Monthly Update for April 2022


WEBINAR - Register Now For “FIFRA Hot Topics,” April 20, 2022, 12:00 p.m. EDT: In 2022, the U.S. Environmental Protection Agency (EPA) Office of Pesticide Programs (OPP) is directing focus to long-standing challenges, including renewed efforts to meet Endangered Species Act (ESA) consultation requirements with the release of the Balancing Wildlife Protection and Responsible Pesticide Use work plan, determining how best to meet core pesticide registration review obligations, and the development of the fifth Pesticide Registration Improvement Extension Act (PRIA). Register now to join Lisa M. Campbell, Partner, Bergeson & Campbell, P.C. (B&C®); Edward Messina, Director, EPA OPP, and James V. Aidala, Senior Government Affairs Consultant, B&C for “FIFRA Hot Topics,” a complimentary webinar covering key OPP priorities and what companies should know to avoid market delays.

WEBINAR - Register Now For “Domestic Chemical Regulation And Achieving Circularity,” May 18 2022, 12:00 p.m. EDT: A circular economy requires new thinking about what products we make, from which materials we make them, and where products go at the end of their useful life. An important but often overlooked aspect of new product development is an understanding of the consequences of the product’s chemical composition and the end-of-life implications of the decisions made at the front end of the process. Working within this framework plays a critical role in building a resilient, dependable, and sustainable system that fosters innovation to develop a circular economy. Register now to join Lynn L. Bergeson, Managing Partner, B&C; Richard E. Engler, Ph.D., Director of Chemistry, B&C; Kate Sellers, Technical Fellow, ERM, and Mathy Stanislaus, Esquire, Vice Provost and Executive Director of Drexel University’s Environmental Collaboratory, as B&C presents “Domestic Chemical Regulation and Achieving Circularity.”

Join B&C At Upcoming In-Person Events: B&C professionals are looking forward to seeing people in person again at live events this summer. We hope to see you at the Household & Commercial Product Association’s mid-year meeting, IMPACT2022, May 11-13, 2022, where Richard E. Engler, Ph.D., will present during the Regulatory Affairs Council, and at the American Chemical Society’s (ACS) 26th Annual Green Chemistry & Engineering Conference, June 6-8, 2022, where Richard E. Engler, Ph.D., and Ligia Duarte Botelho, M.A., will present a symposium on new chemical bias.

TSCA/FIFRA/TRI

PODCAST - FIFRA Hot Topics — A Conversation With Jim Aidala: James V. Aidala and Lynn L. Bergeson sit down to discuss EPA and Congressional initiatives involving the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Unsurprisingly, the new (or not so new now) Administration has taken positions on key FIFRA issues that are quite different from those of the prior Administration. This episode covers pollinators, Pesticide Registration Improvement Extension Act of 2018 (PRIA 4) renewal, ESA, and a host of other FIFRA hot topics. Listen now.

PODCAST - Reflections on TSCA Implementation — A Conversation With Alexandra Dunn: Lynn L. Bergeson and Alexandra Dunn, immediate past Assistant Administrator of the EPA Office of Chemical Safety and Pollution Prevention (OCSPP), discuss Alex’s transition back into the private law sector and reflect on current EPA policies under the Toxic Substances Control Act (TSCA) and FIFRA to understand what has changed since Alex left EPA. Listen now.

EPA Actions To Address PFAS In Commerce Include TSCA Compliance Notification Letter On PFAS In HDPE Containers: On March 16, 2022, EPA announced two actions intended to safeguard communities from products containing per- and polyfluoroalkyl substances (PFAS). First, as part of EPA’s efforts to identify, understand, and address PFAS contamination leaching from fluorinated containers, EPA states that it is notifying companies of their obligation to comply with existing requirements under TSCA to ensure unintentional PFAS contamination does not occur. EPA will also remove two PFAS from its Safer Chemical Ingredients List (SCIL) following a review of these substances. For more information, please read the full memorandum.

EPA Publishes Receipt And Status Information For Certain New Chemicals For February 2022: On March 17, 2022, EPA published the receipt and status reports for the period from February 1, 2022, to February 28, 2022. 87 Fed. Reg. 15237. EPA states that it is providing notice of receipt of a premanufacture notice (PMN), significant new use notice (SNUN), or microbial commercial activity notice (MCAN), including an amended notice or test information; an exemption application (Biotech exemption); an application for a test marketing exemption (TME), both pending and/or concluded; a notice of commencement (NOC) of manufacture (including import) for new chemical substances; and a periodic status report on new chemical substances that are currently under EPA review or have recently concluded review. Comments identified by the specific case number provided by EPA are due April 18, 2022.

EPA Holds Webinar On Biofuel PMNs: New Chemical Risk Assessment And Applications Of The Tools And Models: On March 23, 2022, EPA held a webinar on “Biofuel Premanufacture Notices: New Chemical Risk Assessment and Applications of Tools and Models.” As reported in our January 24, 2022, blog item, in January 2022, EPA announced an effort to streamline the review of new biobased or waste-derived chemicals that could displace current, higher greenhouse gas (GHG)-emitting transportation fuels. EPA states that to support this effort, it is offering outreach and training to stakeholders interested in biofuels. According to EPA, the bi-weekly webinar series includes reviewing requirements under TSCA, outlining the streamlined approaches for risk assessments and risk management actions, and providing information on how to navigate the new chemicals PMN process. For biofuel PMNs, EPA has started generating one report that combines the results of each of the above assessments. More information is available in our March 24, 2022, blog item.

EPA Issues Test Orders For Eight Of The Next 20 Chemicals Being Evaluated Under TSCA: On March 24, 2022, EPA announced that it has issued a second round of test orders under TSCA Section 4 to obtain additional data on eight of the next 20 chemicals undergoing risk evaluation. EPA states that after reviewing reasonably available data on these chemicals, it determined additional data are needed and is using its TSCA test order authority to require companies to develop and submit information on avian and aquatic environmental hazard and consumer exposure. The chemicals are:

  • Chlorinated Solvents:
     
    • 1,1,2-Trichloroethane;
       
    • 1,2-Dichloroethane;
       
    • 1,2-Dichloropropane;
       
    • Trans-1,2-Dichloroethylene;
       
    • o-Dichlorobenzene; and
       
    • p-Dichlorobenzene;
       
  • Flame Retardants:
     
    • 4,4สน-(1-Methylethylidene)bis[2,6-dibromophenol] (TBBPA); and
       
    • Phosphoric acid, triphenyl ester (TPP).
       

More information is available in our March 24, 2022, blog item.

TSCA New Chemicals Coalition Asks EPA To Suspend Decision To Revoke 1980 Guidelines To Correct The Chemical Identity Of A Substance On The TSCA Inventory: On March 25, 2022, the TSCA New Chemicals Coalition (NCC) sent a letter to Michal Ilana Freedhoff, Ph.D., Assistant Administrator of EPA’s OCSPP, regarding its concerns with the “phasing out” of the TSCA Inventory correction process. The NCC states that it believes EPA’s decision-making process “would benefit greatly from stakeholder input and urges EPA to suspend the phaseout set to occur on April 26, 2022, and to reconsider the revocation of the 1980 corrections guidelines set to occur May 31, 2022.” According to the NCC, “[b‌]oth decisions invite significant unintended consequences, and stakeholder comment may well provide information that could persuade EPA to go in a different direction.” The NCC urges EPA to address the issues outlined in its letter by suspending its decisions to revoke the guidelines and “phaseout” of the Inventory correction process and seeking comment on its plans.

