Monthly Update for January 2020


Forecast For U.S. Federal And International Chemical Regulatory Policy 2020: Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate The Acta Group (Acta®) are pleased to offer you our Forecast 2020. In this detailed and comprehensive document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and policy, and provide our best informed judgment as to the shape of key developments we are likely to see in the New Year. The full memorandum can be downloaded as a PDF here. B&C’s podcast All Things ChemicalTM has released a special episode in conjunction with the Forecast featuring Lynn L. Bergeson, Sheryl Lindros Dolan, Chris Bryant, and Dr. Richard Engler engaging in spirited discussion about what is in the pipeline for 2020. Search All Things Chemical on your favorite podcasting service, or stream the episode here to listen!

Environmental Law 2020, February 6-7, 2020, Washington, D.C., And Via Webinar: The American Law Institute Continuing Legal Education (ALI CLE) and Environmental Law Institute (ELI) will present the two-day Environmental Law 2020 course, covering the latest developments in natural resources, climate, chemical, and endangered species law, as well as what is to come from the Supreme Court and under the current Administration and Congress. B&C is a proud sponsor. Lynn L. Bergeson, Managing Partner, B&C, will present “Toxic Substances and Emerging Contaminants: Legal Issues and Latest Developments.”

TSCA/FIFRA/TRI

EPA Extends Comment Period For Draft Risk Evaluation For NMP: The U.S. Environmental Protection Agency (EPA) announced on January 3, 2020, that it is extending the public comment period for the draft risk evaluation of N-methylpyrrolidone (NMP) to give stakeholders more time to review and comment on the draft document. 85 Fed. Reg. 310. Comments are now due January 21, 2020. EPA states that it will use feedback received from the public comment process, along with input from the Science Advisory Committee on Chemicals (SACC), to inform the final risk evaluation for NMP. If the final risk evaluation for NMP finds there are unreasonable risks under any of the specific conditions of use, EPA will propose actions to address those risks within the timeframe required by the Toxic Substances Control Act (TSCA). More information on the draft risk evaluation is available in our November 5, 2019, memorandum, “EPA Releases Draft Risk Evaluation for NMP, Schedules SACC Review for December.”

EPA Publishes Final List Of 20 High-Priority Chemicals: On December 30, 2019, EPA published the final list of high-priority chemicals. 84 Fed. Reg. 71924. These chemicals will be the next 20 chemicals to undergo risk evaluation under the amended TSCA. According to EPA, issuing the final list of high-priority chemicals for risk evaluation “represents the final step in the prioritization process outlined in TSCA and marks another major TSCA milestone for EPA in its efforts to ensure the safety of existing chemicals in the marketplace.” The 20 chemicals consist of seven chlorinated solvents, six phthalates, four flame retardants, formaldehyde, a fragrance additive, and a polymer precursor:

Chemical Name Docket Number
p-Dichlorobenzene EPA-HQ-OPPT-2018-0446
1,2-Dichloroethane EPA-HQ-OPPT-2018-0427
trans-1,2-Dichloroethylene EPA-HQ-OPPT-2018-0465
o-Dichlorobenzene EPA-HQ-OPPT-2018-0444
1,1,2-Trichloroethane EPA-HQ-OPPT-2018-0421
1,2-Dichloropropane EPA-HQ-OPPT-2018-0428
1,1-Dichloroethane EPA-HQ-OPPT-2018-0426
Dibutyl phthalate (DBP) (1,2-Benzenedicarboxylic acid, 1,2- dibutyl ester) EPA-HQ-OPPT-2018-0503
Butyl benzyl phthalate (BBP) (1,2-Benzenedicarboxylic acid, 1-butyl 2-(phenylmethyl) ester) EPA-HQ-OPPT-2018-0501
Di-ethylhexyl phthalate (DEHP) (1,2-Benzenedicarboxylic acid, 1,2-bis(2-ethylhexyl) ester) EPA-HQ-OPPT-2018-0433
Di-isobutyl phthalate (DIBP) (1,2-Benzenedicarboxylic acid, 1,2-bis-(2-methylpropyl) ester) EPA-HQ-OPPT-2018-0434
Dicyclohexyl phthalate EPA-HQ-OPPT-2018-0504
4,4'-(1-Methylethylidene)bis[2,6-dibromophenol] (TBBPA) EPA-HQ-OPPT-2018-0462
Tris(2-chloroethyl) phosphate (TCEP) EPA-HQ-OPPT-2018-0476
Phosphoric acid, triphenyl ester (TPP) EPA-HQ-OPPT-2018-0458
Ethylene dibromide EPA-HQ-OPPT-2018-0488
1,3-Butadiene EPA-HQ-OPPT-2018-0451
1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2-benzopyran (HHCB) EPA-HQ-OPPT-2018-0430
Formaldehyde EPA-HQ-OPPT-2018-0438
Phthalic anhydride EPA-HQ-OPPT-2018-0459

