Federal/EPA Regulatory Policy

Lynn L. Bergeson, "Due diligence in mergers and acquisitions involving chemical products," Financier Worldwide, October 2022.

The scope of what diligence is due in any corporate transaction has evolved greatly over the past decade, particularly with respect to transactions involving chemical products. Once upon a time, transactional due diligence involving chemical products, whether ‘neat’ (pure) chemicals, formulations or end-use products, typically consisted of a phase I or phase II environmental site assessment (ESA) focusing on identifying contamination derivative of chemical releases into environmental media as effluent, emissions, fugitive releases or waste, as well as quantifying the potential for such releases to pose litigation risks or regulatory enforcement, or require costly remediation. Increasingly, parties to corporate transactions now continue to focus on these liabilities and on the compositional elements of chemical products themselves as potential sources of liability and commercial disruption. This article explains why the transition to chemical product due diligence has been slow and offers a few tips to help assess what diligence is due in corporate transactions involving chemical products.

Lynn L. Bergeson, "EPA Seeks Input From Small Businesses," Chemical Processing, August 1, 2022.

The U.S. Environmental Protection Agency (EPA) invited on July 6, 2022, small businesses to participate as Small Entity Representatives (SER) for a Small Business Advocacy Review (SBAR) panel. The EPA seeks self-nominations directly from entities that may be subject to the rule requirements; self-nominations were due July 20, 2022. The panel focuses on the agency’s proposed rule to collect data to inform each step of the Toxic Substances Control Act (TSCA) risk evaluation and risk management process. Participating in the SBAR, or at least tracking its activities and engaging as much as possible, is encouraged. The reasons for engagement are discussed in this article.

Lynn L. Bergeson, "How does a recent Supreme Court ruling apply to the EPA’s implementation of TSCA?," Chemical Watch, July 27, 2022.

Since the US Supreme Court issued its blockbuster ruling in West Virginia v EPA, 597 US _ 2022 WL 2347278 (30 June 2022), many are asking whether the Court’s amplification of the 'major questions doctrine' (MQD) might be used to seek to limit the US EPA’s authority in implementing Congress’s 2016 amendments to TSCA, the Frank R Lautenberg Chemical Safety for the 21st Century Act (Lautenberg). Lynn L Bergeson, managing partner of the law firm Bergeson & Campbell, says there's little doubt that West Virginia v EPA will be used to seek to limit the agency's authority in implementing the 2016 amendments to the law. 

Lynn L. Bergeson, "Chemical Compliance: Get Ready For Superfund Excise Tax," Chemical Processing, June 22, 2022.

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA), reinstating the Superfund excise tax on certain chemical substances under Sections 4661 and 4671 of the Internal Revenue Code (Tax Code). Effective July 1, 2022, the tax many were glad to see expire is back; the first deposit of the tax is due on July 29, 2022. This article discusses the tax and the challenges it poses.

Lynn L. Bergeson, "Environmental Justice and Enforcement in America: what investors need to know," Financier Worldwide, July 2022.

By any standard, federal enforcement of environmental laws in the US has been uneven, to say the least. The prevailing perception is that democrats are ‘greener’ than are republicans when it comes to environmental enforcement. The data is quite scattered, however, and it would seem no party has cornered the environmental protection market. The Trump administration may be the exception that proves the rule.

Most would agree civil and criminal enforcement case numbers were significantly below those of other administrations, all by design. A raft of other actions taken by the Trump administration crystallised that environmental enforcement was definitely not top of mind. Priorities today are decidedly different, and investors need to know the implications of the Biden administration’s commitment to the twin goals of environmental protection and environmental justice. This article explores these topics.

Lynn L. Bergeson, "Isn’t It Ironic?," American College of Environmental Lawyers (ACOEL) Blog, January 25, 2022.

