

EPA Issues IRIS Program Update: EPA has scheduled the next Integrated Risk Information System (IRIS) bimonthly public science meeting for June 25-27, 2014, and has released preliminary materials associated with the assessments of inorganic arsenic and hexavalent chromium. These materials are available for public comment and will be discussed at the June meeting. IRIS bimonthly public science meetings are intended to allow the public the opportunity to provide input and participate in discussions about preliminary assessment materials and draft IRIS assessments. At the June 2014 meeting, EPA will discuss preliminary materials related to the assessments of inorganic arsenic and hexavalent chromium. For the latest on the public meeting and to view the preliminary materials for inorganic arsenic and hexavalent chromium, please visit the IRIS website.

ECOS Report Concludes States And EPA Have Improved TRI Data Quality: On April 29, 2014, the Environmental Council of the States (ECOS) released a report concluding that states and EPA have since 2005 significantly improved data quality and coordination related to the Toxics Release Inventory (TRI), which requires industrial facilities to report releases and management of certain toxic chemicals to EPA and states. The report, Status of State Toxics Release Inventory Programs, analyzes how states are implementing Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). Section 313 requires facilities that manage or release above a certain threshold of certain toxic chemicals that pose a threat to public health and the environment to track and report annually these activities to EPA and the states under TRI. The report is available online; even though the website displays an error message, click “Download” at the upper right of the screen and then click “Direct download” to view the report.

EPA Extends Comment Period On Issues Related To Laminated Products In Proposed Formaldehyde Emissions Standards For Composite Wood Products: On April 8, 2014, EPA announced a public meeting and the reopening of a comment period for 30 days until May 8, 2014, to receive additional input on EPA’s June 2013 formaldehyde proposal as it related to laminated products. In response to stakeholder requests, on May 9, 2014, EPA extended the comment period until May 26, 2014. 79 Fed. Reg. 26679. EPA will consider the new information received from commenters as it makes decisions on how to proceed on laminated products when preparing the final regulations.

EPA Is Seeking Public Comment On Enhancing Transparency For Chemicals And Mixtures Used In Hydraulic Fracturing: On May 9, 2014, EPA announced that it will seek public comment on what information could be reported and disclosed for hydraulic fracturing chemicals and mixtures and the approaches for obtaining this information, including non-regulatory approaches. EPA is also soliciting input on incentives and recognition programs that could support the development and use of safer chemicals in hydraulic fracturing. A public process through an Advance Notice of Proposed Rulemaking (ANPR) will help inform EPA’s efforts to promote the transparency and safety of unconventional oil and gas activities while strengthening protection of our air, water, land, and communities. EPA’s ANPR includes a list of questions for stakeholders and the public to consider as they develop their comments. Following the 90-day comment period, EPA will evaluate the submitted comments as it considers appropriate next steps. ANPRs are intended to engage the public and solicit comments and/or information from the public for EPA’s consideration in addressing a particular issue, including information that EPA could consider in developing non-regulatory approaches or a proposed rule. EPA’s ANPR can be accessed online.


Supreme Court Upholds EPA Good Neighbor Provisions: A 6-2 decision in EPA v. EME Homer City Generation, the U.S. Supreme Court held that EPA has the authority under the Clean Air Act (CAA) to regulate air pollution from power plants that crosses state lines, handing a major victory to President Obama. The rule, a pillar of President Obama’s second-term climate change agenda, requires 28 states in the East, Midwest, and South to reduce emissions of nitrogen oxides (NOx) and sulfur dioxide (SO2) from coal-fired power plants that “contribute significantly” to air problems in downwind states. Under the CAA Good Neighbor provision, Section 110(a)(2)(D)(i), EPA has the authority to regulate interstate pollution that interferes with the country’s ability to maintain or achieve national air quality standards, which protect public health, the Court held. EPA issued the final rule in 2011, but the D.C. Circuit Court of Appeals struck it down last year, after a challenge from 15 upwind states and utilities. In the case, opponents of the regulation argued that, until EPA fills in the blank on what “contribute significantly” means, it cannot adequately regulate or enforce the pollution rule, leaving states to guess. But EPA countered that the rule allows states three years to form their own implementation plan while giving upwind states flexibility.

EPA Publishes 19th Annual U.S. Greenhouse Gas Inventory: On April 15, 2014, EPA released its 19th annual report of U.S. greenhouse gas (GHG) emissions, showing a 3.4 percent decrease in 2012 from 2011. The Inventory of U.S. Greenhouse Gas Emissions and Sinks, which EPA submits annually to the Secretariat of the United Nations Framework Convention on Climate Change, provides an overview of national annual GHG emissions since 1990. The report states that the major contributors to the decrease in emissions from 2011-2012 were the decrease in energy consumption across all sectors in the U.S. economy, and the decrease in carbon intensity for electricity generation due to fuel switching from coal to natural gas. Other factors included a decrease in transportation sector emissions attributed to an increase in fuel efficiency across different transportation modes and limited new demand for passenger transportation. According to the report, GHG emissions in 2012 showed a 10 percent drop below 2005 levels. Total emissions of the six main GHGs in 2012 were equivalent to 6,526 million metric tons of carbon dioxide. These gases include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

EPA Schedules Public Forum To Discuss Blended Effluent: On April 18, 2014, EPA announced the scheduling of a public workshop of health experts to discuss the implications of blended effluent from publicly owned treatment works (POTW) served by separate sanitary sewers into waterways. 79 Fed. Reg. 21918. “Blending” is a practice used by some POTWs to manage wastewater when flows to the plant exceed the capacity of the secondary treatment units. This happens during wet weather conditions. The forum is expected to occur in June 2014. The notice asks for recommendations of qualified experts to participate in the forum. Suggestions on experts should be made on or before May 4, 2014.