The action was effective on December 20, 2019. More information is available in our memorandum.

EPA Releases Updated Version Of “Working Approach” Document For New Chemicals Review: On January 2, 2020. EPA published a Federal Register notice on its updated version of the “Working Approach” document that builds upon EPA’s November 2017 “New Chemicals Decision-Making Framework: Working Approach to Making Determinations under Section 5 of TSCA.” 85 Fed. Reg. 99. The updated document explains its approach for making one of the five affirmative determinations on new chemical notices under TSCA:

  1. The chemical or significant new use presents an unreasonable risk of injury to health or the environment;
     
  2. Available information is insufficient to allow EPA to make a reasoned evaluation of the health and environmental effects associated with the chemical or significant new use;
     
  3. In the absence of sufficient information, the chemical or significant new use may present an unreasonable risk of injury to health or the environment;
     
  4. The chemical is or will be produced in substantial quantities and either enters or may enter the environment in substantial quantities or there is or may be significant or substantial exposure to the chemical; or
     
  5. The chemical or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
     

EPA notes that the updated document reflects feedback from a 2017 public meeting and comment period and EPA’s additional experience implementing the 2016 amendments to TSCA Section 5, and includes:

  1. Additional clarification and detail throughout;
     
  2. General guiding principles and concepts for making determinations;
     
  3. Decision-making logic and key questions that EPA must address; and
     
  4. Example applications of the Working Approach to reach each of the affirmative determinations under TSCA Section 5(a)(3).

EPA has posted a document summarizing public comments received on the 2017 document and its responses. More information is available in our December 20, 2019, memorandum, “EPA Releases Updated Version of ‘Working Approach’ Document for New Chemicals Review.” Comments are due February 18, 2020.

European Union To Ban Chlorpyrifos After January 31, 2020: On December 6, 2019, the European Union (EU) announced that it will no longer permit sales of chlorpyrifos after January 31, 2020. The Standing Committee on Plants, Animals, Food and Feed (PAFF Committee) voted in favor of two draft Implementing Regulations that denied the renewal of approvals for chlorpyrifos and chlorpyrifos-methyl. The European Commission (EC) is expected to adopt formally the regulations in January 2020. At that time, Member States will need to withdraw authorizations for products containing chlorpyrifos and chlorpyrifos-methyl as active substances and may implement a grace period, at a maximum of three months, for final storage, disposal, and use of the substances. More information is available in our blog.

New Joint Website On Agricultural Biotechnology Products Launched By EPA, USDA, And FDA: On January 9, 2020, EPA’s Office of Pesticide Programs (OPP) announced the launch of a new website created in coordination with the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) that provides information about actions the federal government is taking to oversee the development of agricultural biotechnology products. This “one-stop-shop” website was created under the direction of Executive Order (EO) “Modernizing the Regulatory Framework for Agricultural Biotechnology Products.” More information can be found in our blog.

