Monthly Update for August 2019


Product Stewardship 2019, September 10-12, 2019, Columbus, OH: Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®), has served as president-elect of the Product Stewardship Society (PSS) since 2017 and will begin her term as the PSS President during the Product Stewardship Conference. Scott J. Burya, Ph.D., Regulatory Chemist, B&C, will present on regulatory barriers to innovation and how to address them.

WEBINAR -- Implementation of RMP: A Discussion Of Key Issues, September 25, 2019, 1:00 p.m. - 2:00 p.m. (EDT): B&C is pleased to present the complimentary webinar “Implementation of RMP: A Discussion of Key Issues.” Christopher R. Bryant, Senior Regulatory Consultant, B&C; Karin F. Baron, MSPH, Senior Regulatory Consultant, B&C; and Lynn L. Bergeson, Managing Partner, B&C, will present. Register online now.

The GreenTech Conference, October 2-3, 2019, Seattle, WA: B&C is a proud sponsor of the Environmental Law Institute’s (ELI) GreenTech Conference, bringing together leaders from some of the world’s most innovative companies to engage with policymakers, lawmakers, technologists, and non-governmental organizations (NGO) to explore environmental protection in an era of transformative technological change. Dr. Andrey J. Zarur, Chief Executive Officer (CEO) and President of GreenLight Biosciences, will discuss using targeted biocontrol of RNA interference to increase yields during the Food for the Future panel on October 2, 2019. Join B&C, ELI, Intel, Amazon, and Google, among others in Seattle, Washington from October 2-3, 2019, for this exciting conference.

TSCA/FIFRA/TRI

EPA Requests Comments On 20 Proposed Low-Priority Chemical Substances: On August 13, 2019, the U.S. Environmental Protection Agency (EPA) released the list of 20 chemical substances that it proposes to designate as low-priority substances for which risk evaluation under the Toxic Substances Control Act (TSCA) is not warranted at this time. EPA’s August 15, 2019, proposed rule provides a summary of the approach used by EPA to support the proposed designations, the proposed designations for each of the chemical substances, and instructions on how to access the chemical-specific information, analysis, and basis used by EPA to make the proposed designation for each chemical substance. 84 Fed. Reg. 41712. EPA published its Approach Document for Screening Hazard Information for Low-Priority Substances Under TSCA (Approach Document), which describes the literature review process for the information used in the screening review for each proposed low-priority chemical substance. Comments on the proposed designations and on EPA’s Approach Document are due November 13, 2019. More information is available in our August 14, 2019, memorandum, “EPA Proposes to Designate 20 Chemical Substances as Low-Priority Substances.”

EPA Proposes TSCA Section 6(h) Regulation Of PBTs: On July 29, 2019, EPA proposed a rule intended to reduce exposures to certain chemicals that are persistent, bioaccumulative, and toxic (PBT). EPA identified five chemicals pursuant to TSCA Section 6(h): decabromodiphenyl ether (DecaBDE); phenol, isopropylated phosphate (3:1) (PIP (3:1)), also known as tris(4-isopropylphenyl) phosphate; 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP); hexachlorobutadiene (HCBD); and pentachlorothiophenol (PCTP). 84 Fed. Reg. 36728. The proposed rule would restrict or prohibit manufacture (including import), processing, and distribution in commerce for many uses of all of the chemicals except HCBD, for which EPA is proposing no regulatory action. For the other four chemicals, the proposed rule includes recordkeeping requirements, as well as additional downstream notification requirements for PIP (3:1). Comments are due on or before September 27, 2019. For more information on the proposed rule, see our blog.

EPA Posts NOA Form B Materials: On May 15, 2019, EPA published a Federal Register noticeannouncing the availability of a signed action identifying chemical substances for inactive designation according to the TSCA Inventory Notification (Active-Inactive) Requirements rule. 84 Fed. Reg. 21772. The signed action, dated May 6, 2019, initiated a 90-day period after which substances identified as inactive will be designated as inactive. Inactive designations for chemical substances on the TSCA Chemical Substance Inventory were effective on August 5, 2019. More information is available online

EPA Registers Long-Term Uses For Sulfoxaflor: On July 12, 2019, EPA announced in a Decision Memorandum that it has registered new uses and restored previously registered uses for sulfoxaflor. EPA has approved the use of sulfoxaflor on alfalfa, corn, cacao, grains (millet, oats), pineapple, sorghum, teff, teosinte, and tree plantations, and restored the uses on citrus cotton, cucurbits (squash, cucumbers, watermelons, some gourds), soybeans, and strawberries. EPA states that substantial data show that when sulfoxaflor is used according to the label, it poses no significant risk to human health and poses a lower risk to non-target wildlife, including pollinators, than other registered alternative products. EPA’s registration decision is available at www.regulations.gov in Docket Number EPA-HQ-OPP-2010-0889-0570. EPA’s decision follows an opinion issued on September 10, 2015, by the U.S. Court of Appeals for the Ninth Circuit vacating EPA’s 2013 unconditional registration for the pesticide sulfoxaflor, and remanding the matter to EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees and bee colonies. That decision is discussed in our blog item available here. In response to that decision, EPA also issued a cancellation order that included provisions for the disposition of existing stocks of sulfoxaflor products. After the decision of the Ninth Circuit Court of Appeals, EPA reevaluated the data and on October 14, 2016, approved sulfoxaflor end-use registrations for limited uses that did not include crops that attract bees. EPA also has been granting emergency exemptions for sulfoxaflor since 2012, with the most recent emergency exemptions granted on June 17, 2019, for the use of sulfoxaflor to control tarnished plant bugs on cotton in 12 states, and to control sugarcane aphids on sorghum in 14 states. More information is available online.

EPA Publishes TSCA CBI Review Statistics: EPA has published statistics concerning its review of confidential business information (CBI) cases received between June 22 2016, and June 25, 2019. According to EPA, the statistics show EPA's progress toward meeting the requirements of TSCA Section 14(g). EPA uses “case” to describe a submission made under a specific section of TSCA and all subsequent submissions and amendments by the same submitter that relate back to the first submission. EPA states that later this year, it plans to publish a comprehensive list of cases subject to CBI review to be updated quarterly. The table will include information showing the results of individual cases with completed reviews. More information is available in our July 23, 2019, blog item.

EPA Issues Final Order Denying Objections To EPA’s Order Denying Petition To Revoke Tolerances And Cancel Chlorpyrifos Registrations: On July 24, 2019, EPA published a final order denying the Pesticide Action Network North America’s (PANNA) and the Natural Resources Defense Council’s (NRDC) 2007 petition requesting that EPA revoke all tolerances and cancel all registrations for chlorpyrifos (Order). 84 Fed. Reg. 35555. The Order constitutes final agency action denying all of the Petitioners’ objections to EPA’s previous refusal to revoke the tolerances for chlorpyrifos. The Order also constitutes final administrative action concerning all parts of the 2007 petition that EPA did not previously address. Given the previous extensive chlorpyrifos litigation, this latest action by EPA will likely lead to further litigation challenging EPA’s decision to allow continued use of chlorpyrifos under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA). The Oder was immediately effective. More information is available online.

EPA Reevaluates And Reduces The FQPA Safety Factor For Pyrethroids: On August 2, 2019, EPA’s Office of Pesticide Programs (OPP) announced that it has decided to reduce the Food Quality Protection Act (FQPA) safety factor for infants and children for pyrethroids from its current value of 3X to a new value of 1X. This decision is based on a July 1, 2019, OPP report entitled “USEPA Office of Pesticide Programs’ Re-evaluation of the FQPA Safety Factor for Pyrethroids: Updated Literature and CAPHRA Program Data Review.” Risk assessments incorporating the new lower FQPA safety factor for pyrethroids will be utilized in developing proposed registration review decisions for these compounds, and EPA has stated it will be taking public comment on the OPP report reducing the FQPA safety factor for pyrethroids after EPA publishes a notice of availability for the proposed registration review decisions. Pyrethroids are a group of insecticides that includes natural pyrethrins (found in chrysanthemums) and more than 30 synthetic compounds with similar structure and activity. EPA has determined that it is appropriate to establish one FQPA safety factor for all pyrethroid active ingredients because these compounds all have the same mode of action and similar patterns of toxicity. Pyrethroid insecticides are widely used in and around residential structures, on pets, in treated clothing, for mosquito control, and in various agricultural applications. EPA indicates that although pyrethroids have relatively low mammalian toxicity, EPA believes that the principal concern for human risk assessment is a potential to cause acute neurotoxic effects. More information is available here.