Federal Appeals Court Upholds EPA PM2.5 NAAQS: The U.S. Court of Appeals for the District of Columbia Circuit on May 9, 2014, issued a ruling upholding EPA’s National Ambient Air Quality Standards (NAAQS) for particulate matter with a diameter of 2.5 microns or less (PM2.5). EPA had lowered the NAAQS in 2013 for PM2.5 from 15 micrograms per cubic meter of air (µg/m3) to 12 µg/m3. A coalition of industry groups, led by the U.S. Chamber of Commerce and the National Association of Manufacturers, challenged the standard on the grounds that EPA had prejudged the outcome of the rulemaking and failed to consider adequately all available scientific evidence. In the decision, Nat’l Ass’n of Mfrs. v. EPA, D.C. Cir. No 13-1069, the court sided with EPA, stating that “Petitioners simply have not identified any way in which EPA jumped the rails of reasonableness in examining the science.”


FDA Issues Food Safety Modernization Act Implementation Document: On May 2, 2014, the U.S. Food and Drug Administration (FDA) issued a document titled Operational Strategy for Implementing the Food Safety Modernization Act (FSMA): Protecting Public Health by Strategic Implementation of Prevention-Oriented Food Safety Standards (Operational Strategy). FSMA was signed into law on January 4, 2011, and is intended to ensure the safety of the U.S. food supply by adopting modernized approaches to preventing food borne illness by enabling FDA to change its approach from reactive to proactive with respect to food safety problems. As part of FSMA, FDA has been active in rulemaking and issuing guidance documents since FSMA became law. This latest document is a guided outline of operational strategies FDA intends to use to continue to implement FSMA. FDA states that the drivers to change the food safety rules are based on the global expansion of the U.S. food supply chain over the past 25 years. While industry is expected to maintain a primary role and responsibility for food safety, FSMA seeks to provide FDA “a central leadership and operational role in the future global food safety system.” The Operational Strategy describes the elements FDA will use in its new approach, including advancing public health by improved reduction in the risk of food borne illness, leveraging and collaboration of resources to create a more globally integrated food safety network, and strategic- and risk-based industry oversight to expand FDA’s skills and capacities. FDA also notes that its risk-based prevention approach will depend heavily on collaborative efforts from all its departments (state and local level) and includes in the strategy the ability to plan, execute, and evaluate information in a seamless, systematic, and transparent process. A copy of the Operational Strategy is available online.


EPA Adds Twelve Sites To The National Priorities List: EPA on May 8, 2014, added seven final and five proposed sites to the National Priorities List (NPL) established under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). The seven final sites EPA added to the NPL are: MacMillan Ring Free Oil (former oil refinery) in Norphlet, AR; Keddy Mill (former sawmill, grist and wool carding mill) in Windham, ME; PCE Southeast Contamination (ground water plume) in York, NE; PCE/TCE Northeast Contamination (ground water plume) in York, NE; Unimatic Manufacturing Corporation (former chemical manufacturer) in Fairfield, NJ; Wolff-Alport Chemical Company (former metal extraction facility) in Ridgewood, NY; and Walker Machine Products, Inc. (former machine screw products manufacturer) in Collierville, TN. EPA proposed the following five sites be added to the NPL: Colorado Smelter (former smelter) in Pueblo, CO; North Shore Drive (ground water plume) in Elkhart, IN; Delta Shipyard (former boat cleaning and repair) in Houma, LA; Baghurst Drive (ground water plume) in Harleysville, PA; and Jard Company, Inc. (former capacitor manufacturer) in Bennington, VT.


DTSC Announces Priority Product Workshop: The Department of Toxic Substances Control’s (DTSC) Safer Consumer Products Program has announced several Priority Products (PP) workshops. These workshops are opportunities for members of the public to discuss the scope and content of the initial PPs with DTSC before the official rulemaking process begins. Information regarding the workshop dates and registration process is available online. In preparation for the PP rulemaking process, DTSC has released draft regulatory concepts and corresponding questions. DTSC encourages stakeholders to review these items for discussion at the workshops and welcomes written responses, which should be sent to Comments are due by June 30, 2014. Submittals that include supporting documentation and references will be especially helpful, according to DTSC.