The Biden Administration’s U.S. Environmental Protection Agency (EPA) is laser focused on achieving several “whole-of-government” priorities: addressing climate change, identifying and giving environmental justice greater consideration in decision-making, and following the science wherever it may lead. Knowing and respecting leadership in the Office of Chemical Safety and Pollution Prevention (OCSPP) tasked with achieving these laudable yet daunting objectives, there is no question the commitment is genuine. It is ironic, however, that EPA is applying the Toxic Substances Control Act (TSCA) in ways that are counterproductive to achieving these goals.

Lynn L. Bergeson, "Environmental Protection: Infrastructure Law Benefits Chemical Industry," Chemical Processing, December 14, 2021.

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (H.R. 3684). The House passed the bill on November 5, 2021, by a vote of 228 to 206, and the Senate passed the bill on August 10, 2021, by a vote of 69 to 30. The bill provides a $1.2-trillion infusion of cash into the economy and contains many provisions important to the chemical processing sector. Highlighted below are some of the provisions in the 1,039-page bill that readers may find interesting.

Lynn L. Bergeson, "Straddling digital and environmental goals: tips for investors," Financier Worldwide, January 2022.

The environmental impacts of the digital economy are increasingly the focus of attention and concern. There is no question the demand for electricity, water and land have increased sharply in response to the growth in digital activity. Identifying, quantifying and mitigating environmental and ecological impacts are core to value creation, and investors must be mindful of how a company is positioned to create value while avoiding public rebuke for neglecting to account for the environmental impacts of greatly increased digital activity.

This article explores the digital economy, the growing set of metrics used to assess environmental sustainability in a digital economy, the tools companies are using to improve efficiency, lessen environmental impacts and increase supply chain transparency and traceability, and tips for investors in assessing a company’s environmental awareness of the impacts of greatly increased digital activity.

Lynn L. Bergeson, "EPA Expands TRI Reporting Rules," Chemical Processing, May 17, 2021.

The U.S. Environmental Protection Agency (EPA) announced on April 29, 2021, that it will be “taking important steps under the Toxics Release Inventory (TRI) to advance environmental justice, improve transparency, and increase access to environmental information.” The EPA plans to expand the scope of TRI reporting requirements to cover additional chemicals and facilities, including those not currently reporting ethylene oxide (EtO) releases. The agency also announced enhancements to its TRI reporting tools, but this article will focus on the chemical expansion effort and why it is significant.

Lynn L. Bergeson, "EPA Eyes Stricter Phosphogypsum Rule," Chemical Processing, April 21, 2021.

In early April, a Florida pond that sits atop phosphogypsum tailings sprung a leak. State authorities scrambled to keep the pond from collapsing and flooding the surrounding area with millions of gallons of contaminated water. This situation likely wasn’t top of mind on February 8, 2021, when a group of environmental protection advocates prepared and submitted to the U.S. Environmental Protection Agency (EPA) a petition under Section 21 of the Toxic Substances Control Act (TSCA). The petition seeks to reverse the EPA’s 1991 “Bevill” regulatory determination excluding phosphogypsum and process wastewater from phosphoric acid production (process wastewater) from hazardous waste regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The timing of the Florida near-catastrophe could not be more ironic.

Lynn L. Bergeson, "The importance of regulatory diligence in funding," Financier Worldwide, April 2021.

Lawyers counselling companies in the biotechnology, biopesticide and related crop protection and industrial biotechnology areas appreciate the critically important role federal agencies play in ensuring the success of start-up businesses.

Federal agencies, including the US Environmental Protection Agency (EPA) and the US Food and Drug Administration (FDA), among others, wield enormous power over businesses that require premarket product approval. While we product approval practitioners know this, it comes as a bit of a surprise when investors, poised to make multimillion-dollar investments in start-up businesses, neglect to focus on the regulatory integrity of the start-up. This lack of focus invites costly mistakes. This article explains why, and how to avoid making these mistakes.

Lynn L. Bergeson, "What Might EHS Expect from the Biden EPA?," EHS Daily Advisor, March 10, 2021.