EPA Adjusts Civil Monetary Penalties To Reflect Inflation: EPA promulgated a final rule on January 13, 2020, to adjust the level of the maximum (and minimum) statutory civil monetary penalty amounts under the statutes it administers, including TSCA. 85 Fed. Reg. 1751. EPA states that this action is mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended through the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act). The 2015 Act prescribes a formula for annually adjusting the statutory maximum (and minimum) amount of civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law. EPA notes that the rule does not necessarily revise the penalty amounts that it chooses to seek pursuant to its civil penalty policies in a particular case. EPA’s civil penalty policies, which guide enforcement personnel on how to exercise EPA’s statutory penalty authorities, take into account a number of fact-specific considerations, e.g., the seriousness of the violation, the violator’s good faith efforts to comply, any economic benefit gained by the violator as a result of its noncompliance, and a violator’s ability to pay. The final rule was effective January 13, 2020.

EPA Issues Proposed Interim Registration Review Decisions To Require New Risk Mitigation Measures For Three Triazine Herbicides: On January 2, 2020, EPA announced the availability of a Proposed Interim Decision (PID) in the ongoing registration review process for each of the three registered triazine herbicides: atrazine, propazine, and simazine. 85 Fed. Reg. 93. EPA can utilize an “interim registration review decision” under 40 C.F.R. Section 155.56 whenever it is not yet ready to complete the registration review process, but EPA has nonetheless completed sufficient review to determine that new or interim risk mitigation measures are needed or that additional data or information should be submitted to complete the review. For each of the three triazine herbicides, EPA is proposing to impose specific risk mitigation measures for particular registered uses to mitigate potential health and environmental risks. For each triazine herbicide, EPA is not yet ready to make a final registration review decision because EPA has not made findings in the Endocrine Disruptor Screening Program (EDSP) or an effects determination under the Endangered Species Act (ESA). Several key factors that will affect the final registration review decision for each of the triazine herbicides are discussed in our blog. Comments are due March 2, 2020.

EPA Announces January 22, 2020, Webinar On Reducing Vertebrate Animal Testing: EPA announced on January 15, 2020, that it is partnering with People for the Ethical Treatment of Animals (PETA) and Physicians for Responsible Medicine (PCRM) to host public webinars on various topics related to reducing, refining, or replacing vertebrate animal testing. A webinar will be held on January 22, 2020, covering the use and application of the Collaborative Acute Toxicity Modeling Suite (CATMoS), a free resource for screening organic chemicals for acute oral toxicity. The webinar will offer a walk-through of how to use the modeling suite to generate acute oral toxicity predictions for chemicals of interest. EPA notes that it “does not necessarily endorse the views of the speakers.”

RCRA/CERCLA/CWA/CAA/PHMSA/SDWA

EPA Proposes Revisions To Miscellaneous Organic Chemical NESHAP: On December 17, 2019, EPA proposed revisions to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the miscellaneous organic chemical sector. 84 Fed. Reg 69182. The proposal is the culmination of EPA’s risk and technology review for the sector, which EPA is required to conduct under the Clean Air Act (CAA) every five years. EPA is proposing revisions to the standards for equipment leaks and heat exchange systems and also is proposing amendments to address ethylene oxide emissions from storage tanks, process vents, and equipment leaks. EPA is also proposing amendments to correct and clarify regulatory provisions related to emissions during periods of startup, shutdown, and malfunction (SSM), including removing general exemptions for periods of SSM, adding work practice standards for periods of SSM where appropriate, and clarifying regulatory provisions for certain vent control bypasses. EPA also proposes to add monitoring and operational requirements for flares that control ethylene oxide emissions and flares used to control emissions from processes that produce olefins and polyolefins, and add provisions for electronic reporting of performance test results and reports, performance evaluation reports, and compliance reports. If EPA promulgates the changes in final, it estimates that the revisions would reduce hazardous air pollutants (HAP) emissions from this source category by 116 tons per year (tpy) and would reduce ethylene oxide emissions from this source category by approximately 10 tpy. The comment period closes on January 31, 2020.