EPA’s Jim Jones And DTSC’s Dr. Meredith Williams Share Insights At Safer Consumer Products Summit: The 4th Annual Safer Consumer Products Summit was held May 6-8, 2014, in Santa Clara, California, and with the first draft of PPs having been announced by DTSC in March 2014, the regulators, manufacturers, brand owners, and retailers gathered for the Summit were able to engage in substantive and practical discussion and learn from case studies on California’s implementation of the SCPR, the most expansive Green Chemistry law in the world. B&C was the Platinum sponsor of the Summit.

Summit Chair Lynn L. Bergeson stated in her opening remarks: “We have witnessed over the past years a dramatic shift in environmental law and policy from the regulation of end-of-pipe discharges of chemical substances into the environment (and their subsequent cleanup) to a more proactive focus on the presence of chemicals in products — especially consumer products, and disciplined efforts to make better choices about ingredient selection and smarter production decisions to prevent pollution at the source. This shift is to ensure that product design and manufacture utilize greener materials and engage in smarter manufacturing processes to lessen the environmental footprint of product manufacture and use, and ensure the sustainability of product development and use.

“The Safer Consumer Products Regulation that went into effect last October is a bold, game-changing, historic development. The regulations reflect the newest chapter in California’s implementation of its 2007 Green Chemistry Initiative. Whether the program in practice will be a faithful fulfillment of the goals underlying the Green Chemistry Initiative or evolves into something else remains to be seen. We are, after all, at the very early stages of the implementation phase of the SCP program. What is indisputable, however, is that the Safer Consumer Products Regulations are here to stay. They will have a considerable impact here in California and far beyond the state’s borders.”

Ms. Bergeson then introduced Dr. Meredith Williams, DTSC Deputy Director, who gave the Keynote Address. Dr. Williams discussed DTSC’s decision-making process with regard to its three selections in its draft initial PP list (Paint and Varnish Strippers, and Surface Cleaners containing Methylene Chloride; Spray Polyurethane Foam Systems containing Unreacted Diisocyanates; and Children’s Foam-padded Sleeping Products containing tris or tris(1,3-dichloro-2-propyl) (TDCPP)) and other DTSC efforts, including its development of a work plan identifying potential future PPs and guidance for companies to prepare alternative analysis assessments. DTSC also held on May 7, 2014, the first of three workshops related to its draft initial PP list. The other two workshops are scheduled for May 28, 2014, and June 4, 2014. You can read B&C’s memo on the draft PP list online.

Lisa R. Burchi, Of Counsel with B&C, moderated a panel discussion focused on the immediate challenges to complying with SCPR, including panelists from the consulting and legal community, as well as Chin Kuay, Senior Manager, Regulatory Compliance, Office Depot Max, and Mary-Ann Warmerdam, Regulatory Affairs Leader, Global Stewardship, The Clorox Company. The panel discussed immediate steps manufacturers and retailers are taking, how companies can prepare their long-lead-time products without knowing if or when they might be affected by a PP listing, and what steps companies should consider if there is confidential information they need to protect.

The afternoon session Keynote Address was made by Jim Jones, EPA Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP), who provided an overview of the federal chemicals management program, and the many critically important initiatives that OCSPP is spearheading to give expression to the Obama Administration’s commitment to improving chemical safety.

For copies of Dr. Williams’, Mr. Jones’, and other presentations made at the Summit please contact


ECHA Biocidal Products Committee Issues Opinion On HeiQ AGS-20: The European Chemicals Agency (ECHA) Biocidal Products Committee (BPC) adopted an opinion on April 10, 2014, concerning HeiQ AGS-20 (AGS-20). The European Commission (EC) requested an opinion on the following questions:

  1. With regard to the biocidal product AGS-20, should silver or silver adsorbed on silicon dioxide be considered as the active substance?
  2. Would this active substance meet the definition of a nanomaterial, as provided in Article 3(1)(z) of the Biocidal Products Regulation (BPR)?
  3. Finally, if this active substance meets the definition of a nanomaterial what should be its specifications?

According to the opinion, HeiQ’s claims include:

  1. The biocidal product AGS-20 is a composite material consisting of micrometer sized silicon dioxide powder with physically bound elemental silver crystallites. The elemental silver crystallites span from sub 100 nanometer (nm) range to larger than 100 nm. AGS-20 is a composite of two chemically and physically distinct phases (silver and silicon dioxide).
  2. The composite is not a reaction mass nor is it a simple mixture. It is a complex multi-component structure — a composite material.
  3. The composite material should be regarded as the active substance.
  4. As AGS-20 must be considered as a composite, it is currently not covered by the scope of the EC’s October 18, 2011, recommendation on the definition of nanomaterial with reference to recital 14. Recital 14 outlines that “… materials with internal structure or surface structure in the nanoscale such as complex nano-component nano-materials including nano-porous and nano-composite materials …” are currently not covered by the definition.
  5. AGS-20 should not be classified as a nanomaterial. The elemental metallic silver contained in AGS-20 is not manufactured separately and so fundamentally cannot be characterized alone without its inert silica support. The composite must be assessed as a whole.