EPA Calls For Submissions For 2022 Safer Choice Partner Of The Year Awards: On March 28, 2022, the EPA Safer Choice Program announced that it is accepting submissions for its 2022 Safer Choice Partner of the Year Awards. 87 Fed. Reg. 17287. EPA “especially encourages submission of award applications that show how the applicant’s work in the design, manufacture, selection and use of those products promotes environmental justice, bolsters resilience to the impacts of climate change, results in cleaner air or water, or improves drinking water quality.” According to EPA, all Safer Choice stakeholders and program participants in good standing are eligible for recognition. Interested parties who would like to be considered for the award should submit to EPA information about their accomplishments and contributions during 2021. EPA notes that there is no form associated with this year’s application. EPA will recognize award winners at a Safer Choice Partner of the Year Awards ceremony in fall 2022. Submissions are due May 31, 2022.

EPA Proposes To Update Voluntary Consensus Standards Concerning Formaldehyde Emissions From Composite Wood Products: On March 29, 2022, EPA proposed to update the incorporation by reference of several voluntary consensus standards in its formaldehyde standards for composite wood products regulations under TSCA that have since been updated, superseded, or withdrawn by the issuing organizations. 87 Fed. Reg. 17963. In addition, EPA proposes to address remote inspections for third-party certifiers required to conduct on-site inspections in the event of unsafe conditions such as the on-going COVID-19 pandemic or other unsafe conditions such as natural disasters, outbreaks, political unrest, and epidemics. Finally, EPA proposes certain technical corrections and conforming changes, including updating standards within the definitions section, clarifying language as it relates to production, and creating greater flexibilities for the third-party certification process. Comments are due April 28, 2022.

Comments On TSCA Collaborative Research Program To Support New Chemicals Due May 10, 2022: EPA has placed in the docket a March 29, 2022, memorandum correcting the deadline for public comment on the TSCA Collaborative Research Program to Support New Chemicals. The memorandum states that EPA is clarifying the deadline because the February 25, 2022, Federal Register notice erroneously referenced two different dates. The 60-day comment period on the supporting technical document began when EPA added the document to the docket on March 10, 2022. Comments are due May 10, 2022. More information on EPA’s supporting technical document, “Modernizing the Process and Bringing Innovative Science to Evaluate New Chemicals Under TSCA,” is available in our March 14, 2022, memorandum.

EPA Publishes Statements Of Findings For January 2022 For Certain New Chemicals Or Significant New Uses: On March 31, 2022, EPA published its statements of findings made after reviewing notices submitted under TSCA Section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. 87 Fed. Reg. 18791. The notice presents statements of findings made by EPA during the period from January 1, 2022, to January 31, 2022.

EPA Releases Petition Guidance For Formaldehyde Emission Standards: On March 31, 2022, EPA announced that it is providing additional guidance to laminated product producers and stakeholders on submitting petitions to request an exemption from the hardwood plywood formaldehyde emission standards and certain third-party certification requirements found in EPA’s Formaldehyde Emission Standards for Composite Wood Products rule. Unless exempted, beginning March 22, 2024, laminated product producers will be required to meet the requirements of the rule.

Comments On Proposed Ban Of Ongoing Asbestos Uses Due June 13, 2022: EPA proposed on April 12, 2022, to prohibit ongoing uses of chrysotile asbestos, the only known form of asbestos currently imported into the United States. 87 Fed. Reg. 21706. EPA proposes to prohibit manufacture (including import), processing, distribution in commerce, and commercial use of chrysotile asbestos for all ongoing uses of chrysotile asbestos. EPA will also propose targeted disposal and recordkeeping requirements in line with industry standards, Occupational Safety and Health Administration (OSHA) requirements, and the Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP). Comments on the proposed rule are due June 13, 2022. A detailed analysis of the proposed rule is available in our April 7, 2022, memorandum.

RCRA/CERCLA/CWA/CAA/PHMSA/SDWA

EPA Updates Superfund NPL: On March 17, 2022, EPA announced that it is adding 12 sites to the Superfund National Priorities List (NPL) and is proposing to add another five. EPA states that these are sites where releases of contamination pose significant human health and environmental risks. Cleaning up contaminated sites is important for the health, safety, and revitalization of communities. EPA is adding the following sites to the NPL: Lower Neponset River, Boston/Milton, Massachusetts; Meeker Avenue Plume, Brooklyn, New York; Bear Creek Sediments, Baltimore County, Maryland; Paden City Groundwater, Paden City, West Virginia; Westside Lead, Atlanta, Georgia; Galey and Lord Plant, Society Hill, South Carolina; National Fireworks, Cordova, Tennessee; North 5th Street Groundwater Contamination, Goshen, Indiana; Michner Plating -- Mechanic Street, Jackson, Michigan; Southeast Hennepin Area Groundwater and Vapor, Minneapolis, Minnesota; Unity Auto Mart, Unity, Wisconsin; and Bradford Island, Cascade Locks, Oregon. EPA is proposing to add the following sites to the NPL: Lower Hackensack River, Bergen and Hudson Counties, New Jersey; Brillo Landfill, Victory, New York; Georgetown North Groundwater, Georgetown, Delaware; Hercules Inc., Hattiesburg, Mississippi; and Highway 3 PCE, Le Mars, Iowa. EPA is also withdrawing a previously proposed site, the Riverside Groundwater Contamination site in Indianapolis, Indiana, following its determination that the Indiana Department of Environmental Management is advancing the site’s cleanup at the same standards as an EPA-lead cleanup.

PHMSA Seeks Comment On Initiative To Convert Historical LOIs Into HMR FAQs: On March 22, 2022, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) announced an initiative to convert historical letters of interpretation (LOI) applicable to the Hazardous Materials Regulations (HMR) that have been issued to specific stakeholders into broadly applicable frequently asked questions (FAQ) on its website. 87 Fed. Reg. 16308. PHMSA states that by creating an FAQ repository, it seeks to eliminate the need for recurring requests for common LOIs. According to the notice, PHMSA’s objective is to gain insight regarding the utility of the initiative and topics to prioritize in the development of future FAQs. PHMSA requests comment on the initiative and input on the prioritization of future sets of FAQs. Comments are due May 23, 2022. More information is available in our March 24, 2022, memorandum.

EPA Proposes CWA Hazardous Substance Worst-Case Discharge Planning Regulations: On March 28, 2022, EPA proposed a regulatory program whereby those facilities that could reasonably be expected to cause substantial harm to the environment, based on their locations, are required to prepare and submit Clean Water Act (CWA) hazardous substance Facility Response Plans (FRP) for worst-case discharges to EPA. 87 Fed. Reg. 17890. EPA proposes that FRPs must be consistent with the National Contingency Plan and Area Contingency Plans; identify the qualified individual having full authority to implement response actions and require immediate communications between that individual and the appropriate federal official and the persons providing personnel and equipment, with a description of duties; identify, and ensure by contract or other approved means, the availability of private personnel and equipment necessary to respond to the maximum extent practicable to a worst-case discharge of CWA hazardous substances (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge; describe the training, equipment testing, periodic unannounced drills, and response actions of persons on the vessel or at the facility; and review and update FRPs periodically and resubmit to the Regional Administrator for approval of each significant change. Specific CWA hazardous substance FRP components will include: facility information, owner or operator information, hazard evaluation, reportable discharge history, response personnel and equipment, evidence of contracts or other approved means to ensure the availability of personnel and equipment, notification lists, discharge information, personnel roles and responsibilities, response equipment information, evacuation plans, discharge detection systems, response actions, disposal plans, containment measures, training and exercise procedures, self-inspection, and coordination activities. Comments are due May 27, 2022.