As a new administration arrives in Washington, D.C., few things are certain except that 2021 is sure to be an eventful year.

While underlying partisan jockeying and prospects for bipartisan cooperation will greatly affect what may happen in the more limited context of chemical regulation, the Biden administration has already laid out priorities on the environment that will surely influence the U.S. Environmental Protection Agency’s (EPA) positions on climate change, the role of science, and regulation in general.

Richard E. Engler, Ph.D. and Jeffery T. Morris, Ph.D., "Why the US EPA can, and should, evaluate the risk-reducing role a new chemical may play if allowed on the market," Chemical Watch, February 22, 2021.

In the 21st century, we take as given a continuous stream of new and better products. From electronics to building materials to transportation solutions, the flow of new and better products and applications seems unending. New chemical substances play a fundamental role in creating those products and making existing products better. If the pipeline of new chemicals were closed off, the flow of new products and applications would slow to a trickle and eventually dry up. Modern life as we know it would not exist without the continued invention, production and use of new chemicals.

Lynn L. Bergeson, "Pandemic Spurs Enforcement Revisions," Chemical Processing, October 26, 2020.

The White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) issued memorandum M-20-31 on August 31, 2020, on the implementation of Section 6 of Executive Order (EO) 13924, “Executive Order on Regulatory Relief to Support Economic Recovery.” This article explains the guidance, why it may prove useful to know about its content, and how to leverage the guidance successfully in future enforcement actions and adjudications.

Lynn L. Bergeson, "EPA Axes Temporary Enforcement Lull," Chemical Processing, July 22, 2020.

The U.S. Environmental Protection Agency (EPA) issued in March a temporary enforcement policy relaxing certain compliance obligations because of the COVID-19 pandemic. On June 29, the agency announced an “addendum on termination” that aims to end the policy on August 31, 2020. This column discusses the termination memorandum.

Lynn L. Bergeson, "Compliance: Talk To Your Supply Chain," Chemical Processing, May 13, 2020.

Much attention now focuses on COVID-19 and subsequent supply chain disruptions; here, we tackle supply chain communications and ways to optimize them. The Toxic Substances Control Act (TSCA) requires such communications, as do evolving best business practices. Managing supply chain communications effectively, and strategically optimizing the commercial interactions and exchanges of information they elicit are essential business practices.

Lynn L. Bergeson, "Risk evaluations under TSCA: The state of play," Specialty Chemicals Magazine, December 2019/January 2020.

Among the changes when the Toxic Substances Control Act (TSCA) was amended by the Frank R. Lautenberg Chemical Safety Act for the 21st Century, also known as Lautenberg or ‘new TSCA’, none is more consequential than the requirement that the US Environmental Protection Agency (EPA) conduct risk evaluations for ‘high priority’ chemical substances. We are now three years into new TSCA and this is being done, amid spirited debate and, inevitably, litigation.

Lynn L. Bergeson, "EPA Issues New Accidental Release Rule," Chemical Processing, December 20, 2019.

On November 20, 2019, the U.S. Environmental Protection Agency (EPA) signed off on final changes to the risk management program (RMP) rule, most recently amended in January 2017. The regulations were promulgated under Section 112(r) of the Clean Air Act (CAA) when the law was amended in 1990. This section is intended to prevent or minimize the consequences of accidental chemical releases. A need to prevent or minimize the catastrophic consequences of accidental chemical release is a point few would argue. How best to “prevent or minimize,” however, has evoked exhausting debate and legal wrangling. This column summarizes key changes in the reissued final rule.

Lynn L. Bergeson, "SEC Proposes Changes To Reporting Rules," Chemical Processing, October 16, 2019.

Publicly traded companies must disclose certain legal proceedings and risk factors in registration statements and in annual and quarterly reports. These disclosures significantly help investors in assessing the financial integrity of a publicly traded company; formulating a disclosure precisely is critical to compliance, while at the same time accurately capturing the nature and extent of the potential risks. This article summarizes this Securities and Exchange Commission (SEC) proposed rule, which is intended to modernize the Regulation S-K obligations, particularly as they relate to environmental disclosures, and discusses the unique challenges these reporting obligations impose on the chemical industry.