The BPC reached the following conclusions with respect to the three questions in the request for an opinion:

  1. The material AGS-20 should be regarded as the biocidal active substance as it is the result of a combustion synthesis process and not just a simple mixing of the two components. It is agreed that the chemical name for the active substance should be silver adsorbed on silicon dioxide. A range for the silver content (and silicon dioxide content) should be added.
  2. AGS-20 meets the definition of a nanomaterial as provided in Article 3(1)(z) of the BPR as it is a stable aggregate with primary particles complying with the number size distribution provision.
    It is proposed that the derogation in recital 14 to Commission Recommendation 2011/696/EU does not apply to AGS-20 as the purpose of recital 14 is to outline that more complex heterogeneous nanomaterials are currently not covered by the definition.
  3. It is premature to discuss a possible (nano) specification of AGS-20 prior to the evaluation phase of the active substance under the Review Regulation. However, as for the approval of (nano) silicon dioxide under the BPR (Implenting Regulation (EU) No 408/2014), it could be outlined that AGS-20 is a stable aggregate with primary particles in the nanoscale with additional specification of particle size and volume specific surface area.

The BPC’s opinion is available online.

IARC Advisory Group Recommends Multi-Walled Carbon Nanotubes As High Priority: An International Agency for Research on Cancer (IARC) Advisory Group met on April 7-9, 2014, to recommend priorities for IARC Monographs during 2015-2019. The Advisory Group assessed the responses to a call for nominations and recommended a range of agents and exposures as high or medium priorities for assessment. According to the recommendations published in Lancet Oncology, multi-walled carbon nanotubes are a high priority for assessment — “cancer bioassay data are available from intraperitoneal injection studies, inhalation studies are ongoing; mechanistic similarities with asbestos have been noted.” IARC’s preliminary list of agents to be reviewed at its September 30-October 7, 2014, meeting includes “carbon nanotubes.” The Lancet Oncology article is available online. Registration to view the article is free.

ECHA Planning Workshop On Regulatory Challenges In The Risk Assessment Of Nanomaterials: ECHA will hold a topical scientific workshop on October 23-24, 2014, on regulatory challenges in the risk assessment of nanomaterials. The workshop will bring together experts in the field of risk assessment of nanomaterials to discuss and update scientific principles and guidelines for assessing human health and environmental risks of chemicals substances in nanoform. According to ECHA, the workshop will also provide a platform for academia and regulators to address how the main long-term challenges from the regulatory perspective can be reflected and employed in the current and future research topics on nanomaterials. The workshop will cover the following topics:

  • Challenges in regulatory risk assessment of nanomaterials;
  • Measurement and characterization of nanomaterials;
  • Metrology and dose metrics for hazard and exposure assessment throughout the life cycle;
  • Environmental fate, persistence and bioaccumulation throughout the life cycle; and
  • Read across and categories of nanomaterials.

Participation in the workshop will be by invitation only. Experts in the risk assessment of nanomaterials who wish to participate should express interest by May 15, 2014. More information is available online.

House Subcommittee Will Hold Hearing On Nanotechnology: From Laboratories To Commercial Products: The House Science, Space, and Technology Subcommittee on Research and Technology will hold a hearing on May 20, 2014, on “Nanotechnology: From Laboratories to Commercial Products.” Scheduled witnesses include:

  • Dr. Timothy Persons, Chief Scientist, United States Government Accountability Office;
  • Dr. Lloyd Whitman, Interim Director of the National Nanotechnology Coordination Office and Deputy Director of the Center for Nanoscale Science and Technology, National Institute of Standards and Technology;
  • Dr. Keith Stevenson, Professor, Department of Chemistry & Biochemistry, The University of Texas at Austin;
  • Dr. Mark Hersam, Professor, Department of Materials Science & Engineering, McCormick School of Engineering & Applied Science, Northwestern University; and
  • Mr. Les Ivie, President & CEO, F Cubed, LLC.

The hearing will be webcast live. More information is available online.


BRAG Biobased Products News And Policy Report: B&C’s 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

B&C And BRAG Session At BIO World Congress Guides Companies Through Regulatory Hurdles: B&C and BRAG presented a very informative session on Tuesday, May 13, 2014, at the BIO World Congress in Philadelphia. The session, “Commercializing Renewable Chemicals and Biobased Products: The Importance of Successfully and Efficiently Navigating the Regulatory Process,” brought together high-level EPA staff and industry leaders to inform, equip, and assist the renewable chemical community in finding the path of least resistance on the road to commercialization.

Speakers included David Widawsky, Ph.D., Director of Economics, Exposure, and Technology Division, Office of Pollution Prevention and Toxics (OPPT), EPA and Manager of Presidential Green Chemistry Challenge Awards; Tracy Williamson, Ph.D. Chief, Industrial Chemistry Branch OPPT, EPA; Nancy M. Clark, External Relations, DuPont Industrial Biosciences; and Frank Pacholec, Vice President, R&D/Corporate Sustainability Officer, Stepan Company. The program covered an overview of the 90-day EPA new chemical notification review process, tips on filling out the premanufacture notification (PMN) form — Top Ten Mistakes and How to Avoid Them, challenges posed by chemical identity/nomenclature under U.S. and European Union (EU) law, and leveraging successfully pollution prevention benefits.