EPA Proposes Stronger Standards For Heavy-Duty Vehicles And Engines: On March 28, 2022, EPA published a proposed rule that would reduce air pollution from highway heavy-duty vehicles and engines, including ozone, particulate matter, and GHGs. 87 Fed. Reg. 17414. EPA states that the proposed rule would change the heavy-duty emission control program -- including the standards, test procedures, useful life, warranty, and other requirements -- to reduce further the air quality impacts of heavy-duty engines across a range of operating conditions and over a longer period of the operational life of heavy-duty engines. According to EPA, the proposal would reduce emissions of nitrogen oxides and other pollutants. In addition, the proposal would make targeted updates to the existing Heavy-Duty GHG Emissions Phase 2 program, proposing that further GHG reductions in the Model Year (MY) 2027 timeframe are appropriate considering lead time, costs, and other factors, including market shifts to zero-emission technologies in certain segments of the heavy-duty vehicle sector. EPA also proposes limited amendments to the regulations that implement its air pollutant emission standards for other sectors (e.g., light-duty vehicles, marine diesel engines, locomotives, various types of nonroad engines, vehicles, and equipment). Comments are due May 13, 2022. EPA notes that under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of the comments by April 27, 2022.

NDWAC Will Discuss Proposed NPDWR For PFAS: On March 29, 2022, EPA’s Office of Ground Water and Drinking Water announced a virtual meeting of the National Drinking Water Advisory Council (NDWAC) as authorized under the Safe Drinking Water Act (SDWA). 87 Fed. Reg. 18016. The purpose of the meeting is for EPA to update NDWAC on SDWA programs and to consult with NDWAC as required by SDWA on a proposed National Primary Drinking Water Regulation (NPDWR) for PFAS, including perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The meeting will be held April 19, 2022.

EPA Announces Plan To Protect Public From Perchlorate In Drinking Water: On March 31, 2022, EPA announced that it completed review of a July 2020 determination to not regulate perchlorate in drinking water. The Agency concluded that the 2020 decision is supported by the best available peer-reviewed science. According to EPA’s fact sheet, available resources and ongoing activities include: continuing ongoing cleanup activities at perchlorate-contaminated sites; proposing revisions to Resource Conservation and Recovery Act (RCRA) standards for the open burning and open detonation of waste explosives and bulk propellants to reduce impacts of perchlorate to human health and the environment; strengthening labeling requirements for hypochlorite solutions that include storage and handling information to minimize perchlorate formation; and providing resources and recommendations for water systems to address perchlorate contamination. Planned activities include conducting studies to characterize perchlorate occurrence in ambient waters and developing a Web-based toolkit about perchlorate.

EPA Re-proposes To Remove Emergency Affirmative Defense Provisions In CAA Regulations For State And Federal Operating Permit Programs: EPA re-proposed on April 1, 2022, a document that would remove the emergency affirmative defense provisions found in the regulations for state and federal operating permit programs under the Clean Air Act (CAA). 87 Fed. Reg. 19042. The purpose of these provisions has been to establish an affirmative defense that sources can assert in civil enforcement cases when noncompliance with certain emission limitations in operating permits occurs because of qualifying “emergency” circumstances. EPA states that these provisions, which have never been required elements of state operating permit programs, are being removed because they are inconsistent with the enforcement structure of the CAA and court decisions from the U.S. Court of Appeals for the D.C. Circuit. According to EPA, the removal of these provisions is consistent with other EPA actions involving affirmative defenses and would harmonize the enforcement and implementation of emission limitations across different CAA programs. Comments are due May 16, 2022.

EPA Proposes To Amend e-Manifest Regulations: On April 1, 2022, EPA proposed changes to the manifest regulations for shipments of hazardous waste that are exported for treatment, storage, and disposal. 87 Fed. Reg. 19290. The proposed changes follow EPA’s 2018 Electronic Manifest (e-Manifest) User Fee final rule, which states that the scope of the e-Manifest requirements and system would not extend to U.S. export shipments of hazardous wastes until EPA determined, through separate rulemaking, which entity in the export process would be responsible for submitting export manifests to the e-Manifest system and paying the associated user fees. EPA also proposes regulatory changes to the RCRA hazardous waste export and import shipment international movement document-related requirements to link more closely the manifest data with the international movement document data. In addition, EPA proposes regulatory amendments to three manifest-related reports and requests public comment on changes to the manifest form. EPA also requests comment with respect to how it can begin to integrate biennial reporting requirements with e-Manifest data. Additionally, EPA proposes conforming regulatory changes to the TSCA manifest regulations for polychlorinated biphenyl (PCB) wastes. Finally, EPA proposes to make technical corrections to fix typographical errors in the e-Manifest and movement document regulations. Comments are due May 31, 2022. EPA notes that under the PRA, comments on the information collection provisions are best assured of consideration if OMB receives a copy by May 31, 2022.

EPA Announces Strategy To Protect Water Quality By Accelerating Nutrient Pollution Reductions: On April 5, 2022, EPA announced the release of a new policy memorandum on Accelerating Nutrient Pollution Reductions in the Nation’s Waters. In the memorandum, EPA commits to deepening existing partnerships and fostering new collaboratives with the U.S. Department of Agriculture (USDA), states, Tribes, territories, agriculture, industry, and the broader water sector. EPA states that it will support innovation and pursue science-based and data-driven strategies to reduce excess nutrients in the nation’s waters. Critically, EPA will also provide technical assistance and other support to help states, Tribes, and territories scale effective nutrient loss reduction strategies. The Bipartisan Infrastructure Law also provides dedicated resources to accelerate efforts, such as the work happening through the Gulf Hypoxia Taskforce on state nutrient reduction strategies. EPA will also continue to evolve and implement the CWA regulatory framework to address nutrient pollution holistically.

SAB Requests Nominations For Panel To Review BenMAP: The Science Advisory Board (SAB) requested nominations on April 5, 2022, to form a panel to review the new cloud-based Environmental Benefits and Mapping (BenMAP) tool, an open-source computer program that calculates estimated air pollution-related deaths and illnesses and their associated economic value. 87 Fed. Reg. 19680. EPA states that BenMAP is a shorthand title referring to its Environmental Benefits Mapping and Analysis Program, which has been updated recently to a new software platform built with Java code for the interface. The panel will review the latest available public release version of the BenMAP software. Nominations are due April 26, 2022.

EPA Begins Public Consultation On Proposed Consent Decree Concerning TRI Listing For DINP: On April 8, 2022, EPA gave notice of a proposed consent decree that resolves Breast Cancer Prevention Partners, et al. v. EPA, a case in the U.S. District Court for the Northern District of California (4:21-cv-07360-HSG), that alleges EPA unreasonably delayed taking final action on its proposed rulemaking to list diisononyl phthalate (DINP) on the Toxics Release Inventory (TRI) pursuant to the Emergency Planning and Community Right-to-Know-Act (EPCRA). 87 Fed. Reg. 20853. The proposed consent decree states that no later than January 31, 2023, EPA shall either sign a final rule that lists DINP on the TRI or sign a notice for publication in the Federal Register to withdraw the proposed rulemaking to list DINP on the TRI. Comments are due May 9, 2022.