Lynn L. Bergeson, "Expert Focus: TSCA and Liability under the False Claims Act – a Potentially Promising Area," Chemical Watch, July 26, 2019.

A federal appellate court recently decided a case brought under the FCA’s reverse false claims provision premised on alleged non-compliance with a TSCA reporting obligation. Kasowitz Benson Torres LLP v. BASF Corp. As discussed in this article, while the court dismissed the case, it did so for fact-specific reasons and creative plaintiff lawyers can be expected to rely upon the FCA in the future to bring actions based on other TSCA provisions.

Lynn L. Bergeson, "USDA Enhances Biobased Procurement Program," Chemical Processing, July 16, 2019.

The U.S. Department of Agriculture (USDA) published a final rule on July 5, 2019, amending its “Guidelines for Designating Biobased Products for Federal Procurement” to include 30 more product categories for biobased products that may receive procurement preference by federal agencies and their contractors. These 30 product categories contain finished products made, in large part, from intermediate ingredients designated for federal procurement preference. This article explains why Chemical Processing readers should note this important development.

Lynn L. Bergeson, "GAO Evaluates EPA Performance," Chemical Processing, March 18, 2019.

The U.S. Government Accountability Office (GAO) released on March 6, 2019, a report titled “High-Risk Series: Substantial Efforts Needed to Achieve Greater Progress on High-Risk Areas.” This column discusses the report and its implications on chemical management policy.

Lynn L. Bergeson, "Changing of the Guard," Specialty Chemicals Magazine, March 2019.

The 2018 US mid-term elections have redefined the political winds in Washington, DC. What these currents mean for domestic chemical policy, and its impact on global chemical policy initiatives, is unclear. 

Lynn L. Bergeson, "Political Turmoil Muddies Regulatory Moves," Chemical Processing, January 16, 2019.

2019 started with a political bang. The President’s decision to allow a partial government shutdown in the absence of funding for the “wall” will continue to inspire federal administrative and regulatory havoc for months to come. This is particularly true of the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) as it administers the programs under the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), both of which maintain hugely important fees-for-service programs.

Lynn L. Bergeson, "A Glimpse of Things to Come: OSHA’s Soon to Be Updated Hazard Communication Standard," Environmental Quality Management, Volume 28, Issue 2, Winter 2018.

In the Trump Administration’s Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda) issued on October 17, 2018, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) published a Proposed Rule Stage item titled, “Update to the Hazard Communication Standard,” RIN 1218-AC93 (OSHA, 2018), and scheduled the Notice of Proposed Rulemaking (NPRM) to be issued by March, 2019. This could be an important regulatory development for all entities subject to Hazard Communication Standard (HCS) requirements, which is just about everyone. This column explains why this development is significant.

Lynn L. Bergeson, "Compliance: CDR Rule Shows Room for Improvement," Chemical Processing, September 19, 2018.

This summer, the U.S. Environmental Protection Agency’s Office of Inspector General (OIG) issued a report titled “EPA’s Chemical Data Reporting Rule Largely Implemented as Intended, but Opportunities for Improvement Exist.” The OIG conducted an audit to determine how the EPA is ensuring companies are compliant with the Chemical Data Reporting (CDR) rule under the Toxic Substances Control Act (TSCA), and whether the EPA uses CDR data to prioritize chemicals for the purpose of identifying their potential risks to human health and the environment. The OIG found that implementing policies for data quality checks will help tailor the information reported to meet the EPA’s needs. This column discusses the report.

Lynn L. Bergeson, "The Trump Administration and global chemical issues," Elements, the Magazine of Chemicals Northwest, Summer 2018.