BRAG is a consortium of the leading biobased and renewable chemical and chemical product companies leading efforts to drive better, more robust policies for new technologies to ensure fair, balanced, and equitable treatment for biobased chemical feedstocks and products. BRAG is focused on addressing the unique challenges biobased chemicals face under TSCA. Membership information is available at

B&C’s government affairs professionals, scientists, and legal experts have a robust practice assisting clients in biobased chemicals and biofuels. More information is available online.

D.C. Circuit Upholds 2013 Renewables Standard: On May 6, 2014, the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected challenges to EPA’s renewable fuel standard (RFS) for 2013. In the case, Monroe Energy LLC v. EPA (D.C. Cir., No. 13-1265), the court held that EPA acted within its statutory authority when it reduced the cellulosic ethanol blending requirement for 2013 but did not reduce the overall advanced biofuel mandate. Holding that there is no requirement to reduce the advanced biofuels mandate, nor any statutory prescriptions that EPA must consider in making this decision, the court ruled that EPA “reasonably concluded that it enjoys broad discretion regarding whether and in what circumstances to reduce the advanced biofuel and total renewable fuel volumes under the cellulosic biofuel waiver provision.”

EPA Issues Direct Final Rule Reducing 2013 Cellulosic Fuel Blending Requirement: On May 2, 2014, EPA issued a direct final rule requiring petroleum refiners and importers to blend 810,185 gallons of cellulosic fuels into the fuel supply in 2013 in response to petitions for reconsideration of the final rule from the American Petroleum Institute (API) and the American Fuel and Petrochemical Manufacturers (AFPA). 79 Fed. Reg. 25025. Petitioners successfully argued that cellulosic fuel production was well below EPA’s projections. Previously, EPA had mandated that the petroleum industry blend 6 million gallons of cellulosic fuels into the fuel supply under the RFS for 2013. EPA granted the motion for reconsideration because one of the two companies that EPA expected to produce cellulosic biofuel in 2013 announced shortly after EPA signed the final rule that it intended to produce significantly lower volumes of cellulosic biofuel in 2013 that it had reported to EPA. The rule will be effective on July 1, 2014, unless EPA receives relevant adverse comments by June 2, 2014.


DOT Issues Emergency Order For Transport Of Crude Oil From Bakken Shale Region: On May 7, 2014, the U.S. Department of Transportation (DOT) issued an Emergency Order requiring all railroads operating trains containing bulk quantities of UN 1267, petroleum crude oil, Class 3, that either originates or is sourced from the Bakken formation in the Williston Basin (Bakken crude oil) to notify State Emergency Response Commissions (SERCs) about the operation of these trains through their states. On the same day, DOT’s Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Safety Administration (PHMSA) also issued a joint Safety Advisory (Safety Advisory Number 2014-01) strongly urging those shipping or offering Bakken crude oil to use tank car designs with the highest level of integrity available in their fleets. The Safety Advisory was published in the Federal Register on May 13, 2014. 79 Fed. Reg. 27370. In addition, PHMSA and FRA advise offerers and carriers to the extent possible to avoid the use of older legacy DOT Specification 111 or CTC 111 tank cars for the shipment of Bakken crude oil.

Under the Emergency Order (Docket Number DOT-OST-2014-0067), each railroad that is operating a single train containing 1,000,000 gallons or more of Bakken crude oil, or approximately 35 tank cars, is required to notify within 30 days of this Order, SERCs in the states through which expected movement will occur. The notification must include estimated volumes of Bakken crude oil being transported per week through each county within the state, frequencies of anticipated train traffic, and the route through which Bakken crude oil will be transported, including identification of each county of a particular state or the equivalent state commonwealths’ jurisdiction. The Emergency Order also requires the railroads provide contact information for at least one responsible party at the host railroad to the SERCs. The Emergency Order advises railroads to assist the SERCs as necessary to share the information with the appropriate emergency responders in affected communities. Failure to comply with this Emergency Order could result in civil penalties of up to $175,000 per violation, per day. Any person willfully or recklessly violating this Order is also subject to potential criminal prosecution, which may result in fines and/or imprisonment as per 49 U.S.C. Sections 5123 and 5124.


House Subcommittee Discusses Revised Draft Chemicals In Commerce Act (CICA): On April 29, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing to review a revised draft of the CICA. Representative John Shimkus (R-IL), Chair of the Subcommittee, released the revised draft on April 22, 2014. According to Shimkus, since he first released the discussion draft in March 2014, he has been working on a bipartisan basis to find common ground to reform TSCA. More information regarding the hearing, as well as both the revised draft CICA and a redline comparison to the March 2014 discussion draft, is available online. B&C’s April 24, 2014, memorandum on the revised draft legislation is available online. B&C’s April 30, 2014, memorandum regarding the hearing is available online.