Parties File New Petitions Challenging EPA’s Order Denying Chlorpyrifos Tolerance Revocation: On August 7, 2019, the League of United Latin American Citizens, PANNA, NRDC, and other petitioners (Petitioners) filed a new petition in the Ninth Circuit Court of Appeals seeking judicial review of EPA orders denying their request that EPA revoke all tolerances and cancel all registrations for chlorpyrifos. On August 8, 2019, New York, California, Hawaii, Maryland, Vermont, Washington, Massachusetts, and the District of Columbia (States) also filed a new petition for judicial review concerning the refusal of EPA to ban chlorpyrifos. The Petitioners and the States seek judicial review of the July 18, 2019, final order by EPA dismissing all objections to the initial decision by EPA to retain tolerances and registrations for chlorpyrifos, and of EPA’s March 29, 2017, order that initially denied a 2007 petition to revoke all tolerances and cancel all registrations for chlorpyrifos. The Petitioners and the States also seek consolidation of their newly filed petitions for judicial review with currently pending chlorpyrifos litigation in LULAC, et al. v. Wheeler, et al. More information is available in our blog.

EPA Issues Guidance Regarding Prop 65 Labeling Requirements For Glyphosate Products And OEHHA Responds: On August 7, 2019, EPA took long awaited action concerning the inclusion of Prop 65 warning statements for glyphosate on EPA registered pesticide labels, which will likely impact the broader ongoing debate over EPA approval of Prop 65 warnings on pesticide labels. EPA’s August 7, 2019, letter to glyphosate registrants states that EPA “will no longer approve labeling that includes the Proposition 65 warning statement for glyphosate-containing products.” EPA stated further that “[t]he warning statement must also be removed from all product labels where the only basis for the warning is glyphosate and from any materials considered labeling under FIFRA for those products.” Moreover, EPA unequivocally states that “pesticide products bearing the Proposition 65 warning statement due to the presence of glyphosate are misbranded” under FIFRA Section 2(q)(1)(A). Registrants with glyphosate products currently bearing Prop 65 warning language, where the exclusive basis for such warning is based on the presence of glyphosate, must submit draft amended labeling that removes this language by November 5, 2019. More information is available in our August 15, 2019, blog.

EPA Publishes Findings For New Chemicals For June 2019: TSCA Section 5(g) requires EPA to publish a statement of its findings after its review of TSCA Section 5(a) notices when EPA makes a finding that a new chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment. On August 12, 2019, EPA published a statement of its findings for June 2019. 84 Fed. Reg. 39828. EPA notes that such statements apply to premanufacture notices (PMN), microbial commercial activity notices (MCAN), and significant new use notices (SNUN) submitted to EPA under TSCA Section 5. More information is available in our blog.

EPA To Convene FIFRA Scientific Advisory Panel Meeting: On August 13, 2019, EPA announced there will be a four-day, public, in-person meeting of the FIFRA Scientific Advisory Panel (SAP) to consider and review the Approaches for Quantitative Use of Surface Water Monitoring Data in Pesticide Drinking Water Assessments. 84 Fed. Reg. 40047. Preceding the in-person meeting, there will be a preparatory, public, virtual meeting, conducted via teleconference and webcast to consider the scope and clarity of the draft charge questions for the peer review. EPA is requesting nominations of prospective candidates for service as ad hoc reviewers to assist the FIFRA SAP with this review. Interested persons or organizations may nominate qualified individuals to be considered as prospective candidates for this review by following the instructions provided in the Federal Register notice. The public meeting will be held November 19 to November 22, 2019, from 9:00 a.m. to approximately 5:00 p.m. (EST). The date, time, and registration instructions for the preparatory, public, virtual meeting will be announced on the FIFRA SAP website later this summer. Nominations of candidates to serve as ad hoc reviewers, to assist the FIFRA SAP with this review, should be provided on or before September 12, 2019. EPA encourages written comments and requests for oral comments be submitted on or before October 4, 2019. Written comments and requests to make oral comments may be submitted until the date of the in-person meeting, but anyone submitting such comments and requests after October 4, 2019, should contact the Designated Federal Official (DFO).

EPA Names Dr. Lynn Dekleva As Associate Deputy Assistant Administrator For New Chemicals: EPA has named Dr. Lynn Dekleva as Associate Deputy Assistant Administrator for New Chemicals. Dr. Dekleva joined EPA in October 2018 as a Science Advisor, working to streamline and improve EPA’s processes and timeliness concerning the review of new chemicals under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Dr. Dekleva is an environmental engineer with degrees in environmental microbiology, medical technology, and biology. Her contributions are expected to help EPA meet the ambitious mandates of the amended TSCA.

RCRA/CERCLA/CWA/CAA/PHMSA/SDWA

Court Upholds EPA’s Decision Not To Promulgate CERCLA Financial Assurance Requirements For Hardrock Mining: On June 19, 2019, the U.S. Court of Appeals for the D.C. Circuit issued a ruling upholding EPA’s decision to forego promulgating financial responsibility requirements for the hardrock mining industry. Idaho Conservation League, et al., v. EPA, Case No. 18-1141. EPA proposed financial assurance regulations for the hardrock mining sector under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) on January 11, 2017. 82 Fed. Reg. 3388. Other federal agencies, state agencies, and industry representatives opposed the proposal as unnecessary because of existing federal and state programs and modern mining practice. EPA ultimately agreed with the comments and on February 21, 2018, published its decision not to issue final financial assurance regulations for hardrock mining operations. 83 Fed. Reg. 7556. Following the rule, six environmental organizations -- the Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment -- jointly petitioned for review of the rule on the grounds that it is contrary to CERCLA, arbitrary and capricious, and procedurally defective. The environmental groups claimed that EPA wrongly interpreted “risk” in CERCLA Section 108(b). They contend that, regardless of the meaning of “risk,” CERCLA requires EPA to promulgate some financial responsibility requirements for the hardrock mining industry. With respect to the risk argument, the court found reasonable EPA’s interpretation that it should only set financial responsibility regulations based on financial risks, not risks to human health and the environment. The court also sided with EPA and found that nothing in CERCLA Section 108(b) requires EPA to set financial responsibility requirements. The court also rejected the environmental groups’ arbitrary and capricious challenges.

U.S. Objects To Adding Plastic Wastes To OECD Controls: On July 3, 2019, EPA Administrator Andrew Wheeler filed a formal objection with the Organization for Economic Cooperation and Development (OECD) on OECD’s plans to add plastic wastes to export controls under the OECD Council Decision, As Amended, on the Control of Transboundary Movements of Wastes Destined for Recovery Operations (OECD Decision). On May 10, 2019, the parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (Basel Convention) amended the convention to add three types of plastic wastes to the convention. That action now requires Basel Convention parties to obtain prior informed consent before shipping certain plastic wastes to nations that have adopted the Basel Convention. Amendments to the Basel Convention are automatically incorporated into OECD’s rules on waste imports and exports, provided that no OECD member country objects within 60 days. EPA’s July 3 objection thus stalls, at least for now, OECD’s adoption of the amendments. Wheeler stated in his objection that “subjecting plastic scrap to the Amber control procedure would impede trade for recycling and could reduce the level of recycling among OECD countries.” Should trade in plastics be blunted, Wheeler added, “we anticipate that more OECD-generated plastic scrap will be disposed in landfills, sent for incineration or used for fuel, which are less-preferred options on the waste-management hierarchy.”