This article reviews the Trump Administration’s engagement, to date, in key industrial chemical matters, domestically and internationally.  Topics include the Toxic Substances Control Act (TSCA), the UN’s Strategic Approach to International Chemicals Management (SAICM) and 2030 Agenda for Sustainable Development, and Ratification of the Stockholm Convention on Persistent Organic Pollutants.

Lynn L. Bergeson, "The New Administration and International Chemical Issues," Environmental Quality Management, Volume 27, Issue 4, Summer 2018.

As a candidate and now as president, President Trump has been uncharacteristically predictable in systematically dismantling signature environmental policies of prior administrations and ceding the United States’ leadership in combating climate change to other global powers. The administration’s industrial chemicals management policy has been less transparent and predictable, however. Some may have interpreted candidate Trump’s notable silence on the campaign trail as support for Toxic Substances Control Act (TSCA) reform, given the broad bipartisan support it enjoyed before its enactment on June 22, 2016. Others may have assumed that candidate Trump was simply unaware of the enactment of the most sweeping legislative changes to our domestic chemical management law in four decades and the significant commercial, legal, and trade implications occasioned by enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg). President Trump has kept his TSCA cards close to his vest, and the administration’s broader engagement in chemicals management on the world stage is similarly unclear. Some trends can be discerned, or at least inferred, as discussed in this article.

Lynn L. Bergeson, "U.S. Consumer Product Ingredient Disclosure Measures Pick Up Momentum," International Chemical Regulatory and Law Review, Volume 1, Issue 2, 2018.

The ‘right-to-know’ has been a foundational element of U.S. environmental law and policy for decades. As more information becomes known about the potential health and environmental impacts of chemical substances in industrial, commercial, and especially consumer products, the public’s interest in product ingredients has sharply increased. Recently this interest has taken a new direction, one targeting consumer cleaning products. Two state initiatives, originating in opposite sides of the country, reflect different approaches to compelling product ingredient disclosure, and portend similar state measures elsewhere. Consumer product manufacturers are bracing for renewed challenges in preserving consistent product labeling and maintaining confidential business information (CBI). Information-saturated consumers likely do not know what to think as they sort through ever more detailed product information. How these state measures might impact European manufacturers and trade and commerce in general remain to be seen. Here is an overview of the new measures and their implications.

Lynn L. Bergeson, "Ongoing Concern: EPA Proposes to Lower Dust-Lead Hazard Standards," Manufacturing Today, Volume 18, Issue 5.

Reducing childhood lead exposure has long been a focus of the U.S. Environmental Protection Agency (EPA). The Flint, Mich., water crisis has inspired renewed concerns with lead exposure and heightened attention on the hazards occasioned by exposure to dust and dust-lead, especially exposure to children. On July 2, 2018, EPA proposed to lower the dust-lead hazard standards for homes with dust-lead issues. This column summarizes the proposal.

Lynn L. Bergeson, "EPA Continues to Investigate Engineered Nanomaterials in Industrial Wastewater Discharge," Nanotechnology Now, May 2, 2018.

On May 2, 2018, the U.S. Environmental Protection Agency (EPA) published a Federal Register notice announcing publication of its Final 2016 Effluent Guidelines Program Plan. The Plan describes EPA's Clean Water Act rulemakings and other actions intended to control industrial wastewater pollution. 

Lynn L. Bergeson, "TSCA tips for European chemical stakeholders," Elements, the Magazine of Chemicals Northwest, Spring, 2018.

Changes to the Toxic Substances Control Act (TSCA) occasioned by enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act have fundamentally changed the way the US Environmental Protection Agency (EPA) reviews new and assesses existing chemical substances in surprising and subtle ways. Our 26-professionals TSCA practice in Washington, D.C. has been “doing TSCA” for a very long time. We offer our European colleagues practical insights into the new law and EPA’s implementation efforts. As we represent many European companies that have business interests in the U.S., our views are offered from a practical perspective.