Thirteen Attorneys General Oppose State Law Preemption Provisions In CICA: The attorneys general of 13 states sent a letter on April 17, 2014, to Representative John Shimkus (R-IL), Chair of the House Energy and Commerce Subcommittee on Environment and the Economy and author of the draft CICA, opposing state preemption provisions in the draft bill. The letter states that “the draft bill’s broad preemption language would effectively eliminate the existing federal-state partnership on the regulation of toxic chemicals by preventing states from continuing their successful and ongoing legislative, regulatory and enforcement work that has historically reduced the risks to public health and the environment posed by toxic chemicals.” The attorneys general stated they support efforts to improve TSCA but oppose any legislation that contains “broad state preemption or otherwise expands the preemptive effect of TSCA.” They added that they “are deeply concerned about the TSCA Discussion Draft’s sweeping preemption of the authority of states to protect our citizens.” The letter was signed by the attorneys general of California, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington. The letter does not suggest changes to the preemption provision identified in the revised.

House Lawmakers Send Letter To EPA Opposing Proposed Rule Defining “Waters Of The United States” Under The Clean Water Act: Over 230 Representatives on May 1, 2014, sent a letter to EPA Administrator Gina McCarthy objecting to the proposed Clean Water Act (CWA) rule that would clarify federal CWA jurisdiction over the nation’s waters and wetlands. Some 19 Democrats joined with 212 of their Republican colleagues to sign the letter objecting to the April 21, 2014, proposed rule. 79 Fed. Reg. 22188. The letter requests that EPA and the U.S. Army Corps of Engineers withdraw the rule and address the “serious legal, economic, and scientific deficiencies of the proposal.” Lawmakers claim that the proposal rests on an incomplete scientific study and flawed economic analysis. The proposed rule seeks to bring under federal CWA jurisdiction all tributaries of streams, lakes, ponds, impoundments, and wetlands that affect the chemical, physical, and biological integrity of larger, navigable downstream waters. The comment period on the controversial rule closes on July 21, 2014.

House Committee Approves Bill Extending CFATS Program: The House Homeland Security Committee on April 30, 2014, approved a bill that would extend the Chemical Facility Anti-Terrorism Standards (CFATS) program. Committee members approved 14 amendments to the bill (H.R. 4007), which extends the program for three years. The bill sailed through the Committee with unanimous consent. A floor vote on the bill has not yet been scheduled.

Senate Bill Would Approve Keystone XL Pipeline: On May 1, 2014, North Dakota Senator John Hoeven (R) introduced a bill that would approve the Keystone XL pipeline under Congress’s authority enumerated in the Commerce Clause of the U.S. Constitution, Article 1, Section 8. Prior to introducing the bill, Senator Hoeven secured an opinion from the non-partisan Congressional Research Service (CRS) confirming Congress’s constitutional authority to approve the project. The measure has garnered 56 co-sponsors, and Senator Hoeven reportedly is working with Senator Mary Landrieu (D-LA) to get the requisite 60 votes to pass the bill. The legislation authorizes TransCanada to construct and operate the Keystone XL pipeline from Alberta, Canada, to the U.S. Gulf Coast, transporting an additional 830,000 barrels of oil per day to U.S. refineries, which includes 100,000 barrels a day from the Bakken region of North Dakota and Montana. The bill updates Senator Hoeven’s previously introduced legislation and would formally recognize the State Department’s final Environmental Impact Statement (EIS) released in January, which concludes that construction of the Keystone XL pipeline would have no significant impact on the environment, nor would it make any difference in the development of the Canadian oil sands. Upon passage of the bill, a Presidential permit would no longer be needed to approve the project.

Senator Rockefeller Introduces Two Bills Aimed At Spurring Development Of “Clean Coal”: Senator Jay Rockefeller (D-WV) on May 5, 2014, introduced two bills designed to expand the scope of the state’s coal industry while balancing the need to limit GHG emissions. The bills represent Senator Rockefeller’s effort to advance the commercial deployment of clean coal technologies. The two bills — the Carbon Capture and Sequestration Deployment Act of 2014 (S. 2287) and the Expanding Carbon Capture through Enhanced Oil Recovery Act of 2014 (S. 2288) — would invest in federal carbon capture and sequestration (CCS) research and development; expand tax credits for innovative companies investing in CCS technologies; and create loan guarantees for construction of new CCS facilities and retrofits of existing facilities that utilize CCS, among other provisions. The Carbon Capture and Sequestration Deployment Act of 2014 seeks to facilitate the development and commercial deployment of CCS technologies. It would authorize $1 billion over 15 years for a cooperative industry-government research and development program in the Department of Energy’s (DOE) Office of Fossil Energy. The goal of this program is to demonstrate novel and innovative technologies to capture, use, or store carbon dioxide. Industry partners would be required to match up to 20% of the government’s investment. This type of program would be in addition to the DOE’s existing research programs, including those implemented by the National Energy Technology Laboratory (NETL). The bill would also require an annual DOE report to assess the fossil energy program and the current state of CCS deployment, and make recommendations to speed deployment. The title would also require a Government Accountability Office review of DOE’s efforts. The bill would also modify Section 45Q of the Internal Revenue Code to provide a tax credit for each metric ton of qualified carbon dioxide that is captured and sequestered. The existing credit is capped and available on a first come – first served basis. Senator Rockefeller’s bill would allow projects to apply for a guaranteed allocation of credits for future use. The bill would authorize $20 billion in loan guarantees to be used for the construction of new commercial-scale electric generation units or industrial facilities utilizing CCS technology; the retrofit of existing commercial-scale electric generation units or industrial facilities utilizing CCS technology; and the construction of carbon dioxide transmission pipelines. The Expanding Carbon Capture through Enhanced Oil Recovery Act of 2014 provides tax credits for CCS deployment. It expands and reforms the existing Section 45Q Tax Credit for Carbon Sequestration to advance capture technology through the greater use of carbon dioxide enhanced oil recovery (CO2-EOR) in the United States. A decades-old, proven commercial practice, CO2-EOR involves injecting carbon dioxide into already developed oil fields to coax additional production. According to the NETL, increasing the supply of carbon dioxide captured from man-made sources has the potential to increase American oil production by tens of billions of barrels, while safely storing billions of tons of carbon dioxide underground.