Department Of Energy Takes Action On Long-Term Storage And Management Of Elemental Mercury: In addition to banning the export of elemental mercury from the U.S. as of January 1, 2013, the Mercury Export Ban Act of 2008 (Public Law No. 110-414) (MEBA) required the Department of Energy (DOE) to establish a facility for the long-term management and storage of elemental mercury generated within the U.S. On December 3, 2019, DOE signed a Record of Decision (ROD) for the long-term management and storage of elemental mercury to address the federal government’s responsibility as required by Section 5 of the MEBA, as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Public Law 114-182). This ROD announces DOE’s decision to store up to 6,800 metric tons (7,480 tons) of elemental mercury in existing buildings at the Waste Control Specialists LLC (WCS) site near Andrews, Texas. The waste is generated by gold mining companies and other entities. After issuance of the ROD, DOE will award a contract to lease storage space and issue a Federal Register notice designating the facility as a DOE facility for long-term management and storage of elemental mercury. On December 23, 2019, DOE also promulgated a final rule on an elemental mercury storage fee. 84 Fed. Reg. 70402. The fee is $37,000 for 1 ton of elemental mercury delivered to the WCS site. Once the elemental mercury is delivered, the DOE takes custody of it and assumes liability from the generator. Because generators are not obligated to ship mercury to the WCS site, the transfer of liability is intended to be an incentive to make use of the facility, thereby ensuring what the government believes to be a high level of protection against environmental accidents involving mercury or other uses of the substances that may violate federal law or otherwise endanger people or the environment.

FDA

FDA Responds To Objections Regarding Color Additive: On December 19, 2019, FDA responded to objections raised by the Center for Food Safety regarding the final rule “Listing of Color Additives Exempt from Certification; Soy Leghemoglobin.” 84 Fed. Reg. 69620. FDA concluded that the objections do not warrant a hearing and lifted an administrative stay for the color additive regulation, which permits use of soy leghemoglobin as a color additive in ground beef analogue products.

FDA Releases Serving Size Guidance For Industry: On December 31, 2019, FDA announced the availability of a final guidance document titled “Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion, Reference Amounts Customarily Consumed, Serving Size-Related Issues, Dual-Column Labeling, and Miscellaneous Topics.” 84 Fed. Reg. 72230. The guidance, intended for conventional food and dietary supplement manufacturers, summarizes FDA’s final rules for Nutrition and Supplement Facts labels and includes FDA’s responses to various labeling questions, such as:

  • What is the definition of a single-serving container?
     
  • How do I determine the number of servings for my food product?
     
  • What are the requirements for mandatory dual-column labeling?
     

FDA is accepting comments for this final guidance at any time.

FDA Announces Data Strategy Meeting: On January 8, 2020, FDA announced that a public meeting titled “Modernizing FDA’s Data Strategy” will be held on March 27, 2020. 85 Fed. Reg. 924. Topics to be covered include standards and policy; data security, privacy, and management; and data strategies and data sharing. Questions to be addressed in the meeting include:

  • How can FDA design its data strategy to reflect a global marketplace and promote clarity to data providers like regulated industry and other stakeholders?
     
  • For stakeholders, including regulated industry, that submit data to FDA, how can FDA enhance the efficiency of the preparation and submission of data to FDA?
     

Interested parties should register by March 24, 2020, and written comments should be submitted to FDA by April 30, 2020. Please see the announcement for additional details.

FDA Announces Public Meeting Relating To Test Methods For Asbestos In Talc Products: On January 10, 2020, FDA announced that a public meeting titled “Testing Methods for Asbestos in Talc and Cosmetic Products Containing Talc” will be held on February 4, 2020. 85 Fed. Reg. 1317. In the meeting, members of FDA’s Interagency Working Group on Asbestos in Consumer Products (IWGACP) will present preliminary recommendations on testing methods, including criteria for fiber identification and counting. Interested parties should register by January 28, 2020, and written comments are due by January 17, 2020.