EPA Adds 1- Bromopropane To List Of CERCLA Hazardous Substances: On April 8, 2022, EPA issued a technical amendment to modify the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) list of hazardous substances to be consistent with the statutory provisions that currently comprise this list. 87 Fed. Reg. 20721. EPA states that these modifications include adding the CAA hazardous air pollutant (HAP) 1-bromopropane and removing the RCRA vacated K-Code Wastes: K064, K065, K066, K090, and K091. EPA is also adding clarifying language, correcting a Chemical Abstracts Service Registry Number (CAS RN), and modifying the formatting of hazardous substance isomers and homologs that are listed with parent substances. The final rule was effective April 8, 2022.

Bipartisan Group Of Lawmakers Urge EPA To Close TRI Reporting Loopholes For PFAS: On April 11, 2022, a bipartisan group of 38 members of the House of Representatives sent a letter to EPA’s OCSPP urging it to close reporting loopholes that allow “hundreds of dangerous” PFAS to be manufactured, processed, used, and released in the United States. According to the letter, the way EPA codified the TRI-listed PFAS into law “allows polluters to utilize exemptions to significantly underreport or avoid reporting its PFAS releases entirely.” The letter asks EPA to take action immediately to close the reporting loopholes.

EPA Releases Supplement To The 2019 Integrated Science Assessment For Particulate Matter: On April 14, 2022, EPA announced the availability of a final document entitled “Supplement to the 2019 Integrated Science Assessment for Particulate Matter (Final).” 87 Fed. Reg. 22207. The Supplement represents a targeted review of peer-reviewed studies published since the literature cutoff date (i.e., ~January 2018) of the 2019 Integrated Science Assessment for Particulate Matter (PM ISA). The Supplement and the 2019 PM ISA provide the scientific basis for EPA’s decisions, in conjunction with additional technical and policy assessments, for the reconsideration of EPA’s 2020 review of the National Ambient Air Quality Standard (NAAQS) and the appropriateness of possible alternative standards. The document will be available on or about May 13, 2022.

EPA Publishes Annual U.S. GHG Inventory: EPA announced on April 14, 2022, the release of the 29th annual Inventory of U.S. GHG Emissions and Sinks, presenting a national-level overview of annual GHG emissions from 1990 to 2020. According to EPA, net U.S. GHG emissions were 5,222.4 million metric tons of carbon dioxide equivalent in 2020, a nearly 11 percent decrease in emissions from 2019. EPA states that “[t]he sharp decline in emissions from 2019 to 2020 is largely due to the impacts of the coronavirus (COVID-19) pandemic on travel and economic activity.” EPA notes that the decline also reflects the combined impacts of several factors, including population trends, energy market trends, technological changes including energy efficiency improvements, and the carbon intensity of energy fuel choices.

FDA

FSMA Enforcement Discretion Policy Guidance: On March 11, 2022, the U.S. Food and Drug Administration (FDA) issued guidance on its intent “not to enforce certain provisions of five rules that implement the FDA Food Safety Modernization Act (FSMA).” The enforcement discretion policy applies to provisions in the following rules:

  • Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food;
     
  • Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Animal Food;
     
  • Foreign Supplier Verification Program (FSVP);
     
  • Produce Safety (PSR); and
     
  • Intentional Adulteration (IA).
     

Correction To GRAS Regulations: On March 29, 2022, FDA published a rule “to correct an editorial or technical error that appeared in the most recent annual revision of the Code of Federal Regulations.” 87 Fed. Reg. 17941. The rule reinstates paragraph (g) of 21 C.F.R. Section 170.30, concerning the “Eligibility for classification as generally recognized as safe (GRAS),” which reads as follows:

(g) A food ingredient that is not GRAS or subject to a prior sanction requires a food additive regulation promulgated under section 409 of the act before it may be directly or indirectly added to food.

Nanotechnology For Food and Medical Product Applications Conference: The 12th annual Global Summit on Regulatory Science, co-hosted by the Singapore Food Agency (SFA) and the Global Coalition for Regulatory Science and Research with involvement from FDA, will be held October 19-21, 2022, in Singapore and virtually. The theme for the conference is “Advances in Nanotechnology for Food and Medical Products: Innovations, Safety and Standards.” The conference is free to attend, but registration is required by June 10, 2022. Additional details are available at the link here.

NANOTECHNOLOGY

EC Requests SCCS For A Scientific Opinion On “Hydroxyapatite (Nano)”: On March 17, 2022, the European Commission (EC) requested that the Scientific Committee on Consumer Safety (SCCS) prepare a scientific opinion on “hydroxyapatite (nano).” The EC asks whether SCCS considers hydroxyapatite (nano) safe when used in oral cosmetic products according to the maximum concentrations and specifications as reported in a February 2022 industry submission, taking into account reasonably foreseeable exposure conditions. The EC also asks if SCCS has any further scientific concerns with regard to the use of hydroxyapatite (nano) in oral cosmetic products. More information is available in our March 23, 2022, blog item.

RAC Adopts Opinion On Harmonized Classification And Labeling For MWCNTs: On March 22, 2022, the European Chemicals Agency (ECHA) announced that the Committee for Risk Assessment (RAC) recently adopted ten opinions on harmonized classification and labeling (CLH), including an opinion for multi-walled carbon nanotubes (MWCNT). The annex to ECHA’s announcement states: “RAC agreed to Germany’s proposal to classify MWCNTs as substances that may cause cancer via inhalation (Carc. 1B; H350i) and cause damage to the lungs via inhalation (STOT RE 1; H372). RAC also agreed to add specific concentration limits of C >1 % for STOT RE 1 and 0.1 > C < 1 % for STOT RE 2.”

EC’s Public Consultation On Targeted Revision Of The Cosmetic Products Regulation Includes Review Of Nanomaterial Definition: The EC has begun a public consultation on how the Cosmetic Products Regulation could be improved to ensure human health and the functioning of the internal market. According to the EC, the identified shortcomings include “the lack of coherence between legislations on the definition of nanomaterials.” The questionnaire asks whether the definition of nanomaterial in the Cosmetic Products Regulation should be updated and if the definition of nanomaterial in the Cosmetic Products Regulation should be consistent with the definition applicable to multiple sectors (i.e., a cross-sectoral definition). The public consultation will end June 21, 2022.

NNI Publishes Supplement To President Biden’s 2022 Budget: On March 31, 2022, the National Nanotechnology Initiative (NNI) published a supplement to President Biden’s 2022 budget request. The supplement serves as NNI’s annual report. According to the supplement, NNI has made significant progress toward the five goals of NNI identified in the 2021 NNI Strategic Plan. Furthermore, the nanotechnology research community continues to leverage former NNI investments that established a strong foundation of understanding at the nanoscale to combat COVID-19 and prepare for future pandemics. More information is available in our April 8, 2022, blog item.

NNI Releases Video Documentary Highlighting The Past 20 Years: NNI announced on April 11, 2022, the release of a video documentary, NNI Retrospective Video: Creating a National Initiative, produced in cooperation with TV Worldwide. The interviews in the video explain why the creation of NNI was successful. Interviews focus on three questions: motivation and how NNI started; the process and reason for the success in creating NNI; and outcomes of NNI after 20 years and how the initial vision has been realized.