EPA Proposal Would Rescind “Once-In Always-In” Policy For Major Sources Of Hazardous Air Pollutants: On July 26, 2019, in a reversal of a decades-old policy, EPA proposed to rescind EPA’s “once-in always-in” policy under the Clean Air Act (CAA). 84 Fed. Reg. 36304. The CAA defines a “major source” as one that emits, or has the potential to emit (PTE), 10 tons per year of any hazardous air pollutant (HAP), or 25 tons per year or more of any combination of HAPs. Sources with emissions below this threshold are “area sources.” All major sources are subject to Maximum Achievable Control Technology (MACT) standards, while area sources generally are subject to less stringent standards. In a 1995 memo, EPA established a “once-in always-in” policy stating that any facility subject to major source standards would always remain subject to those standards, even if the owner or operator of the facility implemented production process changes or controls that eliminated or permanently reduced the facility’s potential to emit HAPs. EPA first articulated the policy in a May 1995 memorandum. In that memorandum, EPA stated that “facilities that are major sources for HAP … are required to comply permanently with the MACT standard.” See “Potential to Emit for MACT Standards -- Guidance on Timing Issues.” John Seitz, Director, Office of Air Quality Planning and Standards, EPA (May 16, 1995). EPA, however, revisited the policy on January 25, 2018, and issued a memorandum rescinding it. The withdrawal was published in the Federal Register on February 8, 2018. 83 Fed. Reg. 5543. In the January 25, 2018, memorandum, EPA argues that the 1995 policy “is contrary to the plain language of the CAA, and, therefore, must be withdrawn.” EPA further explained that Congress defined the terms “major source” and “area source” in CAA Section 112(a) in unambiguous language. The 1995 policy violated those definitions by regulating area sources as major sources, EPA concluded. Accordingly, EPA has now determined that a major source that limits its PTE and takes measures to bring its HAP emissions below the applicable threshold becomes an area source, no matter when the source may choose to take measures to limit its PTE. “That source, now having area source status, will not be subject thereafter to those requirements applicable to the source as a major source under CAA section 112, including, in particular, major source MACT standards -- so long as the source’s PTE remains below the applicable HAP emission thresholds,” EPA states. To codify this new approach, EPA proposes to amend the applicability section found in 40 C.F.R. Section 63.1 by adding a new paragraph (c)(6). This paragraph will specify that a major source can become an area source at any time by limiting its HAP PTE to below the major source thresholds established in 40 C.F.R. Section 63.2. In another major shift from past policy, EPA is proposing to amend the definition of PTE in 40 C.F.R. Section 63.2 to remove the requirement that limits on emissions be federally enforceable. Instead, EPA is proposing that it will consider any physical or operational limitation on the capacity of the stationary source to emit a pollutant as part of its design if the limitation or the effect it would have on emissions is legally and practicably enforceable. This includes air pollution control equipment; restrictions on hours of operation; or limits on the type or amount of material combusted, stored, or processed. By proposing this amendment, EPA is allowing for the use of non-federally enforceable limits to be recognized as limiting a source’s PTE, provided those limits are legally and practicably enforceable. EPA also is allowing facilities to switch back and forth between major and area source status. EPA proposes regulatory text at 40 C.F.R. Section 63.1(c)(6)(i) under which major sources that reclassify to area source status become subject to applicable area source requirements immediately upon becoming an area source. For sources that reclassify from major to area source status and then revert back to their previous major source status, EPA is proposing that upon reverting back to major source status, a source must meet the major source requirements at the time that those requirements again become applicable to the source. Switching from a major source to an area source will not, however, allow facilities to escape enforcement actions initiated against them while they were major sources. To prohibit this, EPA proposes that reclassification from major source to area source does not affect a source’s liability, enforcement investigations, or enforcement actions for a source’s past violations of major source requirements that occurred prior to the source’s reclassification. The comment period on the proposed rule closes on September 24, 2019.EPA is holding a public hearing on the proposed rule on August 15, 2019.

EPA Revises CERCLA “Common Elements” Guidance: EPA on July 29, 2019, released a memorandum intended to provide EPA staff with guidance on the “common elements” of the CERCLA landowner liability protections for bona fide prospective purchasers (BFPP), contiguous property owners (CPO), and innocent landowners (ILO), to assist them in exercising their enforcement discretion under CERCLA. The guidance also is instructive for landowners, developers, lenders, investors, or other third-party stakeholders who may wish to become involved with impacted properties. The memorandum, “Enforcement Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners” (Common Elements Memorandum), supersedes EPA’s 2003 Interim Guide on this topic. Potential CERCLA liability associated with contaminated properties often has a chilling effect on the acquisition or development and reuse of impacted parcels of land. Congress also understood these concerns, and in an effort to address them enacted the Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No. 107-118, in January 2002. The legislation amended CERCLA to provide liability limitations for landowners that qualify as BFPPs, CPOs, or ILOs. Congress intended these provisions to be self-implementing, enabling private parties to save time and costs, in part, by reducing EPA involvement in most private party transactions. Despite the self-implementing nature of the qualified landowner liability protections, however, EPA has continued to receive requests for more clarity on the specific statutory criteria for BFPPs, CPOs, and ILOs. The Common Elements Memorandum is intended to provide that clarity. In the memorandum, EPA states that to achieve and maintain these statutory landowner liability protections, a landowner must meet certain threshold criteria and satisfy certain continuing obligations. Many of the conditions are the same or similar under the three landowner provisions, hence the “common elements” moniker for the guidance. This memorandum first discusses the threshold criteria of performing “all appropriate inquiries” into the previous ownership and uses of property before acquisition; and demonstrating no “affiliation” with a liable party (for BFPPs and CPOs). The memorandum also addresses the common continuing obligations:

  • Demonstrating that no disposal of hazardous substances occurred at the facility after acquisition by the landowner (for BFPPs and ILOs);
     
  • Complying with land use restrictions and not impeding the effectiveness or integrity of institutional controls (ICs);
     
  • Taking “reasonable steps” with respect to hazardous substance releases affecting a landowner's property;
     
  • Providing cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration;
     
  • Complying with information requests and administrative subpoenas (for BFPPs and CPOs); and
     
  • Providing legally required notices (for BFPPs and CPOs).
     

The Common Elements Memorandum is available online.

EPA Issues Proposed Rule Codifying New Source Review Project Emissions Accounting: EPA on August 9, 2019, proposed significant changes to the New Source Review (NSR) program under the CAA. 84 Fed. Reg. 39244. The rule would revise the process for evaluating projects under the major NSR program. It would streamline permitting processes and procedures through adoption of an approach EPA refers to as “Project Emissions Accounting.” NSR provisions require covered facilities to obtain a preconstruction permit prior to the construction of a new major stationary source or a “major modification” to an existing stationary source. Determining whether a proposed project triggers the threshold to obtain an NSR permit is a two-step process. The first step determines whether a proposed project will, by itself, result in a significant emissions increase. If an increase is projected to occur, the process moves to the second step to determine whether the project, combined with other unrelated recent projects, will result in a significant net emissions increase. EPA states that, given previous inconsistent application and interpretation of the first step, this process has prevented environmentally beneficial projects from moving forward. The rule clarifies that companies can consider projected decreases in emissions of air pollution, as well as projected emissions increases, during the first step. If the Step 1 evaluation shows that the proposed project will not result in a significant emissions increase, the project then proceeds under a state-issued minor source permit and avoids the complex multi-year evaluation to obtain a major NSR permit. In short, the rule would allow consideration of emissions decreases from a project, alongside any emissions increases, when determining whether the project causes a significant emissions increase from the source. This method abandons the decades-old approach of considering only increases in emissions when determining whether NSR is triggered and is certain to allow more facilities to avoid triggering NSR. The rule would essentially codify a March 2018 memorandum from then-EPA Administrator Scott Pruitt entitled “Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program.” That memorandum explicitly states that EPA’s NSR regulations provide for the accounting of both emissions increases and decreases as part of Step 1 in the NSR applicability evaluation. EPA is accepting comments on the proposed rule until October 8, 2019.

OSHA Requests Information On Silica Standard For Construction: The Occupational Safety and Health Administration (OSHA) on August 15, 2019, issued a notice requesting information and comment on the Respirable Crystalline Silica Standard for Construction (29 C.F.R. Part 1926 Subpart Z). 84 Fed. Reg. 41667. OSHA seeks information on additional engineering and work practice control methods to limit exposure to silica for the equipment and tasks listed on Table 1 of the standard. OSHA also requests information about other construction equipment and tasks that generate silica that it should consider adding to Table 1, along with information about their associated engineering and work practice control methods. OSHA explains that information submitted will allow it to consider new developments and enhanced control methods for equipment that generates exposure to silica and will provide additional data on exposures to silica from equipment and tasks using a variety of control methods under different workplace conditions. Expanding Table 1 to include additional engineering and work practice control methods, equipment, and tasks could provide employers with more flexibility and reduce regulatory burdens while maintaining protections for employees, OSHA states. The comment period closes on November 13, 2019.

Coalition Of States And Cities Sue EPA Over Repeal Of Clean Power Plan: A coalition of 22 states and several large cities on August 13, 2019, filed a suit challenging EPA’s repeal of the Obama Administration’s Clean Power Plan (CPP). The suit was filed by the Attorneys General for New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin. Also joining the suit are the District of Columbia, Boulder, Chicago, Los Angeles, New York City, Philadelphia, and South Miami. The petitioners seek the court to review the rule entitled “Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations.” 84 Fed. Reg. 32520 (July 8, 2019). That rule, also referred to as the Affordable Clean Energy (ACE) rule, is, according to the petitioners, “unlawful and must be vacated” pursuant to CAA Section 307(d)(9).

PHMSA Proposes Hodgepodge Of Revisions To Hazardous Materials Regulations: The Pipeline and Hazardous Materials Safety Administration (PHMSA) on August 14, 2019, proposed several revisions to the Hazardous Materials Regulations (HMRs). 84 Fed. Reg. 41556. PHMSA is responding to numerous petitions for rulemaking submitted by the regulated community that request PHMSA address a variety of provisions, including but not limited to those addressing packaging, hazardous communication, and incorporation by reference documents. The proposed amendments include the following: adopting a phase-out schedule for certain railroad tank cars used to transport materials poisonous by inhalation, allowing the continued use of certain portable and mobile refrigerator systems commonly used in the produce industry, incorporating an industry standard that can help to enhance the production of oil and gas wells, and incorporating an updated consensus standard that applies to the existing market for fireworks; as well as additional proposed amendments derived from PHMSA’s petition for rulemaking process.