Senator Murkowski Seeks To Link Energy And Water Issues: Senator Lisa Murkowski (R-AK) on May 6, 2014, launched an effort via a speech and a white paper to initiate more discussion at the federal level about the interdependence of energy and water. Senator Murkowski called for federal leadership but through coordination of knowledge, research, and development. The Senator’s white paper, The Energy-Water Nexus: Interlinked Resources That Are Vital For Economic Growth And Sustainability, offered five recommendations: address data gaps on energy-for-water and water-for-energy uses; promote federal leadership and public-private partnerships; document and publicize best practices; encourage generation and adoption of more efficient technologies and practices; and coordinate at the federal level energy and water issues.

House Committee Passes A Bill To Avoid Future Delays Similar To Keystone Pipeline Decision: On May 8, 2014, the House Energy and Commerce Committee approved a bill that seeks to avoid future delays on pipeline approval projects. The North American Energy Infrastructure Act (H.R. 3301) passed by a vote of 31-19. It would end the current approval process requiring the U.S. Department of State to issue a Presidential permit for the construction or modification of oil and natural gas pipelines. The bill would require the Secretary of Commerce, with respect to oil pipelines, the Federal Energy Regulatory Commission (FERC), with respect to natural gas pipelines, or the Secretary of Energy (DOE), with respect to electric transmission facilities, to approve a request for approval of construction, connection, operation, or maintenance unless it is not in U.S. national security interests. The bill also provides that such approvals would not be construed to constitute a major federal action for purposes of environmental review under the National Environmental Policy Act of 1969 (NEPA).

House Bill Would Delay Mercury Air Toxics Standard For Five Years: Representative Kevin Yoder (R-KS) on May 12, 2014, introduced a bill that would delay for five years the implementation of EPA’s Mercury Air Toxics Standard (MATS). The Lower Electric Bill Act of 2014 (H.R. 4654) would also require that EPA conduct a study of the economic effects of the rules on “local communities,” which is undefined in the legislation. The bill is unlikely to move to the House floor for a vote.

Senators Introduce Trio Of Bills To Improve Management Of Nuclear Reactors And Spent Fuel: On May 13, 2014, Senators Barbara Boxer (D-CA), Ed Markey (D-MA), and Bernie Sanders (I-VT) introduced three bills that seek to improve the safety and security of decommissioning nuclear reactors and the long-term storage of spent nuclear fuel. The legislation would ensure that nuclear reactors are safely decommissioned and are no longer a liability for local communities and that spent nuclear fuel is safely managed, Senator Boxer stated. The bills would also increase state and local community involvement in decommissioning plans. The bills are the Safe and Secure Decommissioning Act (S. 2324), the Dry Cask Storage Act (S. 2325), and the Nuclear Plant Decommissioning Act (S. 2326). The Environment and Public Works Committee, which Senator Boxer chairs, held a hearing on May 14, 2014, on the issue of improving safety and decommissioned nuclear power plants.

Senate Subcommittee Holds Hearing On Polluted Stormwater Runoff From Transportation Projects: On May 13, 2014, the Senate Environment and Public Works Subcommittee on Water and Wildlife held a hearing on the impact of polluted stormwater from transportation infrastructure projects. Subcommittee Chair Ben Cardin (D-MD) stated that he will introduce language for the upcoming multi-year highway and transit reauthorization bill that would require stormwater design standards to be part of federally funded transportation projects. The witness list and their testimonies, along with an archived webcast of the hearing, are available online.


White House Releases National Climate Assessment Report Concluding That Climate Change Is Having Dramatic Effects Now On Every Part Of The U.S.: With much fanfare, on May 6, 2014, the Obama Administration released the Third U.S. National Climate Assessment. The assessment is available online. According to the White House, the assessment is “the most authoritative and comprehensive source of scientific information to date about climate-change impacts across all U.S. regions and on critical sectors of the economy.” The report, a key deliverable of President Obama’s Climate Action Plan, is the culmination of four years of work by hundreds of experts from government, academia, corporations, and public-interest organizations. The assessment “confirms abundant data and examples that climate change isn’t some distant threat — it’s affecting us now,” the White House stated. Not only are the planet and the nation warming on average, but a number of types of extreme weather events linked to climate change have become more frequent or intense in many regions, including heat waves, droughts, heavy downpours, floods, and some kinds of destructive storms, stated Dr. John Holdren, Assistant to the President for Science and Technology. The issuance of the report in a Congressional election year highlights the fact that climate change will appeal to the Democratic Party’s liberal base, which many political pundits believe must show up in full force during this fall’s elections if the party is to hold a majority in the Senate.