BIOBASED/RENEWABLE PRODUCTS

B&C® Biobased And Sustainable Chemicals Blog: For access to a summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go to https://biobasedblog.lawbc.com.

LEGISLATIVE

EPA Transparency Act Introduced In The Senate: On March 15, 2022, Senator Joni Ernst (R-IA) announced the introduction of the EPA Transparency Act (S. 3843) “to increase congressional oversight over far-reaching and burdensome rules and regulations by President Biden’s Environmental Protection Agency (EPA) on Iowa’s farmers and small businesses.” According to the press release, the bill would require that every new rule from EPA that increases the size of the federal government over an individual’s private land and property has dual reports that accompany it. The first report “is an accounting of hard data that supports their claim that the new rule is actually addressing climate change and not just a Trojan horse to expand the scope of their authority.” The second report is an analysis on how the new rule will economically impact small businesses financially. Once these reports are completed, EPA is required to make them publicly available and to circulate them to Congressional offices.

House Committee Holds Hearing On Bioenergy RD&D For The Fuels And Chemicals Of Tomorrow: On March 16, 2022, the House Science, Space, and Technology Subcommittee on Energy held a hearing on “Bioenergy Research and Development for the Fuels and Chemicals of Tomorrow.” According to the hearing charter, the purpose of the hearing was to examine the status of bioenergy research, development, and demonstration (RD&D) activities carried out by the U.S. Department of Energy (DOE). The hearing also considered advancements in bioenergy research and the potential role of this resource in a cleaner energy transition. Lastly, the hearing was intended to help inform future legislation to support and guide the United States’ bioenergy RD&D enterprise. For more information, please read the full memorandum.

Bipartisan Bill Would Direct EPA To Add PFAS To List Of HAPs: On March 17, 2022, Representative Haley Stevens (D-MI) introduced the Prevent Release of Toxic Emissions, Contamination and Transfer (PROTECT) Act (H.R. 7142), a bill that would direct the EPA Administrator to add as a class all PFAS with at least one fully fluorinated carbon atom to the list of HAPs under CAA Section 112(b). Stevens’s press release states that “PFAS has been prevalent in the water supply, but it is also emitted into the air. Researchers don’t yet know much about the sources and amount of PFAS air emissions.”

House Bill Would Strengthen Medical Supply Chains: On March 24, 2022, Representatives Mike Gallagher (R-WI) and Mark Pocan (D-WI) introduced the Medical Supply Chain Security Act (H.R. 7208). According to Gallagher’s March 25, 2022, press release, the bill would strengthen medical supply chains by giving FDA the authority to analyze sourcing locations of medical products and help more quickly bring products to market should shortages exist. The bill would:

  • Require that manufacturers report imminent or forecasted shortages of life-saving or life-sustaining medical devices to FDA just as they currently do for pharmaceutical drugs;
     
  • Allow FDA to expedite the review of essential medical devices that require pre-market approval in the event of an expected shortage reported by a manufacturer; and
     
  • Give new authority to FDA to request information from manufacturers of essential drugs or devices regarding all aspects of their manufacturing capacity, including sourcing of component parts, sourcing of active pharmaceutical ingredients, use of any scarce raw materials, and any other details FDA deems relevant to assess the security of the U.S. medical product supply chain.
     

Bipartisan Bill Would Implement National PFAS Study: Representatives Lizzie Fletcher (D-TX) and Peter Meijer (R-MI) introduced the Federal PFAS Research Evaluation Act (H.R. 7289) on March 30, 2022. According to Fletcher’s press release, the bill would implement a federal PFAS study to uncover the health hazards PFAS exposure presents to communities. The legislation would require federal agencies with existing PFAS research to work with the National Academies of Science to conduct a two-phase study on PFAS exposure and toxicity, and to develop a federal research and development plan to address PFAS exposure.

Bipartisan Bill Intends To Reduce U.S. Dependence On China’s Minerals: On March 31, 2022, Senators Angus King (I-ME), James Lankford (R-OK), John Cornyn (R-TX), and Mark Warner (D-VA) introduced the Quad Critical Minerals Partnership Act (S. 3962) to improve access to critical minerals by working closer with American allies, and to counter China’s current market dominance. According to King’s press release, the legislation would leverage existing trade partnership with Australia, India, and Japan -- an international alliance referred to as “The Quad” -- to create more reliable supply chains for minerals used in essential technologies, reduce American reliance on China, and protect the long-term national security interests of the United States and its allies.

House Bill Would Prevent Local Governments From Banning Or Restricting Pesticide Use: On March 31, 2022, Representative Rodney Davis (R-IL) introduced legislation (H.R. 7266) to prohibit “liberal local governments,” such as municipalities, townships, or counties, from banning or regulating the use of pesticides at levels that are more stringent than state and federal regulations. According to Davis’s press release, the bill would amend FIFRA to clarify that regulation of pesticides will be handled jointly by the lead regulatory agency in each state and EPA, “agencies that have the resources and scientific expertise to effectively regulate pesticides.” The press release states that the bill would also ensure uniform labeling of pesticides.

Senate Committee Hearing On Proposed FY 2023 EPA Budget Includes Discussion Of TSCA And FIFRA Issues: The Senate Committee on Environment and Public Works held a hearing on April 6, 2022, on EPA’s proposed fiscal year (FY) 2023 budget. The only witness was EPA Administrator Michael S. Regan. In his written testimony, Regan states that EPA has significant responsibilities under amendments to TSCA to ensure the safety of chemicals in or entering commerce and addressing unreasonable risks to human health or the environment. President Biden’s proposed budget would provide $124 million and 449 full-time equivalents (FTE) to implement TSCA, an increase of more than $60 million. According to Regan, these resources will support EPA-initiated chemical risk evaluations, issue protective regulations in accordance with statutory timelines, and establish a pipeline of priority chemicals for risk evaluation. EPA “also has significant responsibility under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to screen new pesticides before they reach the market and ensure pesticides already in commerce are safe.” Regan notes that in addition, EPA is responsible for complying with ESA and ensuring that federally endangered and threatened species are not harmed when EPA registers pesticides. The FY 2023 budget includes an additional $4.9 million to enable EPA’s pesticide program to integrate ESA requirements in conducting risk assessments and making risk management decisions that protect federally threatened and endangered species from exposure to new active ingredients. For more information, please read the full memorandum.

Senate Committee Passes Recycling And Composting Legislation: On April 7, 2022, the Senate Environment and Public Works Committee passed the Recycling and Composting Accountability Act (S.3743) and the Recycling Infrastructure and Accessibility Act (S.3742). The Recycling and Composting Accountability Act would improve data collection on recycling systems and explore the potential of a national composting strategy. The legislation would require EPA to collect and distribute data on recycling and composting rates across the country to provide an accurate reflection of performance both nationwide and on the state level. The Recycling Infrastructure and Accessibility Act would establish a pilot recycling program at EPA that would award grants, on a competitive basis, to eligible entities for improving recycling accessibility in a community or communities within the same geographic area. The goal of the program would be to fund eligible projects that would significantly improve access to recycling systems in underserved communities through the use of a hub-and-spoke model for recycling infrastructure development.