  • Phasing out the use of non-normalized tank cars to transport poison-by-inhalation (PIH) materials;
     
  • Creating a limited quantity exemption for hydrogen peroxide;
     
  • Revising marking requirements for portable tanks;
     
  • Relaxing standards for metal drums sent for reconditioning;
     
  • Harmonizing limited quantity provisions;
     
  • Revising standards for mobile refrigeration units;
     
  • Removing special provisions for four explosives;
     
  • Issuing a final standard for HM-246 tank cars;
     
  • Phasing out the use of non-HM-246 compliant rail tank cars;
     
  • Allowing non-Resource Conservation and Recovery Act (RCRA) wastes to take advantage of the lab pack exception; and
     
  • Incorporating by reference several industry standards.
     

The comment period closes on October 15, 2019.

EPA Proposes Revisions To Coal Combustion Residuals RCRA Rule: Several “targeted changes” to the RCRA Coal Combustion Residuals (CCR) rule were proposed by EPA on August 14, 2019. 84 Fed. Reg. 40353. EPA proposes revisions to the annual groundwater monitoring and corrective action report requirements, establishing an alternate risk-based groundwater protection standard for boron, and revisions to the publicly accessible CCR website requirements. EPA also proposes to address two provisions of the final rule that were remanded back to EPA on August 21, 2018, by the U.S. Court of Appeals for the D.C. Circuit. First, EPA is proposing to revise the CCR beneficial use definition by replacing the mass-based numerical threshold with specific location-based criteria as the trigger for an environmental demonstration. Second, EPA is proposing to introduce a single approach to address consistently the potential environmental and human health issues associated with piles of CCR, regardless of the location of the pile and whether the CCR is destined for disposal or beneficial use. Comments must be received by October 15, 2019. EPA also will hold a public hearing on the proposal on October 2, 2019.

EPA Proposes Adjustments To HCFC Production And Import Allowance System: EPA on August 14, 2019, proposed to allocate production and consumption allowances for specific hydrochlorofluorocarbons (HCFCs) for the years 2020 through 2029. 84 Fed. Reg. 41510. EPA is proposing that these HCFCs may be used to service certain equipment manufactured before 2020. EPA is also proposing to update other requirements under the program for controlling production and consumption of ozone-depleting substances (ODS), as well as proposing edits to the regulatory text for improved readability and clarity. EPA is proposing a number of revisions to the production and consumption control program for ODS in 40 C.F.R. Part 82, Subpart A, which are divided into class I and class II substances. The list of class I substances includes chlorofluorocarbons (CFCs), halons, carbon tetrachloride, methyl chloroform, and methyl bromide. The list of class II substances consists entirely of HCFCs. EPA is proposing specific revisions to the production and consumption control program, including:

  • The allocation of production and consumption allowances for HCFC-123 and HCFC-124 to service certain equipment manufactured before January 1, 2020;
     
  • Requiring the use of an electronic reporting system for producers, importers, exporters, transformers, and destroyers of ODS;
     
  • Revisions and removal of certain recordkeeping and reporting requirements;
     
  • Clarifications to the certification requirements for methyl bromide quarantine and preshipment uses;
     
  • Improvements to the process for petitioning to import used substances for reuse;
     
  • Creation of a certification process for importing used and virgin substances for destruction; and
     
  • Restrictions on the sale of ODS known to be imported illegally.
     

EPA also is proposing revisions to other portions of the regulations to support the phaseout of ODS. EPA is proposing to revise requirements for labeling of products containing HCFC-123 to clarify permitted uses; add to the ban on sale and distribution or offer for sale and distribution in interstate commerce of certain products that contain class I ODS; and change the standards intended to reduce halon emissions. The comment period closes on September 30, 2019.

FDA

FDA Announces Request For Comments Regarding Nutrition And Supplement Facts Labels: On July 22, 2019, the U.S. Food and Drug Administration (FDA) announced that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act (PRA). 84 Fed. Reg. 35119. FDA provides estimates for recordkeeping burdens associated with labeling requirements in 21 C.F.R. Section 101.9. Comments on the collection of information are requested by August 21, 2019.

FDA Seeks Comments On Registration Of Food Facilities: On July 23, 2019, FDA announced that a proposed collection of information has been submitted to OMB for review and clearance under the PRA. 84 Fed. Reg. 35393. FDA estimates that burdens associated with registration for domestic and foreign food facilities, as required under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, have decreased overall because of the realization of burden associated with implementing measures on newly established electronic registration requirements. Comments on the collection of information are requested by August 22, 2019.

FDA Announces User Fee Rates For FSMA Programs: FDA announced user fee rates for the Food Safety and Modernization Act’s (FSMA) Voluntary Qualified Importer Program (VQIP) and Third-Party Certification Program for fiscal year (FY) 2020. 84 Fed. Reg. 35680 and 35395. Fees, which cover FDA’s costs of administering the programs, have been updated to account for inflation and other considerations. The new VQIP user fee was effective August 1, 2019, and will remain in effect through December 31, 2019. New application, annual, and renewal fees for the Third-Party Certification Program are effective October 1, 2019.

Impossible Foods Soy Leghemoglobin Approved As Color Additive By FDA: On August 1, 2019, FDA issued a final rule noting that the color additive regulations, in response to a petition submitted by Impossible Foods, Inc., will be amended to provide for the safe use of soy leghemoglobin as a color additive in ground beef analogue products. 84 Fed. Reg. 37573. The approved colorant will be listed in 21 C.F.R. Section 73.520 with identification, specification, use and labeling details, which includes the requirement that soy leghemoglobin protein in uncooked ground beef not exceed 0.8 percent by weight. The rule is set to become effective on September 4, 2019.

FDA Proposes Expanding Use Of Food Additive Vitamin D3: On August 12, 2019, FDA announced that it has proposed amending the food additive listing for vitamin D3 in 21 C.F.R.Section 172.380 following the submission of a food additive petition (FAP) by the Kellogg Company. The petition would provide for the safe use of vitamin D3 as a nutrient supplement in breakfast cereals and in grain-based nutrition bars (e.g., granola bars), and would update specifications for the additive detailed in Section 172.380(b). The FAP was filed on June 25, 2019.

NANOTECHNOLOGY

Nordic Council Of Ministers Publishes Report On Applicability Of GHS Classification Criteria To Nanomaterials: In May 2019, the Nordic Council of Ministers published a working paper entitled The applicability of the GHS classification criteria to nanomaterials. The goal of the project was to review the applicability of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) to manufactured nanomaterials, taking into account the progress of international scientific work. The report notes that the OECD Working Party on Manufactured Nanomaterials (WPMN) has generated and compiled much data on nanomaterials under the Testing Program of Manufactured Nanomaterials. These data were further assessed for some pre-selected nanomaterials: single-walled carbon nanotubes, nano silicon dioxide, nano silver, and nano zinc oxide. Additionally, the appropriateness of the GHS classification criteria for the generated data were evaluated for five health hazard classes for which an initial screening had shown a need for classification. Finally, if applicable, relevant classifications of the nanomaterials were assessed. More information is available in our August 2, 2019, blog item.

ECHA Updates Chemicals Database, Increases Visibility Of Nanomaterials: The European Chemicals Agency (ECHA) announced on July 3, 2019, that several new features and improvements are now publicly available in its chemicals database, including new information in substance Infocards. ECHA has updated the substance Infocards with a new nanomaterial form section that shows whether the substance is placed on the European Economic Area (EEA) market in nanoform and provides links to the European Union (EU) Observatory for Nanomaterials (EUON).

EC Committee Publishes Final Opinion On Solubility Of Synthetic Amorphous Silica: On July 3, 2019, the European Commission (EC) Scientific Committee on Consumer Safety (SCCS) published its final opinion on the solubility of synthetic amorphous silica (SAS). The final opinion addresses whether SCCS considers that SAS materials are soluble (100 milligram per liter (mg/L) or higher) or degradable/non-persistent in biological systems in light of the nanomaterial definition of the Cosmetics Regulation; whether SCCS could indicate to which kind of silica this solubility applies; and whether SCCS has any further scientific concerns with regard to the solubility of SAS. More information is available in our July 30, 2019, blog item.