Lynn L. Bergeson, "EPA Proposes TSCA User Fees," Environmental Quality Management, Volume 27, Issue 3, Spring 2018.

We all knew it was coming, and the proposal has finally arrived. On February 8, 2018, the US Environmental Protection Agency (EPA) announced that EPA Administrator Scott Pruitt signed a proposed rule regarding user fees for the administration of the Toxic Substances Control Act (TSCA). As amended by the Frank Lautenberg Chemical Safety for the 21st Century Act, TSCA provides the EPA the authority to levy fees on certain chemical manufacturers, including importers and processors, to “provide a sustainable source of funding to defray resources that are available for implementation of new responsibilities under the amended law” (EPA, 2018a, p. 1). This column summarizes the proposal and explains why it is significant.

A downloadable and printable version of this article is available here

Lynn L. Bergeson, "Citizens Challenge EPA," Chemical Processing, March 21, 2018.

A petition filed under Section 21 of the Toxic Substances Control Act (TSCA) was one of the first actions reviewed by a federal district court since TSCA was substantially rewritten in June 2016.The rulings described below pose interesting and potentially formidable challenges for TSCA stakeholders.

Lynn L. Bergeson and Bethami Auerbach, "Innovation, Consumer Products, and Legal Risk: Points to Consider," Paper presented at the 2017 Retail Law Conference, October 12, 2017.

Products that embody tried, true, and especially cutting-edge technologies are generally embraced by retailers as sure-fire pathways to marketing success. What’s not to like about best sellers and newer, faster, cleaner, or otherwise improved products? Sometimes overlooked is what is hidden behind the technology curtain -- what is the secret sauce that makes the product faster, cleaner, or better? In marketing products with new modes of action and spiffy new attributes, retailers are part of a product liability chain of which they need to be aware. This paper provides an overview of emerging legal and practical issues pertinent to the inclusion of technologies supporting products marketed to the public.

Lynn L. Bergeson, James V. Aidala, Jr., Charles M. Auer, Richard Engler, and Oscar Hernandez, "Practitioner Insights: Enhancing TSCA Reform Implementation," BNA Daily Environment Report, August 2, 2017.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act significantly amended the Toxic Substances Control Act. The act, which has been in force for just over a year, made substantive changes to multiple sections of TSCA that are proving to be even more consequential than anticipated (new TSCA is identified as Pub. L. No. 114-182 and old TSCA was identified as Pub. L. No. 94-469).

This paper, authored principally by former EPA officials and a practicing TSCA lawyer, all with long experience under old TSCA, provides suggestions for new approaches or ‘‘fixes’’ that could assist the agency and interested groups in moving toward smoother implementation of the new law, achieving policy goals, and ensuring greater transparency. These suggestions are presented in no particular order and in the spirit of urging other stakeholders to also think of creative ways to ensure that new TSCA fulfills Congress’s mandate to develop an effective domestic chemical management program.

Lynn L. Bergeson and Timothy D. Backstrom, "Appellate Court Vacates Conditional Nanosilver Registration," ABA Section of Environment, Energy, and Resources PCRRTK Newsletter, Volume 18, Issue 5, August 2017.

On May 30, 2017, the U.S. Court of Appeals for the Ninth Circuit responded to two petitions for review of the U.S. Environmental Protection Agency’s (EPA) conditional registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of a nanosilver pesticide product and vacated that conditional registration. NRDC v. EPA, No. 15-72308. The Natural Resources Defense Council (NRDC), the Center for Food Safety (CFS), and the International Center for Technology Assessment (ICTA) filed petitions in 2015 asking the court to set aside EPA’s final order granting a conditional registration for a nanosilver containing antimicrobial pesticide product named NSPW-L30SWS (NSPW). The court vacated the conditional registration because, according to the court, “EPA failed to support its finding that NSPW was in the public interest.”

Lisa M. Campbell, Timothy D. Backstrom, and James V. Aidala, "EPA’s Evaluation and Determination of Epidemiological Data for Chlorpyrifos," ABA Section of Environment, Energy, and Resources PCRRTK Newsletter, Volume 18, Issue 5, August 2017.