Chemical Safety Board Releases Preliminary Findings Into 2013 West Fertilizer Fatal Explosion: On April 22, 2014, the Chemical Safety Board (CSB) released preliminary findings into the April 17, 2013, West Fertilizer explosion and fire in West, Texas, which resulted in 14 fatalities, 226 injuries, and widespread community damage. Large quantities of ammonium nitrate fertilizer exploded after being heated by a fire at the storage and distribution facility. The CSB’s investigation found that at the state level, there is no fire code and in fact counties under a certain population are prohibited from having them. CSB also stated that it found at all levels of government a failure to adopt codes to keep populated areas away from hazardous facilities. CSB claims to have found 1,351 facilities across the country that store ammonium nitrate. Chairman Moure-Eraso called on states and counties across the country to take action in identifying hazards and requiring the safe storage and handling of ammonium nitrate, stating that: “Regulations need to be updated and new ones put in place. The state of Texas, McLennan County, OSHA and the EPA have work to do, because this hazard exists in hundreds of locations across the U.S. However, it is important to note that there is no substitute for an efficient regulatory system that ensures that all companies are operating to the same high standards. We cannot depend on voluntary compliance.”

SEC Issues Guidance On Conflict Minerals Rule: On April 29, 2014, the Securities and Exchange Commission (SEC) issued guidance on its conflict minerals reporting requirements. According to the guidance, the SEC expects companies to file any reports required under Rule 13p-1 on or before the due date. Companies that do not need to file a Conflict Minerals Report should disclose their reasonable country of origin inquiry and briefly describe the inquiry they undertook. Companies need not describe their products as “DRC [Democratic Republic of Congo] conflict free,” “not been found to be ‘DRC conflict free,'” or “DRC conflict undeterminable.” The guidance reflects the court’s ruling in Nat’l Ass’n of Mfrs. v. SEC, No. 13-5252 (D.C. Cir., Apr. 14, 2014). SEC’s “Statement on the Effect of the Recent Court of Appeals Decision on the Conflict Minerals Rule” is available online.

SEC Issues Partial Stay Of Conflict Minerals Rule: On May 2, 2014, SEC issued an order staying the effective date for compliance with the portions of Securities Exchange Act Rule 13p-1 and Form SD that would require statements by issuers that the Court of Appeals held would violate the First Amendment as determined in Nat’l Ass’n of Mfrs. v. SEC, No. 13-5252 (D.C. Cir., Apr. 14, 2014). In its order, SEC denied the motion filed by the National Association of Manufacturers, Chamber of Commerce, and Business Roundtable for a stay of the entire rule. The Commission stated that a stay of these portions of the rule avoids the risk of First Amendment harm pending further proceedings. SEC also stated that staying only these portions of the rule furthers the public’s interest in having issuers comply with the remainder of the rule, which was mandated by Congress and upheld by the Court of Appeals. For more detailed guidance regarding compliance, the order refers issuers to the statement issued by SEC staff on April 29 and any further guidance subsequently provided.

Court Denies Stay Of Conflict Minerals Rule: The U.S. Court of Appeals for the District of Columbia Circuit on May 14, 2014, denied an emergency motion filed by three trade groups to stay the SEC’s conflict minerals rule. In its brief per curiam order, the court did not detail the reason for its decision. Securities Exchange Act Rule 13p-1 requires companies and foreign private issuers in the U.S. to disclose their use of so-called conflict minerals — gold, tantalum, tin, and tungsten from the DRC and adjacent countries — if those minerals are ”necessary” to a product made by the companies. The first disclosures must be submitted to SEC by June 2, 2014. The D.C. Circuit Court of Appeals on April 14, 2014, found parts of the rule unconstitutional but SEC has since stated it will implement other portions of the regulation upheld by the court (Nat’l Ass’n of Mfrs. v. SEC, D.C. Cir., No. 13-5252).

President Obama Announces Commitments And Executive Actions To Advance Solar Deployment And Energy Efficiency: On May 9, 2014, President Obama announced more than 300 private and public sector commitments to create jobs and cut carbon pollution by advancing solar deployment and energy efficiency. The commitments represent more than 850 megawatts of solar deployed — enough to power nearly 130,000 homes — as well as energy efficiency investments that will lower bills for more than one billion square feet of buildings. Additionally, the President announced new executive actions that the White House claims will lead to $2 billion in energy efficiency investments in federal buildings; smarter appliances that will cut carbon pollution by more than 380 million metric tons — equivalent to taking 80 million cars off the road for one year — and will save businesses nearly $26 billion on their energy bills; and training programs at community colleges across the country that will assist 50,000 workers to enter the solar industry by 2020.

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