EFSA Publishes Scientific Opinion On Proposed Amendment To EU Specifications For Titanium Dioxide (E 171): On July 12, 2019, the European Food Safety Authority (EFSA) published in the EFSA Journal its “Scientific opinion on the proposed amendment of the EU specifications for titanium dioxide (E 171) with respect to the inclusion of additional parameters related to its particle size distribution.” The opinion states that interested business operators have proposed to revise the EU specifications for E 171 to include “a specification of more than 100 nm for median Feret min diameter and less than 50% of the number of constituent particles below 100 nm; measured by EM in both cases.” The EFSA Panel on Food Additives and Flavorings, after reviewing the data, “concluded that a specification of more than 100 nm for median minimal external dimension, equivalent to less than 50% of the number of constituent particles with a median minimal external dimension below 100 nm, should be inserted in the current EU specifications.”

ACGIH® Will Not Proceed With TLV® For Carbon Nanotubes In 2020: The American Conference of Governmental Industrial Hygienists (ACGIH®) Threshold Limit Values for Chemical Substances (TLV®-CS) Committee included carbon nanotubes on its 2019 list of chemical substances and other issues under study. On July 30, 2019, ACGIH® announced the release of its two-tier under study list. Tier 1 lists the chemical substances and physical agents that may move forward as a notice of intended change (NIC) or notice of intent to establish (NIE) in the upcoming year, based on their status in the development process. Tier 2 consists of those chemical substances and physical agents that will not move forward, but will either remain on or be removed from the under study list for the next year. Carbon nanotubes are included in Tier 2. If carbon nanotubes are included on the 2020 under study list, stakeholders will have an opportunity to submit substantive data and comments.

German Chemical Industry Association Publishes Guidance On Safe Recovery And Disposal Of Wastes Containing Nanomaterials: On August 1, 2019, the German Chemical Industry Association (VCI) announced the availability of a guidance document on the safe recovery and disposal of wastes containing nanomaterials. According to VCI, wastes containing nanomaterials can be generated in the production or use of nanomaterials. Such wastes can occur in the production of substances, mixtures, or products; in the processing and repair of products; or in the disposal of products at the end of their life cycle.

Webcast Available For The Future Of The NNI: A Stakeholder Workshop: On August 1-2, 2019, the National Nanotechnology Initiative (NNI) held “The Future of the NNI: A Stakeholder Workshop.” NNI has played a pivotal role in fostering and advancing a dynamic nanotechnology ecosystem in support of the initiative’s four goals: advance world-class research; foster commercialization; develop and sustain research infrastructure; and support the responsible development of nanotechnology. Building on this foundation, experts from the nanotechnology community shared their perspectives on the key elements required for the nanotechnology enterprise to thrive over the next 15 years. NNI has posted the videos for a number of the sessions. More information is available in our August 8, 2019, blog item.

Registration Open For NNI Webinar On Respiratory Effects Of Engineered Nanomaterials In Relation To Physicochemical Properties: Registration has begun for NNI’s September 10, 2019, webinar on “Respiratory Effects of Engineered Nanomaterials in Relation to Physicochemical Properties.” The speaker will be Dr. Junfeng (Jim) Zhang, Nicholas School of the Environment and Duke Global Health Institute, Duke University, and Dr. William Boyes, EPA, will moderate. Participants will be able to submit questions for Dr. Zhang to answer during the question and answer period.

BIOBASED/RENEWABLE PRODUCTS

BRAG Biobased Products News And Policy Report: B&C consulting affiliate, B&C® Consortia Management, L.L.C. (BCCM), manages the Biobased and Renewable Products Advocacy Group (BRAG®). For access to a weekly summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go to http://www.braginfo.org.

LEGISLATIVE

Bipartisan, Bicameral Legislation Targets Industrial Emissions For Reductions: On July 25, 2019, Senators Sheldon Whitehouse (D-RI), Shelley Moore Capito (R-WV), Mike Braun (R-IN), Joe Manchin (D-WV), and Cory Booker (D-NJ), along with Representatives Sean Casten (D-IL), David McKinley (R-WV), Aumua Amata (R-AS-At Large), and Eddie Bernice Johnson (D-TX), introduced the Clean Industrial Technologies Act of 2019 (CITA) “to unleash innovation that will reduce greenhouse gas emissions from industrial sources and make American companies more competitive in the global economy.” According to a summary of the legislative effort, some 30 percent of greenhouse gas (GHG) emissions come from hard-to-reduce industrial sources, including heavy road and rail transport, shipping, aviation, chemical production, steel and cement production, and heat production. There are few technologies that would substantially reduce emissions from these sources, and the limited existing solutions remain costly. Spurring innovation that could be adopted by these industries would create an economic advantage and export opportunities as countries around the world expand emission reduction policies. Under CITA, the Department of Energy (DOE), in coordination with the Office of Science and Technology Policy (OSTP), would establish a new advisory council to coordinate funding for developing innovative technologies for industrial processes. The council would work with other federal agencies, national laboratories, industry, and higher education institutions to advance research and demonstration projects for reducing emissions in the industrial sector. DOE would also establish a technical assistance program to help states, local governments, and tribal organizations implement the low-carbon technologies. The bill has garnered broad support.

House Subcommittee Holds Hearing On EPA Advisory Committees: On July 16, 2019, the House Science, Space, and Technology Subcommittee on Investigations and Oversight and the Subcommittee on the Environment convened a hearing entitled “EPA Advisory Committees: How Science Should Inform Decisions.” The subcommittees convened to discuss a recent report released by the Government Accountability Office (GAO) highlighting the ways in which EPA had disregarded protocol when delegating two high-profile advisory panels, namely the Science Advisory Board and Clean Air Scientific Advisory Committee. GAO found that typical protocol procedures require EPA to choose candidates based upon career staff recommendations. Instead, GAO found that EPA opted to choose candidates from the entire roster. EPA responded by stating that the way in which they chose candidates for these two committees allowed for “a more rigorous examination of the candidates.” GAO found, however, that many of the candidates placed within these two committees have industry connections. Committee Chair Mikie Sherrill (D-NJ) opened the hearing by stressing the importance of advisory committees maintaining the balance between points of view and functions to be performed. Chair Lizzie Fletcher (D-TX) of the Subcommittee on Environment expressed serious concern over the findings of the GAO report. She stated “these committees are responsible for reviewing the science that underpins many agency decisions that directly impact public health.” Representative Ralph Norman (R-SC) stated that in 2017, 77 percent of committee members represented academia and, EPA’s “leadership followed the direction of the law as they worked to restore balance to this critical committee.” Testifying before the committees were Mr. J. Alfredo Gomez, Director, Natural Resources and Environment, GAO; Dr. Thomas A. Burke, Ph.D., MPH, Jacob I. and Irene B. Fabrikant Professor and Chair in Health Risk and Society, Bloomberg School of Public Health, Johns Hopkins University; Dr. Deborah Swackhamer, Professor Emerita, Humphrey School of Public Affairs, University of Minnesota; and Dr. Jonathan Samet, MD, MS, Dean, Colorado School of Public Health.

Representing GAO, Gomez described the three phases in which EPA is to select its committee members: soliciting nominations, evaluating candidates, and obtaining approvals from relevant EPA offices before the administrator or deputy administrator makes final decisions. Gomez added that GAO made suggestions to EPA, which included following the procedures put in place and strengthening oversight. Gomez also stated that 17 financial disclosure forms had not been signed or dated by EPA, thus raising the question about whether unknown and undocumented bias remains. Burke, who was a scientist for EPA until 2017, stated that science is the backbone of EPA, and essential to the EPA mission and the implementation of laws throughout the United States. The state of science in the EPA is in trouble, showing a “profound shift in priorities,” deregulation, and the “dismantling of the science infrastructure,” stated Burke. Swackhamer also stated similar concern regarding vested interests supporting the direction of the Agency, rather than the science itself. Burke concluded by stating that stakeholders play an important role in the process of decision making, but the “science should be left to the scientists.” Opening statements, an archived webcast of the hearing, and witness testimony are available online.

Bipartisan Senate Energy Bill Introduced: On July 17, 2019, Senators Rob Portman (R-OH) and Jeanne Shaheen (D-NH) introduced the Energy Savings and Industrial Competitiveness Act (ESIC) (S. 2137). The Senators have been pushing various versions of this legislation for over eight years. The bill is intended to improve energy efficiency in three sectors -- buildings, industrial, and the federal government. The legislation uses a variety of low-cost tools to help energy users become more efficient while making the country’s largest energy user -- the federal government -- reduce its energy use through the use of energy-efficient technology. The bill incentivizes the use of efficiency technologies that are commercially available today, can be widely deployed across the country, and will quickly pay for themselves through energy savings.

Regarding manufacturers, the bill directs DOE to work closely with private-sector partners to encourage research, development, and commercialization of innovative energy-efficient technology and processes for industrial applications. It also expands DOE’s Industrial Assessment Centers (IAC) to include community colleges and trade schools, and creates an internship and apprenticeship program within IAC. It would help manufacturers reduce energy use and become more competitive by incentivizing the use of more energy-efficient electric motors and transformers. The bill also would require the federal government to adopt energy savings techniques for computers. It would allow federal agencies to use existing funds to update plans for new federal buildings, using the most current building efficiency standards. The legislation also establishes long-term energy and water efficiency goals for the federal government.