Senate Committee Holds Hearing On Scope And Scale Of Critical Mineral Demand And Recycling: On April 7, 2022, the Senate Committee on Energy and Natural Resources held a full committee hearing to discuss the scope and scale of critical mineral demand and recycling of critical minerals. The Committee heard from the following witnesses:

  • David Howell, Acting Director and Principal Deputy Director, Office of Manufacturing and Energy Supply Chains, Director, Vehicle Technologies Office, DOE;
     
  • Joe Britton, Executive Director, Zero Emission Transportation Association;
     
  • R. Scott Forney III, President, General Atomics, Electromagnetic Systems Group;
     
  • J.B. Straubel, Founder and Chief Executive Officer (CEO), Redwood Materials; and
     
  • Duncan Robert Wood, Ph.D., Vice President, Strategy & New Initiatives, Wilson Center.
     

House Subcommittee Will Hold Hearing On Electric Vehicle Batteries And The Critical Minerals Supply: On April 21, 2022, the House Science, Space, and Technology Subcommittee on Investigations and Oversight will hold a hearing on “Pedal to the Metal: Electric Vehicle Batteries and the Critical Minerals Supply.” The Subcommittee will hear from the following witnesses:

  • Nate Baguio, Senior Vice President of Commercial Development, The Lion Electric Company;
     
  • Chris Nevers, Senior Director of Public Policy, Rivian;
     
  • Venkat Srinivasan, Ph.D., Deputy Director of the Joint Center for Energy Storage Research and Director of the Argonne Collaborative Center for Energy Storage Science, Argonne National Laboratory; and
     
  • Chibueze Amanchukwu, Ph.D., Neubauer Family Assistant Professor of Molecular Engineering, University of Chicago.
     

House Committee Will Hold Hearing In Response To IPCC Reports To Discuss Solutions For The Climate Crisis: Representative Eddie Bernice Johnson (D-TX), Chair of the House Science, Space, and Technology Committee, announced on April 5, 2022, that the Committee plans to hold a hearing on April 28, 2022, to discuss the findings of the latest report from the Intergovernmental Panel on Climate Change (IPCC) and the previous reports from its Working Group. According to Johnson, “[t]he hearing will be an opportunity to hear from experts familiar with the findings of these reports who can describe how scaled up investments in research and development efforts can bring about achievable, equitable, and transformational solutions to climate change.”

MISCELLANEOUS

USDA Seeks Comment On Competition And Supply Chain Concerns Regarding Access To Fertilizer: On March 17, 2022, USDA requested comments and information from the public to assist it in identifying relevant difficulties, including competition concerns, and potential policy solutions for the fertilizer market. 87 Fed. Reg. 15191. USDA seeks comment on certain topics, including challenges and concerns with market concentration and power in the fertilizer industries; long- and short-term trends in fertilizer prices; views on whether the existing fertilizer market is sufficiently competitive; the role contractual or sales practices in fertilizer play with regard to producer access or prices paid for fertilizer; how transportation and delivery affect fertilizer competition and access to fertilizer; the U.S. agricultural system’s reliance on foreign supply of some fertilizers and global supply chain risks that could result from trade disruptions; sustainability, climate, and other environmental concerns and risks relating to fertilizer markets; obstacles to the financing and development of new fertilizer capacity; how USDA can further support more efficient use of fertilizer; other ways USDA can support farmers’ ability to adapt to variability in fertilizer costs; and other tools, investments, or programs USDA or other agencies could deploy to enhance the competitiveness of fertilizer markets. Comments are due May 16, 2022.

USDA Seeks Comment On The IP System And Competition In Seeds And Other Agricultural Inputs: On March 17, 2022, USDA requested comments and information to assist it in preparing a report on concerns and strategies for ensuring that the intellectual property (IP) system, while incentivizing innovation, does not also unnecessarily reduce competition in seed and other input markets. 87 Fed. Reg. 15198. USDA states that its request for comment includes but is not limited to questions regarding the following topics: concentration and market power in agricultural inputs; IP; business practices and other competition matters; information resources; additional matters; and policy, programs, and solutions. Comments are due May 16, 2022.

EPA Administrator Regan Issues Memorandum Regarding Consent Decrees And Settlement Agreements To Resolve Environmental Claims: On March 18, 2022, EPA Administrator Michael S. Regan issued a memorandum on “Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency.” The memorandum revokes an October 2017 memorandum and directive issued by the previous Administration that “established procedural requirements inappropriately favoring certain stakeholders in settling environmental claims brought against the EPA” and that “gave little weight to the well-understood value of settlements in appropriate cases.” According to the memorandum, the Office of General Counsel (OGC) is enhancing public awareness of such claims against EPA and providing an opportunity for public review and comment on proposed settlements by:

  • Posting new Notices of Intent (NOI) to Sue the Agency, petitions for review, complaints, and proposed settlements (consent decrees and settlement agreements) to OGC’s website for public awareness;
     
  • Maintaining a public e-mail listserv for automated e-mail notice of newly posted NOIs, petitions for review, complaints, and proposed settlements; and
     
  • Making proposed settlements available for public review and comment after they have been conditionally approved by government decision-makers, for at least 30 days unless a different period of time is required by law.
     

SEC Will Propose Rules Intended To Enhance And Standardize Climate-Related Disclosures For Investors: On March 21, 2022, the U.S. Securities and Exchange Commission (SEC) announced that it will propose rule changes that would require registrants to include certain climate-related disclosures in their registration statements and periodic reports, including information about climate-related risks that are reasonably likely to have a material impact on their businesses, results of operations, or financial condition, and certain climate-related financial statement metrics in a note to their audited financial statements. SEC states that the proposed rule changes would require a registrant to disclose information about (1) the registrant’s governance of climate-related risks and relevant risk management processes; (2) how any climate-related risks identified by the registrant have had or are likely to have a material impact on its business and consolidated financial statements, which may manifest over the short-, medium-, or long-term; (3) how any identified climate-related risks have affected or are likely to affect the registrant’s strategy, business model, and outlook; and (4) the impact of climate-related events (severe weather events and other natural conditions) and transition activities on the line items of a registrant’s consolidated financial statements, as well as on the financial estimates and assumptions used in the financial statements. According to SEC, for registrants that already conduct scenario analysis, have developed transition plans, or publicly set climate-related targets or goals, the proposed amendments would require certain disclosures to enable investors to understand those aspects of the registrants’ climate risk management. The proposed rule would also require a registrant to disclose information about its direct GHG emissions (Scope 1) and indirect emissions from purchased electricity or other forms of energy (Scope 2). In addition, a registrant would be required to disclose GHG emissions from upstream and downstream activities in its value chain (Scope 3) if material, or if the registrant has set a GHG emissions target or goal that includes Scope 3 emissions. SEC states that these proposals for GHG emissions disclosures “would provide investors with decision-useful information to assess a registrant’s exposure to, and management of, climate-related risks, and in particular transition risks.” SEC notes that the proposed rules would provide a safe harbor for liability from Scope 3 emissions disclosure and an exemption from the Scope 3 emissions disclosure requirement for smaller reporting companies. The comment period will remain open for 30 days after publication in the Federal Register, or 60 days after the date of issuance and publication on sec.gov, whichever period is longer.

EPA Releases Tool To Provide Public With Customized Updates On Local Enforcement And Compliance Activities: On March 22, 2022, EPA announced the release of “ECHO Notify,” a new Web tool that “empowers members of the public to stay informed about important environmental enforcement and compliance activities in their communities.” EPA states that through ECHO Notify, users can sign up to receive weekly emails when new information is available within the selected geographic area, such as when a violation or enforcement action has taken place at a nearby facility. Once subscribed, the user will receive an automated e-mail containing new information from the prior weeklong period.