Among the many legal, regulatory, and policy issues being watched closely by pesticide registrants as the U.S. Environmental Protection Agency’s (EPA) long and contentious review of chlorpyrifos registrations continues is the controversy concerning when EPA may appropriately apply a tenfold uncertainty factor pursuant to the Food Quality Protection Act (FQPA 10X). This issue centers around EPA’s novel and unprecedented use of epidemiological data and the statutory requirements that govern EPA’s determination that sufficient uncertainty exists to warrant applying the FQPA 10X, not only to chlorpyrifos itself, but to all organophosphate (OP) pesticide products. This issue has drawn much attention and concern from pesticide registrants, and from other interested parties. The issues directly affecting chlorpyrifos have played out not only in EPA’s registration review process for chlorpyrifos, but also in a court challenge to EPA’s decision.

Lynn L. Bergeson, "The Final Rule," Manufacturing Today, July 21, 2017.

The U.S. Environmental Protection Agency (EPA) issued on Jan. 12, 2017, a final rule under Section 8(a) of the Toxic Substances Control Act (TSCA) establishing reporting and recordkeeping requirements for certain discrete forms of chemical substances that are manufactured or processed at the nanoscale. This column summarizes the rule.

Lynn L. Bergeson, "EPA Issues TSCA Framework Rules," Chemical Processing, July 18, 2017.

The U.S. Environmental Protection Agency (EPA) issued in June final framework rules under the Toxic Substances Control Act (TSCA). Each is summarized in the article.

Lynn L. Bergeson, "The Trump Administration and Likely Impacts on Environmental Law and Policy," Environmental Quality Management, Volume 26, Issue 4, Summer 2017.

2016 was full of surprises, two of which are driving much of the environmental agenda for the U.S. Environmental Protection Agency (EPA) in 2017.  First, Congress significantly amended the Toxic Substances Control Act (TSCA) in June of 2016.  The changes are intended to reform the program to address the widely recognized deficiencies in the law, especially regarding existing chemicals, chemical testing, Confidential Business Information (CBI) claims, and preemption of state actions.  EPA has been busy implementing the new law, as the all-important “framework rules” must be issued in final in June 2017.  The second surprise event was even more unexpected -- the election of Donald Trump as President.  His election is already having a significant impact on environmental law and policy.  This column briefly offers some thoughts and predictions on the impact of the new Administration on environmental issues of interest to our readers.

Lynn L. Bergeson, Daniel B. González, Anabela Aldaz, and Christopher J. McNevin, "Mini-Roundtable: Environmental Disputes," Corporate Disputes, July-September, 2017.

A major change, brought about by the November elections, is the uptick in citizen suit litigation, and lawsuits brought by third parties against the government. Given the current administration’s position on climate change, environmental regulation generally, and the perception that regulations impede economic growth and job development, there has been a significant slowdown in regulatory and administrative activity and the initiation of enforcement actions. NGOs and third-party activists will continue to fill this void by private lawsuits as citizen litigants.

Lynn L. Bergeson, "EPA Eyes ‘Burdensome’ Rules," Chemical Processing, May 19, 2017.

On February 24, 2017, President Trump issued Executive Order (EO) 13777, Enforcing the Regulatory Reform Agenda. The EO offers opportunities for stakeholders to improve regulations. This article summarizes efforts to implement this EO, and identifies opportunities stakeholders may wish to pursue to eliminate or amend regulatory initiatives they feel have outlived their utility or were ill-conceived from the get-go.

Lynn L. Bergeson, "TSCA Implementation Remains On Target: The EPA is issuing framework rules on a timely basis," Chemical Processing, March 22, 2017.

Implementation of the newly amended Toxic Substances Control Act (TSCA), signed into law last June, is in full swing. The U.S. Environmental Protection Agency (EPA) has been working hard to meet statutorily imposed deadlines for promulgating three “framework” rules by June 2017. To date, the EPA is on target. This column discusses the three framework rules.