Senate Committee Holds Hearing On Electric Battery Production And Waste: On July 17, 2019, the Senate Committee on Environment and Public Works (EPW) held a hearing entitled “Electric Battery Production and Waste: Opportunities and Challenges.” The purpose of the hearing was to evaluate the environmental challenges and opportunities associated with increased battery demand and disposal. The hearing featured testimony from James J. Greenberger, Executive Director of NAATBatt International; Michael Sanders, Senior Advisor of Avicenne Energy US; and Ajay Chawan, Associate Director of Navigant Consulting, Inc. EPW Chair John Barrasso (R-WY) stated that the global market for electric vehicles is expected to rise in coming years. Senator Barrasso stated that “By 2025, up to 90 percent of the global market for lithium-ion batteries will come from electric vehicles. This increase in demand, left unaddressed, will exacerbate current challenges associated with battery production and waste.” He noted that environmental challenges continue once a battery reaches the end of its life and that lithium-ion batteries are recycled at a rate of less than 5 percent. Between 2018 and 2030, more than 11 million tons of spent lithium-ion batteries will be discarded worldwide. “Now is the time for the committee to evaluate the looming waste challenge, as well as the opportunity that it presents,” Senator Barrasso stated. An archived webcast of the hearing and witness testimony are available online.

Bill Would Cancel Registration For Paraquat: On July 17, 2019, legislation introduced by Representative Nydia Velázquez (D-NY) would cancel the registration under FIFRA for paraquat. The bill (H.R. 3817) would cancel the registration of all uses of the pesticide.

House Passes Bill Creating Climate Security Panel: On July 17, 2019, the House passed a bill funding federal intelligence agencies. Tucked within the Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act for Fiscal Years 2018, 2019, and 2020 (H.R. 3494), however, is a provision creating the Climate Security Advisory Council. The bill requires the Director of National Intelligence to establish a Climate Security Advisory Council for the purpose of assisting intelligence analysts with respect to analysis of climate security and its impact on the areas of focus of such analysts; facilitating coordination between the intelligence community and the federal government in collecting data on, and conducting analysis of, climate change and climate security; and ensuring that the intelligence community is adequately prioritizing climate change in carrying out its activities. The council is to be chaired by a representative from the National Intelligence Council. Its other members are to include the lead officials on climate and environmental security analysis from the Central Intelligence Agency, the Bureau of Intelligence and Research of the Department of State, the National Geospatial-Intelligence Agency, the Office of Intelligence and Counterintelligence of DOE, the Office of the Under Secretary of Defense for Intelligence, and the Defense Intelligence Agency. The council is to meet at least quarterly.

House Subcommittee Examines Scientific Integrity In Federal Agencies: On July 17, 2019, the House Science, Space, and Technology Subcommittee on Research and Technology and the Subcommittee on Investigations and Oversight convened a hearing to discuss the Scientific Integrity Act. The Scientific Integrity Act requires that federal agencies that fund science maintain clear scientific integrity principles, clarifies that science should determine policy, and holds scientists to the highest standards. Chair Haley Stevens (D-MI) of the Subcommittee of Research and Technology opened the hearing by stating that the Act is a neutral set of principles that ensures that federal agencies rely on facts and data to keep citizens safe, regardless of politics. Congressman Paul Tonko (D-NY) stated that science tries to tell the truth, and when scientific knowledge is lost, American people pay the price. Testifying before the subcommittees were Mr. John Neumann, Managing Director, Science, Technology Assessment, and Analytics, GAO; Mr. Michael Halpern, Deputy Director, Center for Science and Democracy, Union of Concerned Scientists; Dr. Roger Pielke Jr., Director, Sports Governance Center, Professor, Environmental Studies Program, University of Colorado; and Mr. Joel Clement, Arctic Initiative Senior Fellow, Belfer Center for Science and International Affairs, Harvard Kennedy School.

Neumann, Halpern, and Clement all stated that science is science, and not a political matter. Scientific integrity is respecting the process of conducting science, stated Pielke. He added that science can be answered by science, but policy is deciding what we do with those facts. As a scientist himself, Clement stated how he was silenced from stating the facts he discovered. While conducting research in Alaska, the weather trends he observed supported evidence of climate change. When he shared this knowledge with the public, he was soon after reassigned to a position in which he had no prior experience. “When we disregard science, we leave the best player on the sideline,” stated Clement. He added that scientists do not assume their science will become policy, but they do expect it to be respected. He also stated that the current Administration is suppressing information and scientific language. Science exemplifies clear facts, and there need to be clear lines of communication from those who conduct the research. When language is suppressed, scientists cannot be transparent with the public thus the truth becomes a game of telephone, stated Halpern. Passing the Scientific Integrity Act would enable scientists to use the proper language to present the evidence, while enabling those in policy roles to make the best decisions, given the facts before them. Member statements, witness testimony, and an archived webcast of the hearing are available online.

Legislation Seeks To Reduce Emissions From Transportation Sector: On July 18, 2019, Representative Lloyd Doggett (D-TX), Chair of the House Ways and Means Health Subcommittee, and Representative Earl Blumenauer (D-OR), Chair of the House Ways and Means Trade Subcommittee, introduced the Green Transportation Act. The legislation would require states and metropolitan planning organizations (MPO) to include GHG emissions reductions in their long-range public transit and highway planning. To support MPOs and states with this effort, the bill allows Fixing America’s Surface Transportation (FAST) Act funding to be used to develop standardized models and methodologies for measuring and monitoring GHG emissions. It also directs the Department of Transportation (DOT) to create a clearinghouse of these best practices. Congressmen Doggett and Blumenauer are both members of the Safe Climate Caucus and the House Sustainable Energy and Environment Coalition, and longtime champions of sustainable, green infrastructure.

House Energy And Commerce Committee Announces Sweeping Plan To Achieve Clean Economy By 2050: On July 23, 2019, the leaders of the House Energy and Commerce Committee announced a plan to make the U.S. economy “clean” over the next three decades. Energy and Commerce Chair Frank Pallone, Jr. (D-NJ), Environment and Climate Change Subcommittee Chair Paul Tonko (D-NY), and Energy Subcommittee Chair Bobby L. Rush (D-IL) announced that the committee is adopting a strategy to achieve a 100 percent clean economy by 2050. Over the coming months, the Energy and Commerce Committee will hold hearings and stakeholder meetings to hear the best ideas for developing “a deep decarbonization strategy,” according to Pallone. The intended outcome of this process is to enact comprehensive climate legislation to address the climate crisis and facilitate the transition of the U.S. economy to net zero GHG pollution by 2050.

Environmental Justice Bills Introduced In Senate And House: On July 23, 2019, Senator Cory Booker (D-NJ) introduced legislation “to address the environmental injustices that harm communities of color, low-income communities, and indigenous communities around the country.” The Environmental Justice Act of 2019 (S. 2236) would require federal agencies to mitigate environmental injustices and would strengthen the legal protections of those affected by environmental injustices. Representative Raul Ruiz (D-CA) introduced companion legislation (H.R. 3923) in the House. The bill would codify and expand the 1994 Executive Order (EO) on Environmental Justice (EO 12898). It also would codify the National Environmental Justice Advisory Council (NEJAC) and environmental justice grant programs. Under the bill, federal agencies would be required to implement and update annually a strategy to address negative environmental and health impacts on populations and communities of color, indigenous communities, and low-income communities. In addition, the bill codifies Council on Environmental Quality guidance to assist federal agencies with their National Environmental Policy Act procedures so that environmental justice concerns are addressed. The bill also codifies existing EPA guidance to enhance EPA’s consultations with Native American tribes in situations where tribal treaty rights may be affected by a proposed EPA action. The bill would require consideration of cumulative impacts and persistent violations in federal or state permitting decisions under the Clean Water Act (CWA) and the CAA.

House Subcommittee Holds Hearing On White House Science Office: On July 24, 2019, the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies held a hearing to examine the budget for the White House OSTP. Subcommittee Chair José Serrano (D-NY) opened the hearing by emphasizing the vital role that OSTP plays in informing the President on scientific matters. Serrano expressed concern for the current Administration not addressing climate change, and “relentless pursuit to deny it.” He stated that the White House has attempted to bury unbiased research. This occurred when “White House officials refused to allow him to submit a written statement” by a State Department official, Rod Schoonover, expressing “possibly catastrophic” U.S. security threats due to climate change. Robert Aderholt stated that OSTP ensures that the United States is investing in cutting-edge industries, including artificial intelligence. The sole witness before the subcommittee was Dr. Kelvin Droegemeier, OSTP Director. Droegemeier stated that “this bold new era is the most exciting time to be involved in research.” He added that the work of OSTP ensures that federal research upholds integrity, safety, and productivity. He argued against cuts to science, and when questioned about recent Administration budget cuts to several science-based agencies, Droegemeier stated, “The budget was already put in place when I began my position.” When questioned regarding the Presidential Committee on Climate Security, he replied that this committee does not exist.