NANOTECHNOLOGY

NIOSH Requests Information On ENMs To Evaluate In Developing OELs: The National Institute for Occupational Safety and Health (NIOSH) published a Federal Register notice on December 17, 2019, requesting information on toxicological and physicochemical data of engineered nanomaterials (ENM) to evaluate in developing categorical occupational exposure limits (OEL). 84 Fed. Reg. 68935. According to the notice, NIOSH intends to develop categorical OELs based on the available scientific evidence regarding the hazard or safety of ENMs. NIOSH seeks to obtain information, including published and unpublished reports and research findings, to evaluate the possible adverse health risks of occupational exposure to ENMs. Information is due February 18, 2020. More information is available in our December 16, 2019, blog item.

EFSA Calls For Abstracts For Colloquium On Micro- And Nanoplastics In Food: The European Food Safety Authority (EFSA) has announced a call for abstract submissions for oral presentations, posters, and poster pitches at its colloquium on “A coordinated approach to assess the human health risks of micro- and nanoplastics in food,” which will be held in Lisbon on June 8-9, 2020. EFSA states that “[m]icroplastics are small particles of plastic less than 5mm in size; nanoplastics are even smaller, ranging from 1 to 100 nanometres (N.B. 1 nanometre equals one-millionth of a millimetre).” In 2016, EFSA identified the need to generate more data on their occurrence levels in food and on their potential effects on human health following exposure. The deadline for submissions is January 31, 2020. More information is available in our blog item.

NNI Expands Podcast Offerings: On January 3, 2020, the National Nanotechnology Initiative (NNI) announced that it is expanding its podcast offerings in 2020. The three podcast series will consist of interviews between Dr. Lisa Friedersdorf, Director of the National Nanotechnology Coordination Office (NNCO), and various experts, and will explore nanotechnology from three different perspectives:

  1. Stories from the NNI, a series that began in 2019, features conversations with experts from the NNI community who share their perspective on advances that have been made and future prospects of nanotechnology;
     
  2. Nano Matters episodes will explore specific nanotechnology topics for a broad audience; and
     
  3. Nano Entrepreneurship Network episodes will highlight best practices, resources, and advice from nanotechnology entrepreneurs and those who support them.
     

Beginning January 6, 2020, NNI is releasing a new episode every Monday.

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

House And Senate Pass EPA Fiscal Year 2020 Appropriations: On December 16, 2019, lawmakers in both houses approved Fiscal Year (FY) 2020 appropriations bills, averting a lapse in federal government spending and a shutdown of the federal government. The House and Senate passed two “mini-bus” appropriations bills. Under the bills, EPA got a boost of over $200 million in funding. In total, lawmakers voted to give EPA about $9 billion for its FY 2020 operations. This level far exceeds the budget proposed by President Trump.

Senate Bill Would Remove Fracking Exemption Under Safe Drinking Water Act: On December 17, 2019, Senator Robert Casey (D-PA) introduced a measure that would remove the exemption under the Safe Drinking Water Act (SDWA) for notifications related to fracking operations. The Fracturing Responsibility and Awareness of Chemicals Act of 2019 (FRAC Act; S. 3062) would require persons conducting hydraulic fracturing (fracking) operations to disclose to the state or EPA the chemicals intended to be used in the underground injection operation. Such notification is not now required. The bill specifically would amend Section 1421(b) of the SDWA to require the disclosure of chemicals used, thereby closing the so-called “Halliburton Exemption” under the law.

Clean Water Standards For PFAS Bill Introduced In House: On January 3, 2020, Representative Chris Pappas (D-NH) introduced the Clean Water Standards for PFAS Act of 2020 (H.R. 5539). The bill would require EPA to review and promulgate effluent standards, pretreatment standards, and water quality criteria for per- and polyfluoroalkyl substances (PFAS) under the Clean Water Act (CWA). The bill would give EPA four years to promulgate the standards.