Lynn L. Bergeson, "The EPA Seems Set for a Busy 2017 Under Trump Administration," Chemical Processing, January 24, 2017.

Last year was full of surprises, two of which will drive much of the agenda in 2017 for the Office of Chemical Safety and Pollution Prevention (OCSPP) of the U.S. Environmental Protection Agency (EPA). First, Congress significantly amended the Toxic Substances Control Act (TSCA). Although many thought the chances of successful TSCA legislation were slim, the second surprise event was even more unexpected — the election of Donald Trump as President.

Lynn L. Bergeson, "Next Generation Compliance and Its Implications for Industry," Environmental Quality Management, Volume 26, Issue 1, Fall 2016.

“Next Generation Compliance” is the U.S. Environmental Protection Agency’s (EPA) signature initiative intended to increase compliance with environmental regulations by using advances in pollution monitoring and information technology and by more effectively using and designing regulations and permits to reduce pollution and enhance compliance.  This column describes EPA’s initiative, discusses several examples of its applications in rulemakings and civil enforcement settlements, discusses another new compliance-related tool, eDisclosure, and outlines the implications for industry of these novel approaches to incentivizing compliance.

Lynn L. Bergeson, "EPA Speeds Review of Chemicals," Chemical Processing, October 24, 2016.

The U.S. Environmental Protection Agency (EPA) is continuing its brisk pace to be on target with implementing the new requirements of the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (see “Grasp the Gravity of the New TSCA,” and “EPA Releases Q&As on New TSCA”). Congress has in its sights persistent, bioaccumulative, and toxic (PBT) chemicals — with the goal to reduce exposures to them. The EPA’s recent action to fast track review of five such chemicals does just that. Here’s what the EPA announced, and its impact on industry.

Lynn L. Bergeson, "EPA Releases Q&As on New TSCA," Chemical Processing, September 20, 2016.

On September 2, 2016, the U.S. Environmental Protection Agency (EPA) released additional guidance on its implementation of the new Toxic Substances Control Act (TSCA) in the form of additional questions and answers (Q&As). This column explains the significance of this guidance.

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, ushering in a significantly enhanced, and effective immediately, chemical management law. (See “Grasp the Gravity of the New TSCA.")

The EPA has wasted no time in beginning the challenging process of implementing the law. This first step consists of preparing rulemakings and issuing guidance documents in the form of useful Q&As on a variety of topics.

Lynn L. Bergeson, "Pollution Monitoring: New Tools Help Speed Compliance," Chemical Processing, August 17, 2016.

The U.S. Environmental Protection Agency (EPA) has made much of its “Next Generation Compliance” initiative, created “to increase compliance with environmental regulations by using advances in pollutant monitoring and information technology combined with a focus on designing more effective regulations and permits to reduce pollution.” This involves more effective regulations and permits that include built-in compliance mechanisms, such as continuous monitoring for stationary sources; advanced monitoring, including fence-line monitoring and infrared camera systems; greater transparency, including public availability of electronic data and third-party audits; and “innovative” enforcement, including incorporating these elements in administrative and judicial settlements and injunctive relief demands. This column briefly outlines these new initiatives so Chemical Processing readers can take advantage of these programs.

Charles M. Auer, "Old TSCA, New TSCA, and Chemical Testing," BNA Daily Environment Report, August 16, 2016.

It is the author’s view that the central failing of old TSCA was its inability to produce the testing needed by EPA to assess and understand the hazards, exposures, and risks of existing chemicals. New TSCA makes important changes to the authority available to EPA to compel industry to generate the information needed by EPA to meet the purposes articulated under the new law. This paper briefly reviews the issues and problems that EPA encountered in using old TSCA for this purpose, discusses the improvements in new TSCA, and discusses why the author believes they offer the potential of future success in the testing area.

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