CPSC Seeks Comment On Procedural Deficiencies In Final Phthalates Rule: On March 24, 2022, the Consumer Product Safety Commission (CPSC) published a notice following a federal court opinion remanding CPSC’s 2017 final phthalates rule to allow CPSC to address two procedural deficiencies found by the court. 87 Fed. Reg. 16635. CPSC seeks public comment regarding the justification for the phthalates final rule and the staff’s cost-benefit analysis for continuing the interim prohibition on DINP. CPSC will consider only comments regarding the rationale for the final rule and/or the cost-benefit analysis of continuing the DINP interim prohibition. Comments are due May 9, 2022.

CDC National Report On Human Exposure To Environmental Chemicals Transitions To Online Interface: On March 24, 2022, the Centers for Disease Control and Prevention (CDC) announced that its National Report on Human Exposure to Environmental Chemicals (the Report) is now available in an online interface that allows users to search for chemicals in multiple ways and compare data tables quickly. The Report includes summary data for chemicals that have results available from the National Health and Nutrition Examination Survey (NHANES) starting with the 1999-2000 cycle. The Report now includes data from NHANES 2017-2018; adds five data tables for three chemicals reported for the first time or measured in a new matrix; updates 131 data tables for 97 chemicals measured in blood, serum, or urine specimens; and incorporates 19 data tables for 18 chemicals previously published as “Early Releases.”

President’s FY 2023 Budget Request Includes $11.881 Billion For EPA: On March 28, 2022, the Biden Administration submitted to Congress President Biden’s budget for FY 2023. According to EPA’s March 28, 2022, press release, the budget makes critical investments, including:

  • Upgrading Drinking Water and Wastewater Infrastructure Nationwide: The budget provides approximately $4 billion to advance efforts to upgrade drinking water and wastewater infrastructure nationwide, with a focus on underserved communities;
     
  • Ensuring Clean and Healthy Air for All Communities: The budget allocates $1.1 billion to improve air quality and reduce localized pollution, reduce exposure to radiation, and improve indoor air for communities across the United States;
     
  • Tackling the Climate Crisis: The budget prioritizes funding for tackling the climate crisis and invests an additional $100 million in grants to Tribes and states that will support on-the-ground efforts to reduce GHG emissions and increase resiliency in infrastructure;
     
  • Advancing Environmental Justice: The Biden Administration is committed to increasing efforts to deliver environmental justice in communities across the United States. The budget supports the President’s Justice40 commitment to ensure at least 40 percent of the benefits of federal investments in climate and clean energy reach historically overburdened and underserved communities;
     
  • Protecting Communities from Hazardous Waste and Environmental Damage: The budget provides $1.15 billion for Superfund programs to continue cleaning up some of the nation’s most contaminated land and also provides $215 million to provide technical assistance and grants to communities for EPA’s Brownfields programs;
     
  • Strengthening EPA’s Commitment and Ability to Implement TSCA Successfully: The budget provides $124 million and 449 FTEs for TSCA efforts “to deliver on the promises made to the American people by the bipartisan Lautenberg Act.” According to the budget, “[t]hese resources will support EPA-initiated chemical risk evaluations and protective regulations in accordance with statutory timelines”;
     
  • Tackling PFAS Pollution: As part of the President’s commitment to tackling PFAS pollution, the budget provides approximately $126 million in FY 2023 for EPA to increase its understanding of human health and ecological effects of PFAS, restrict uses to prevent PFAS from entering the air, land, and water, and remediate PFAS that have been released into the environment;
     
  • Enforcing and Assuring Compliance with the Nation’s Environmental Laws: The budget provides $213 million for civil enforcement efforts, which includes increasing enforcement efforts in communities with high pollution exposure and to prevent the illegal importation and use of hydrofluorocarbons in the United States; and
     
  • Restoring Critical Capacity to Carry Out EPA’s Core Mission: The budget includes more than 1,900 new FTEs relative to current levels, for a total of more than 16,200 FTEs, to help rebuild EPA’s capacity.
     

OSHA Proposes To Improve Tracking Of Workplace Injuries And Illnesses: On March 30, 2022, OSHA proposed to amend its occupational injury and illness recordkeeping regulation to require certain employers to submit electronically injury and illness information to OSHA that employers are already required to keep under the recordkeeping regulation. 87 Fed. Reg. 18528. OSHA also proposes to update the classification system used to determine the list of industries covered by the electronic submission requirement. In addition, the proposed rule would remove the current requirement for establishments with 250 or more employees, not in a designated industry, to submit information electronically from their Form 300A to OSHA on an annual basis. OSHA intends to post the data from the proposed annual electronic submission requirement on a public website after identifying and removing information that reasonably identifies individuals directly, such as individuals’ names and contact information. Finally, OSHA proposes to require establishments to include their company names when making electronic submissions to OSHA. Comments are due May 31, 2022.

President Biden Signs Determination Permitting Use Of DPA Authorities For Critical Materials In Large-Capacity Batteries: On March 31, 2022, President Joseph Biden signed a memorandum permitting the use of Defense Production Act (DPA) Title III authorities to strengthen the U.S. industrial base for large-capacity batteries. According to the Department of Defense’s (DOD) April 5, 2022, press release, DOD now has the authority to increase domestic mining and processing of critical materials for the large-capacity battery supply chain. DOD states that the United States “depends on unreliable foreign sources for many of the strategic and critical materials necessary for the clean energy transition,” while “[d]emand for such materials is projected to increase exponentially as the world transitions to a clean energy economy.” DOD notes that the DPA Title III authorities enable it to undertake actions, including but not limited to, feasibility studies and modernization projects for “mature mining, benefication, and value-added processing projects to increase productivity, environmental sustainability, and workforce safety. It also allows for by-product and co-product production at existing mining, mine waste reclamation, and other industrial facilities.”

SAB PFAS Review Panel Will Hold Two Meetings In May: On April 1, 2022, EPA announced that the SAB PFAS Review Panel will meet in May 2022 to discuss its draft report reviewing EPA’s Proposed Approaches to the Derivation of a Draft Maximum Contaminant Level Goal for PFOA in Drinking Water; EPA’s Proposed Approaches to the Derivation of a Draft Maximum Contaminant Level Goal for PFOS in Drinking Water; EPA’s Analysis of Cardiovascular Disease Risk Reduction as a Result of Reduced PFOA and PFOS Exposure in Drinking Water; and EPA’s Draft Framework for Estimating Noncancer Health Risks Associated with Mixtures of PFAS. 87 Fed. Reg. 19088. The public meetings will be held May 3, 2022, from 12:00 p.m. to 5:00 p.m. (EDT) and May 6, 2022, from 1:00 p.m. to 5:00 p.m. (EDT).

OSTP Publishes RFI Regarding Sustainable Chemistry: The Office of Science and Technology Policy (OSTP) published on April 4, 2022, a request for information (RFI) from interested parties on federal programs and activities in support of sustainable chemistry. 87 Fed. Reg. 19539. OSTP notes that “[t]he term ‘sustainable chemistry’ does not have a consensus definition and most uses of the term indicate that it is synonymous with ‘green chemistry.’” OSTP requests information on the preferred definition for sustainable chemistry. OSTP also seeks comments on how the definition of sustainable chemistry could impact the role of technology, federal policies that may aid or hinder sustainable chemistry initiatives, future research to advance sustainable chemistry, financial and economic considerations, and federal agency efforts. OSTP states that it will use comments provided in response to the RFI to address Subtitle E of Title II of the National Defense Authorization Act (NDAA) (Subtitle E), which includes the text of the bipartisan Sustainable Chemistry Research and Development Act of 2019. Subtitle E directs OSTP “to identify research questions and priorities to promote transformational progress in improving the sustainability of the chemical sciences.” Comments are due by 5:00 p.m. (EDT) on June 3, 2022. For more information, please read the full memorandum.