PFAS Disposal Act Introduced In House: On January 7, 2020, Representative Andy Levin (D-MI) introduced the PFAS Safe Disposal Act (H.R. 5550). The bill would require EPA to create standards for the incineration of PFAS chemicals to prevent PFAS emissions. The bill would require EPA to promulgate emission standards under the CAA. Congressman Levin is a member of the bipartisan Congressional PFAS Task Force.

House Bill Would Limit Transportation By Rail Of Certain Crude Oil: On January 9, 2020, Congressman John Garamendi (D-CA) introduced a bill that would ban the transport by rail of crude oil with a Ried vapor pressure of more than 9.5 pounds per square inch. The bill (H.R. 5553) is intended to address safety concerns with the rail transportation of crude oil that is highly flammable. The bill was referred to the Committee on Transportation and Infrastructure.

House Passes Broad PFAS Legislation: On January 10, 2020, by a vote of 247-159, the House of Representatives passed the PFAS Action Act of 2020 (H.R. 535). Twenty-four Republicans voted for the bill; one Democrat voted against it. The bill contains a broad array of provisions related to the regulation of PFAS chemicals. As originally introduced by Representative Debbie Dingell (D-MI), the bill would have required EPA to declare PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). During the Committee deliberation process, however, lawmakers cobbled portions of 11 other pieces of legislation into the bill. The bill would:

  1. Require EPA to designate PFAS as a hazardous substance within one year;
     
  2. Require comprehensive toxicity testing under TSCA Section 4 of perfluoroalkyl and polyfluoroalkyl substances;
     
  3. Require the submission of manufacturing and processing notices for perfluoroalkyl and polyfluoroalkyl substances;
     
  4. Require EPA to promulgate national primary drinking water regulations for PFAS under the SDWA;
     
  5. Add PFAS to the Toxics Release Inventory (TRI):
     
  6. Initiate a PFAS data call under TSCA Section 8(a);
     
  7. Require EPA to promulgate a TSCA Significant New Use Rule (SNUR) for long-chain PFAS;
     
  8. Call for EPA to establish PFAS destruction and disposal guidance;
     
  9. Require EPA to list perfluoroalkyl and polyfluoroalkyl substances as HAPs under the CAA; and
     
  10. Prohibit the incineration of PFAS waste.
     

The bill has little chance of action in the Senate. The White House has issued a Statement of Administration Policy vowing to veto the legislation if, by some miracle, it did pass the Senate.

Senate Committee Passes USMCA Legislation: The Senate Environment and Public Works (EPW) Committee on January 14, 2020, passed legislation that would implement the U.S.-Canada-Mexico Agreement (USMCA), the replacement to the North American Free Trade Agreement (NAFTA). Senators passed H.R. 5430, United States-Mexico-Canada Agreement Implementation Act, by a vote of 16-4. Under the rules for the bill, no amendments could be offered, as the Senate majority has tagged the bill for fast-track consideration. The EPW Committee is one of six Senate Committees that must approve the bill before it moves to the Senate for a full vote.