Droegemeier stressed the importance of science to be conducted free from political interference. He placed strong emphasis on STEM, artificial intelligence, and bringing public and private sectors together through partnerships. Droegemeier stated that he cared deeply about the joint committee and the importance for research environments to reflect American values through “leading the world in science and technology.” He stressed that if the research environment is wrong, then “we lose research itself.” An archived webcast of the hearing is available online.

House Subcommittee Examines PFAS Contamination: On July 24, 2019, the House Oversight and Reform Subcommittee on the Environment convened a hearing to discuss the chemical industry’s past and current production of per- and polyfluoroalkyl substances (PFAS) in the United States. Chair Harley Rouda (D-CA) opened the hearing by stating that PFAS chemicals should be regarded as toxic. They are man-made chemicals that accumulate in the body and do not break down, he said. EPA’s Assistant Administrator for the Office of Water, David Ross, agreed that PFAS contamination is “a national emergency.” Ranking member James Comer (R-KY) expressed his commitment to working with colleagues to decrease risk of future harm and stressed the importance of making “responsible evidence-based science driven decisions.” Testifying before the subcommittee on its first panel of witnesses were Bucky Bailey, Affected Resident and Activist, Parkersburg, West Virginia; Emily Donovan, Co-Founder, Clean Cape Fear; and Sandy Wynn-Stelt, Affected Resident and Activist, Belmont, Michigan.

Bailey, Donovan, and Wynn-Stelt stated that their communities experienced extremely high levels of cancer. Wynn-Stelt’s husband died suddenly from lung cancer, and soon after she discovered that PFAS chemicals had contaminated 25 square miles of groundwater near her home for decades. Donovan’s husband had a brain tumor removed. Bailey’s mother worked for DuPont and was exposed to PFAS chemicals throughout her pregnancy. Bailey was born with extreme birth defects, was not expected to survive, and had to undergo dozens of reconstructive surgeries. Because of his exposure, he said that he and his children are prone to a multitude of adverse health effects. Testifying before the subcommittee on the second panel were Dr. Jamie C. DeWitt, Associate Professor, Department of Pharmacology and Toxicology, Brody School of Medicine, East Carolina University; Glenn Evers, President, IS2 Consulting, Former Research Scientist, DuPont; Catherine R. McCabe, Commissioner, New Jersey Department of Environmental Protection; Robert R. Scott, Commissioner, New Hampshire Department of Environmental Services; Steve Sliver, Executive Director, Michigan PFAS Action Response Team, Michigan Department of Environment, Great Lakes, and Energy; and Jane C. Luxton (minority witness), Co-Chair, Environmental and Administrative Law Practice, Lewis Brisbois Bisgaard & Smith LLP.

Scott and Sliver both opened by stating that their main goal was to “protect public health.” DeWitt stated that although PFAS chemicals may be different individually, they are part of the same class. Evers, a former scientist for DuPont, added that PFAS chemicals are not biodegradable and that they accumulate in the blood. Evers described a research study done by DuPont to determine the effects of PFAS chemicals on dogs. When dogs were exposed to the chemicals over a three-month period, they developed bloated livers and lesions throughout the body. McCabe and Luxton agreed that not enough thorough testing has been done, and McCabe suggested that “TSCA directs chemical companies to produce studies before allowing chemicals to enter the market place.” DeWitt stated that as of 2017 pollutants were the leading cause of premature death in the United States. In order for doctors to treat their patients, there needs to be more information provided to them, stated DeWitt. Andy Levin (D-MI) stated that he feared PFAS “is the DDT of our time.” In response to this statement, McCabe stated “we are innovative; we can find alternative solutions, but someone needs to make us do that. Congress needs to act.” Scott also stressed that PFAS “isn’t a state issue, but an everywhere issue,” and that both industry and EPA need to work together. Luxton stressed that “regulation must be data driven and based on scientific process” to stand up against judicial review. Luxton and McCabe also touched upon possible mechanisms to extract the PFAS in groundwater sources, such as reverse osmosis or carbon treatment. Both systems are extremely expensive. Witness testimonies and an archived webcast of the hearing are available online.

Bicameral, Bipartisan Bills Would Expand And Renew Great Lakes Initiative: On July 25, 2019, bipartisan legislation was introduced in both the Senate and the House to reauthorize the Great Lakes Restoration Initiative (GLRI). The bills, S. 2295 and H.R. 4031, are entitled the Great Lakes Restoration Initiative Act of 2019. They would amend the CWA to reauthorize the GLRI for another five years. The GLRI is set to expire at the end of FY 2021. The bills also would boost the current authorization level from $300 million to $375 million in FY 2022 and increase funding by $25 million per year until it reaches $475 million in FY 2026.

Senate Bill Would Abolish Corn Ethanol Mandate Under The RFS: On July 25, 2019, Senators Pat Toomey (R-PA) and Dianne Feinstein (D-CA) introduced a bill that is intended “to end an egregious form of corporate welfare that hurts the environment and drives up the cost of everything from gasoline to groceries.” The Restore Environmental Sustainability to Our Renewable Energy (RESTORE) Act (S. 2298) would abolish the corn ethanol mandate in the Renewable Fuel Standard (RFS). The RFS, first enacted in 2005, requires refiners and blenders to use more than 19 billion gallons of renewable fuel this year. Approximately 80 percent of this total will be met by the use of corn ethanol. According to the lawmakers, there are three key problems with continuing to mandate the consumption of more and more corn ethanol each year:

  • Corn consumption: Approximately 40 percent of the U.S. corn crop is used to produce ethanol, artificially inflating food and feed prices while damaging the environment;
     
  • Blend wall: As gasoline consumption declines, refiners face a “blend wall” when the RFS mandate exceeds the limit at which ethanol can be blended into the fuel supply, determined to be 10 percent of total gasoline consumption. Anything beyond 10 percent ethanol can damage engines; and
     
  • Negative environmental impacts: Unnecessary mandates incentivize cropland expansion, which interrupts ecosystems via deforestation, habitat destruction, and, in some cases, diminished water quality or availability.
     

“Frack Pack” Would Regulate Fracking Operations: On July 25, 2019, lawmakers in the House introduced a package of bills seeking to eliminate several exemptions under environmental laws for activities associated with hydraulic fracturing, or “fracking.” Dubbed the “Frack Pack,” the bills include two introduced by Representative Matt Cartwright (D-PA). The CLEANER Act (H.R. 4006) would eliminate the exemption from hazardous waste regulation under RCRA for wastes from the exploration and development of natural gas and geothermal energy. Cartwright’s FRESHER Act (H.R. 4007) would “close the loophole for oil and gas companies in the Clean Water Act, and will mandate a study on the effects of stormwater runoff from these industries’ operations.” The BREATHE Act, introduced by Representative Yvette Clarke (D-NY), is intended to prevent toxic air pollution by reversing the exemption of oil and gas exploration and production activities. Representative Diana DeGette (D-CO) introduced the FRAC Act, which would eliminate exemptions for oil and natural gas industries under the Safe Drinking Water Act (SDWA). Under her bill, companies engaged in fracking would be required to disclose to the public the chemicals they inject into oil and gas wells. The SHARED Act, introduced by Representative Jan Schakowsky (D-IL), would require testing for water contamination near fracking sites.

Representative Omar Introduces Zero Waste Act: On July 25, 2019, Representative Ilhan Omar (D-MN) introduced the Zero Waste Act (H.R. 4050). The bill is intended to invest in solutions “that address the waste epidemic plaguing our country.” Funds would be dedicated to “reducing landfills and incinerators that emit toxic pollution into our communities, especially in low income communities or communities of color.” The bill would create a federal grant program to help local cities to invest in zero waste initiatives. These funds can go toward recycling infrastructure or toward the creation of partnerships with local businesses aimed at reducing waste in their operations.