OEHHA Modifies Proposed Changes To “Short-Form” Warnings: On April 5, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice proposing additional modifications to its proposal to modify its Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations for “short-form” warnings (Notice). OEHHA first proposed to change the short-form warning requirements on January 8, 2021. On December 13, 2021, OEHHA issued a notice proposing modifications to the revisions in its first proposal. More information regarding the January 8, 2021, proposal and the December 13, 2021, modifications is available on our blog. OEHHA is requesting comments on its Notice and the modifications to the proposed regulatory text to be submitted no later than April 20, 2022. For more information, please read the full memorandum.

OSHA Initiates Enforcement Program To Identify Employers Failing To Submit Injury, Illness Data: On April 5, 2022, OSHA announced that is initiating an enforcement program to identify employers who failed to submit Form 300A data through its Injury Tracking Application (ITA). OSHA states that the program matches newly opened inspections against a list of potential non-responders to OSHA’s collection of Form 300A data through the ITA and reports all matches to the appropriate OSHA area office. If the area office determines that the establishment on the list is the same establishment where the inspection was opened, OSHA will issue citations for failure to submit OSHA Form 300A Summary data. In addition to identifying non-responders at the establishment level, OSHA is also reviewing the 2021 submitted data to identify non-responders at a corporate-wide level. According to OSHA, this corporate level review is being conducted for the nation’s largest employers.

DOC Requests Public Comments On Supply Chain Issues To Support The United States-EU Trade and Technology Council Secure Supply Chains Working Group: On April 6, 2022, the U.S. Department of Commerce (DOC) Bureau of Industry and Security (BIS) requested public comments regarding how to advance supply chain resilience and security in key sectors -- semiconductors; solar photovoltaics; critical minerals and materials including rare earth magnets, lithium-ion batteries, and material inputs to semiconductors; and pharmaceuticals -- to inform the work of the United States-European Union (EU) Trade and Technology Council (TTC) Secure Supply Chains Working Group. 87 Fed. Reg. 19854. The Working Group is tasked with increasing transparency of supply and demand, mapping respective existing sectoral capabilities, exchanging information on policy measures and research and development priorities, and cooperating on strategies to promote supply chain resilience and diversification. Comments are due May 23, 2022.

FTC Announces Settlements With Kohl’s And Walmart For “Bogus Bamboo Marketing”: The Federal Trade Commission (FTC) announced on April 8, 2022, that it used its Penalty Offense Authority to take action against Kohl’s and Walmart “for falsely marketing dozens of rayon textile products as bamboo.” FTC also charged both companies with making deceptive environmental claims, “touting that the ‘bamboo’ textiles were made using ecofriendly processes, while in reality converting bamboo into rayon requires the use of toxic chemicals and results in hazardous pollutants.” According to FTC, it asked the U.S. District Court for the District of Columbia to order Kohl’s and Walmart to stop making deceptive green claims or using other misleading advertising, and to pay penalties of $2.5 million and $3 million, respectively, “by far the largest penalties in this area.” More information is available on our website.

EPA Requests Nominations For SAB IRIS Hexavalent Chromium Review Panel: The EPA SAB requested nominations on April 13, 2022, of scientific experts to form a panel to review the draft EPA Integrated Risk Information System (IRIS) Toxicological Review of Hexavalent Chromium. 87 Fed. Reg. 21885. EPA’s draft assessment includes a hazard identification analysis, which summarizes the chemical properties, toxicokinetics, and health effects associated exposure, and dose-response analysis, which characterizes the quantitative relationship between chemical exposure and each credible health hazard. These quantitative relationships are then used to derive cancer and non-cancer toxicity values (e.g., inhalation unit risk, oral slope factor, reference concentration, reference dose). The SAB Hexavalent Chromium Review Panel will consider whether the conclusions found in EPA’s draft assessment are clearly presented and scientifically supported. The Panel will also be asked to provide recommendations on how the assessment may be strengthened. Nominations are due May 4, 2022.

White House Environmental Justice Advisory Council Will Hold Virtual Meeting In May 2022: EPA announced on April 13, 2022, that the White House Environmental Justice Advisory Council will meet May 11-12, 2022. 87 Fed. Reg. 21884. The meeting is open to the public. Members of the public are encouraged to provide comments relevant to federal disaster preparedness and relief and community resilience. Members of the public who wish to participate during the public comment period must pre-register by 11:59 p.m. (EDT), May 4, 2022. The Council will hold a virtual public meeting May 11-12, 2022. A public comment period relevant to federal disaster preparedness and relief and community resilience will be considered by the Council during the meeting on May 11, 2022.

EPA Begins 60-Day Public Comment Period On Draft IRIS Toxicological Review Of Formaldehyde (Inhalation): On April 14, 2022, EPA announced a 60-day public comment period associated with the release of the draft IRIS Toxicological Review of Formaldehyde (Inhalation). 87 Fed. Reg. 22208. EPA states that it is releasing the draft IRIS assessment for public comment in advance of an external peer review conducted by the National Academy of Sciences, Engineering, and Medicine (NASEM). NASEM will convene a public meeting to discuss the draft report with the public during Step 4 of the IRIS Process. The external peer reviewers will consider public comments submitted in response to this notice and provided at the public meeting when reviewing this document. EPA will consider all comments received when revising the document post-peer review. EPA notes that the draft assessment is not final as described in its information quality guidelines, and it does not represent, and should not be construed to represent, EPA policy or views. Comments are due June 13, 2022.

EPA Releases Equity Action Plan To Advance Environmental Justice And Civil Rights: EPA announced on April 14, 2022, the release of its Equity Action Plan to fulfill President Biden’s Executive Order 13985 directing EPA, along with other federal agencies, to assess whether underserved communities face systemic barriers in accessing benefits and opportunities through the federal government. The Equity Action Plan outlines six priority actions: developing a comprehensive framework for considering cumulative impacts in relevant EPA decisions; building the capacity of underserved communities to provide their experience to EPA and implement community-led projects; developing EPA’s internal capacity to engage underserved communities and to implement clear and accountable processes to act based on communities’ input; strengthening EPA’s external civil rights compliance program and ensuring that civil rights compliance is an agency-wide responsibility; integrating participatory (community) science into EPA’s research and program implementation; and making EPA’s procurement and contracting more equitable.

External Peer Review Meeting On Draft IRIS Toxicological Review Of PFHxA Will Be Held In May 2022: The draft IRIS Toxicological Review of Perfluorohexanoic Acid and Related Salts (PFHxA) is now undergoing independent external scientific peer review managed by ERG, a contractor to EPA. The process includes a peer review meeting organized by ERG taking place virtually via Zoom May 16-17, 2022. Members of the public may attend as observers. A limited amount of time will be set aside for oral public comments near the beginning of the peer review meeting on the first day. Registration to make oral comments will end May 9, 2022.

This Update is provided as a complimentary service to our clients and is for informational purposes. This Update may be copied or quoted, provided proper attribution is given. The contents are not intended and cannot be considered as legal advice.

 
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