House Subcommittee Holds Hearing On Bill To Phase Down HFCs: The House Energy and Commerce Subcommittee on Environment and Climate Change on January 14, 2019, held a hearing entitled “Promoting American Innovation and Jobs: Legislation to Phase Down Hydrofluorocarbons (HFCs).” The hearing focused on H.R. 5544, the American Innovation and Manufacturing Leadership Act of 2020. The bill would phase down the production and consumption of HFCs over 15 years, limiting the production and consumption of regulated HFCs to 15 percent of baseline levels beginning in 2036. The legislation would phase down HFCs with a system of tradable allowances. It would not, however, amend the CAA. Instead, it would authorize EPA to implement new rules reducing use of HFCs. The legislation also would require EPA to publish a list of HFCs that are subject to regulation under the legislation. Persons who produce, import, export, reclaim, destroy, use and entirely consume (except for trace quantities) in the manufacture of other chemicals, or use as a process agent a regulated substance would be required to report such action to EPA, including specified data relevant to establishing the baseline for the phase down of production and consumption of regulated substances. EPA must promulgate regulations to implement this requirement within 270 days of enactment. The bill would call on EPA to establish the formulas for calculating the baselines for the phase down of the production and consumption of regulated substances, based principally on production and consumption of regulated substances in 2011, 2012, and 2013. EPA is to promulgate regulations establishing an allowance allocation and trading program to phase down production and consumption of regulated substances. The bill further requires EPA to establish annually a quantity of production allowances and consumption allowances that do not exceed specified percentages of the production and consumption baselines, respectively. EPA would be required to allocate production allowances and consumption allowances annually or for multiple years at a time. Beginning on January 1 of the year following promulgation of the regulations required by this subsection, the legislation would make it unlawful for any person to engage in the production or consumption of HFCs without a corresponding allowance that authorizes such production or consumption. Essential use exceptions to the phase down would be allowed beginning in 2034, when production and consumption will be limited to 20 percent of respective baseline levels. Limited additional allowances in excess of the phase down limits may be allocated for up to five years if EPA finds that such excess allowances are exclusively for an application for which there is no substitute available and the available supply of the requisite regulated substance is insufficient. EPA can issue additional production allowances to produce, at a domestic facility, additional regulated substances solely for export and use in a foreign country. The legislation prohibits, beginning on January 1, 2033, any person from exporting a regulated substance to a foreign country not identified by EPA as having implemented a phase down of HFCs akin to this legislation. EPA also would be required to promulgate regulations within 24 months of enactment to maximize reclaiming of regulated substances, minimize releases of regulated substances from equipment, and ensure safety of technicians and consumers. Testifying before the Committee were:

  • Cynthia Newberg, Director, Stratospheric Protection Division, Office of Atmospheric Programs, EPA, Office of Air and Radiation;
     
  • Gary Bedard, President and Chief Operating Officer, Lennox International, Inc., on behalf of the Alliance for Responsible Atmospheric Policy;
     
  • David Doniger, Senior Strategic Director, Natural Resources Defense Council;
     
  • John Galyen, President, Danfoss North America, on behalf of the Air-Conditioning, Heating, and Refrigeration Institute; and
     
  • Ben Lieberman, Senior Fellow, Competitive Enterprise Institute.
     

Member statements, witness testimonies, and an archived webcast of the hearing are available online.

MISCELLANEOUS

White House Proposes Sweeping Revisions To NEPA: Stating that he is “taking another historic step in our campaign to slash job-killing regulations and improve the quality of life for all of our citizens,” President Trump on January 9, 2020, proposed sweeping revisions to the National Environmental Protection Act (NEPA). The changes would be the most significant revisions to NEPA in some 40 years. NEPA requires federal agencies to assess the environmental impacts of proposed major federal actions, including the issuance of federal permits and other approvals, as well as when providing federal funding. The goal of NEPA is to ensure well-informed decision-making. But critics argue that the process can be unnecessarily complex, burdensome, and protracted. A lengthy process can delay or even derail important projects to modernize our nation’s infrastructure, manage our federal lands and waters, and restore our environment. The Council on Environmental Quality (CEQ) has found that the average time for federal agencies to complete Environmental Impact Statements is four and half years. Further, for highway projects, it takes over seven years on average, and many projects have taken a decade or more to complete the environmental review process. The proposed rule seeks to update the environmental review process. It would establish a presumptive two-year time limit for Environmental Impact Statements; require federal agencies to request information from applicants and the public earlier in the process; increase coordination by agencies to reduce delays; avoid duplication by facilitating use of documents required by other statutes or prepared by state, tribal, or local agencies; and ensure that the regulations reflect current, modern technologies. The proposal would reform the process of gathering information on environmental effects, but would not change any substantive environmental law or regulation, such as the CAA the CWA, and the ESA. The proposal should be published in the Federal Register shortly.

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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