Climate Action Rebate Act Introduced In Both Houses: On July 25, 2019, lawmakers in the House and Senate introduced a carbon tax proposal. The Climate Action Rebate Act (S. 2284) was introduced in the Senate by Chris Coons (D-DE) and Dianne Feinstein (D-CA). Companion legislation (H.R. 4051) was introduced in the House by Representative Jimmy Panetta (D-CA). The legislation seeks to reduce carbon emissions in the United States by 55 percent by 2030 and 100 percent by 2050. The Climate Action Rebate Act places an increasing price on carbon and other GHG emissions. The majority of revenues received from the legislation will be returned directly to the American people in the form of a monthly dividend to households with incomes below $150,000, protecting energy consumers and low- and middle-income Americans. The remainder of the revenue will be directed toward programs that support climate-resilient infrastructure, energy innovation, and assistance for vulnerable workers and communities. The carbon tax would start at $15 per metric ton of carbon dioxide emitted and would adjust for GHG potential. Certain activities, such as carbon capture and other uses that do not result in emissions, would be exempt from the tax or eligible for rebates.

Gillibrand Introduces $10 Trillion Climate Plan: On July 25, 2019, Presidential candidate Senator Kirsten Gillibrand (D-NY) introduced a plan to neutralize carbon emissions in the United States by 2050. Senator Gillibrand’s plan would place a $52 per metric ton tax on carbon. It also would authorize annual expenditures of $200 billion on renewable energy and slap a separate fossil fuel excise tax to generate $100 billion per year on projects to adapt to climate change.

House Bill Would Provide Payroll Tax Relief In Exchange For Carbon Costs: On July 25, 2019, Representative Francis Rooney (R-FL) introduced legislation that would be “a carbon pricing bill . . . to provide tax relief for hardworking Americans while imposing the costs of carbon on the big polluters who are damaging our environment.” The Stemming Warming and Augmenting Pay (SWAP) Act (H.R. 4058) bill would charge fossil fuel producers and large industrial emitters $30 per metric ton of carbon dioxide equivalent with an annual increase of 5 percent plus inflation. For every two years that emissions reductions are behind goals, an automatic $3 per ton increase will be imposed. Some 70 percent of net revenue raised by the fees would be used to reduce individual, employer, or self-filing payroll taxes, amounting to a nearly 1 percent cut in the total payroll tax rate. Approximately 10 percent of the net revenue would be paid to Social Security beneficiaries, and the remaining 20 percent of the revenue would be used to establish a carbon trust fund that would be designated for state block grants used to offset higher energy costs for low-income households and advanced research and development programs on climate adaptation and energy efficiency. The bill also places a 12-year moratorium on CAA regulations that can be removed if emissions targets are not met.

Raise Wages, Cut Carbon Act Introduced: On July 25, 2019, Representative Dan Lipinski (D-IL) introduced a bill to cut payroll taxes, financed by a fee on carbon emissions. The bill (H.R. 3966) would impose a fee starting in 2020 of $40 per ton of carbon dioxide. The fee would increase by 2.5 percent plus inflation for every year that the United States does not meet emissions reduction targets, thereby allowing the price to adjust gradually based on market signals until emissions reduction targets are met. Coal, petroleum, and natural gas would all be taxed where they enter the U.S. economy -- at the mine, pipeline, or at the U.S. border. The bill also imposes a tax on fossil fuel imports, except where they have already been taxed in their country of origin.

Two CERCLA Bills Introduced In House: On July 26, 2019, Representative Earl Blumenauer (D-OR) introduced a brace of bills seeking to amend CERCLA (or Superfund). The first bill, H.R. 4087, would subject certain “landlocked” releases of petroleum to CERCLA authorities. Petroleum is generally exempt from CERCLA’s response actions and liability provisions. The second bill, H.R. 4088, seeks to amend the Internal Revenue Code to provide for the use of funds in the Hazardous Substances Superfund for the purposes for which they were collected and to ensure adequate resources for the cleanup of hazardous substances under CERCLA.

Senate EPW Committee Unanimously Advances Most Substantial Highway Legislation In History Including First-Ever Climate Title: On July 30, 2019, the Senate EPW Committee unanimously approved a major highway bill that, for the first time in a highway bill, contains climate change provisions. The panel approved S. 2302, America's Transportation Infrastructure Act, by a roll call vote of 21-0. The bill authorizes $287 billion over five years, including $259 billion for formula programs to maintain and repair America’s roads and bridges. The total represents an increase of more than 27 percent from previous levels. The legislation includes provisions to improve road safety, streamline project delivery, protect the environment, and grow the economy. The legislation also includes a first-ever climate change title that is intended to ensure that infrastructure is resilient to natural disasters and that reduces carbon emissions from transportation. The bill devotes $10 billion toward climate change measures.

Senate Finance Committee Examines USMCA: On July 30, 2019, the Senate Finance Committee convened a hearing to discuss the U.S. - Mexico - Canada Agreement (USMCA), the heir apparent to replace the North American Free Trade Agreement (NAFTA). Chair Chuck Grassley (R-IA) opened the hearing by stating “the time for modernizing NAFTA had come. … USMCA sets a new standard for trade agreements, which includes digital trade, and regulatory practices.” Grassley claimed that the environmental and labor provisions in the USMCA are the most rigorous in any U.S. trade deal and are fully enforceable. Although not all outcomes and regulations are perfect, “many compromises have been made to please many industries,” he stated. Ranking Member Ron Wyden (D-OR) stated that the original NAFTA needs bold upgrades. This means addressing challenges for businesses that operate online, protecting labor rights, and preventing the race to the bottom when it comes to the environment. Wyden stated that this new agreement will ensure predictability and certainty. Testifying before the subcommittee were Paula Elaine Barnett, owner, Paula Elaine Barnett Jewelry; Matt Blunt, President, American Automotive Policy Council; James Collins, CEO, Corteva Agriscience; Derek Leathers, President and CEO, Werner Enterprises; Tom Vilsack, President and CEO, Dairy Export Council; and Michael Wessel, President, the Wessel Group and the Labor Advisory Committee for Trade Negotiations and Trade Policy.

All of the witnesses testified that USMCA would enable their business or affiliated industry to flourish and thus bolster the U.S. economy. Collins stated that for farmers, trade is the key to success. Vilsack stated that 28 percent of all U.S. food exports go to Mexico and Canada. Blunt stated that new rules in the agreement would strongly incentivize new investments and create more U.S. jobs. Blunt also stated, “USMCA will not only help bring much needed predictability … [, but] will also serve as a blueprint for future U.S. trade agreements, allowing our automakers to thrive in the increasingly global auto market.” Leathers stated, “border shutdown is a concern to me because it is a concern to my customer.” All of the witnesses echoed a similar refrain about the uncertainty associated with trade. Collins stated that “farmers order months ahead and need certainty of demand in order to make decisions” and Leathers added that the USMCA provided a “framework to certainty.” Leathers stated that USMCA accounts for “technology we must include today such as Internet and digital.” Wessel stated that current NAFTA has had negative effects on labor in the United States, that “enforcement is only as good as the standards, and laws put in place.” He stated that the United States has lost jobs to Mexico because of lower wages and substandard labor and environmental standards within the country. Leathers added that USMCA would be a “step forward in labor, but an environmental step back.” Senator Sheldon Whitehouse (D-RI) bemoaned that USMCA looks bleak on the environmental side. It “doesn’t even mention climate change, or address environmental issues, but rather protects polluting industries and intimidates small countries.” Senator Sherrod Brown (D-OH) complained that USMCA is no different from NAFTA. It “allows companies to avoid U.S. labor standards and environmental issues.” He concluded, stating, “We need to stop the race to the bottom.” Member statements, witness testimony, and an archived webcast of the hearing are available online.

MISCELLANEOUS

Multiple Lawsuits Seek Review Of EPA’s Final Rule Amending FOIA Regulations: On July 23, 2019, the Citizens for Responsibility and Ethics in Washington (CREW) filed suit in the U.S. District Court for the District of Columbia challenging EPA’s June 26, 2019, final rule amending its Freedom of Information Act (FOIA) regulations. CREW v. EPA, No. 19-2181. According to CREW, the rule “expressly authorizes political appointees to make ‘final determinations’ on FOIA requests, rather than leaving those decisions to career officials who have the experience and qualifications necessary to make FOIA determinations.” CREW states that EPA “hastily adopted” the final rule without following the Administrative Procedure Act’s (APA) notice-and-comment requirements and that the final rule does not fit the “procedural rule” and “good cause” exceptions to the APA’s rulemaking procedures. CREW asks that the court vacate the final rule. The Ecological Rights Foundation (EcoRights) and Our Children’s Earth Foundation (OCE) also challenged the rule, filing suit on July 24, 2019, in the U.S. District Court for the Northern District of California. According to their complaint, EPA’s final rule “violate[s] the letter and spirit of FOIA and represent[s] the latest example of EPA’s ongoing attack on government transparency and accountability.” The complaint claims that promulgation of the final rule was procedurally illegal because EPA issued the final rule without a notice and comment period. The groups seek an order declaring that the final rule is illegal and requiring that EPA provide at least a 30-day public comment period before promulgating new FOIA regulations.

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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