Monthly Update for October 2013


TSCA/FIFRA/IRIS/EPCRA

House Subcommittee Convenes Hearing On Role Of TSCA Preemption: On September 18, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy convened a hearing on the "Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act." This was the Subcommittee's third hearing on Toxic Substances Control Act (TSCA) issues, and was intended to focus "on the existing statutory provisions, regulatory implementation, and 'real world' implications of TSCA section 6 requirements related to the manufacture and processing of existing chemicals; and TSCA section 18, regarding Federal preemption of State law." The Subcommittee's background memorandum and an archived webcast of the September 18, 2013, hearing are available online. Bergeson & Campbell, P.C.'s memorandum on the Subcommittee's June 13, 2013, hearing to provide an overview of Title I of TSCA is available online. Our memorandum on the Subcommittee's July 11, 2013, hearing to examine TSCA Sections 5 and 14, which address the regulation of new chemicals, new uses of existing chemicals, and the protection of confidential business information (CBI), is available online. A more detailed memorandum on this hearing is available online.

EPA Announces IRIS Final Assessment: On September 20, 2013, the U.S. Environmental Protection Agency (EPA) announced the release of the final assessment for 1,4-dioxane under the Integrated Risk Information System (IRIS) and the availability of a new Toxicological Review. The tox review document presents background information and justification for the IRIS summary of the hazard and dose-response assessment of 1,4-dioxane. The reference concentration (RfC), which provides an estimate of the concentration of the chemical a person can inhale through their lifetime without causing harm, is 0.03 milligram per cubic meter of air, the same as the value EPA proposed in 2011. The final IRIS assessment retains a 2010 reference dose (RfD) of 0.03 milligram 1,4-dioxane per kilogram body weight per day. EPA also retained its previous classification of 1,4-dioxane as a likely human carcinogen. The IRIS assessment of 1,4-dioxane is available online. The EPA's fact sheet on 1,4-dioxane is available online.

EPA Evaluates Flame Retardants Including A Safer Substitute For HBCD: On September 24, 2013, EPA released a draft report on alternatives to a flame retardant chemical, hexabromocyclododecane (HBCD), with which EPA has identified persistent, bioaccumulative and toxic characteristics. The Design for the Environment (DfE) Alternatives Assessment draft report describes HBCD uses with an overview of life cycle and exposure information. The report identifies two chemical alternatives for use in polystyrene building insulation, in addition to a list of substances that are not currently expected to be viable. One of the alternatives, a butadiene styrene brominated copolymer, is expected to be safer than HBCD and is currently in domestic commercial production. Alternative materials are also identified in the report. In March 2013, as part of a broader effort to address flame retardant chemicals, EPA identified 20 flame retardants for risk assessment under the TSCA work plan. This includes developing full risk assessments on four of these chemicals, including HBCD. EPA will use the information from these full assessments to better understand chemicals with similar structures and characteristics. If EPA identifies potential risks, the Agency will evaluate and pursue appropriate risk reduction actions. EPA will begin development of these risk assessments later this year and anticipates making the draft risk assessments available for public comment and peer review in 2014. A copy of the draft HBCD report can be found online.

Pesticide Registration Fees Raised For FY 2014: On September 26, 2013, EPA announced that pesticide registration service fees collected by EPA will increase by 5 percent in fiscal year (FY) 2014. 78 Fed. Reg. 59347. The Pesticide Registration Improvement Extension Act of 2012 (PRIA 3), signed in September 2012, reauthorized the EPA to collect registration and annual maintenance fees from registrants of pesticide products. That law required that EPA raise the registration service fees by 5 percent, effective October 1, 2013. PRIA 3 also calls for another 5 percent increase in registration service fees October 1, 2015, the start of fiscal 2016. EPA's notice includes a list of the new pesticide registration service fees for various categories of pesticide products.

IG Issues Report On Pesticide Enforcement: On September 27, 2013, the EPA Inspector General (IG) issued a report EPA Needs to Update Its Pesticide and Chemical Enforcement Penalty Policies and Practices, urging EPA to do a better job of justifying its penalty reductions in cases in which violators of pesticide and other chemical regulations are making good-faith efforts to get into compliance. EPA IG also reported that EPA has agreed to update an Agency guidance on assessing the validity of violators' claims of inability to afford penalties or compliance costs. The EPA IG report on pesticide and other chemical enforcement practices is available online.

EPA Announces ATO TSCA Chemical Risk Assessment: On September 27, 2013, EPA announced the proposed expert panel and meeting dates for an independent, scientific peer review of the TSCA Workplan Chemical Risk Assessment for Antimony Trioxide (ATO) 78 Fed. Reg. 59679. The peer review meetings will be available by web connect and teleconference on October 16, 2013, from 10:30 a.m. - 12:30 p.m. (EDT); October 31, 2013, from 12:00 p.m. - 5:00 p.m. (EDT); and November 14, 2013, from 12:00 p.m. - 2:00 p.m. (EST). EPA will consider the peer review report, recommendations from the peer panel, and public comments when it prepares in final the TSCA Risk Assessment for ATO. If potential risks are identified in the revised risk assessment following peer review and public comment, EPA reports that it will evaluate and pursue appropriate risk reduction actions, as warranted. If an assessment indicates negligible risk, EPA will conclude its current work on assessment of those specified targeted uses of that chemical. This draft risk assessment is part of EPA's TSCA Work Plan effort, which identifies chemicals for risk assessment over the coming years. Comments on the ATO draft risk assessment are due November 7, 2013.

EPA Seeks Comment On Next Generation Risk Assessment: On September 30, 2013, EPA announced a 45-day public comment period for the draft document titled, "Next Generation Risk Assessment: Incorporation of Recent Advances in Molecular, Computational, and Systems Biology [External Review Draft]" (EPA/600/R-13/214A). 78 Fed. Reg. 59227. The Next Generation (NexGen) Risk Assessment project was initiated in 2010 as a multi-year, multi-organization effort to consider new molecular, computational, and systems biology approaches for use in risk assessments. The specific aims of the NexGen effort, described in this draft report, are to demonstrate proof of concept that the data and methods from recent advances in biology can inform risk assessment, identify which of the information resources and practices are most useful for particular purposes (value of information), develop decision considerations for use of different types of NexGen data and methods to inform different types of assessments, and identify priority research needs. EPA also announced that Eastern Research Group, Inc., an EPA contractor, will select a group of external experts to conduct an external peer review of the draft document. The document was prepared by the National Center for Environmental Assessment within EPA's Office of Research and Development (ORD) as part of the Agency's Chemical Safety for Sustainability Research Program. EPA released the draft document for the purpose of public comment and external peer review. The 45-day public comment period ends November 14, 2013.

EPA Announces IRIS Final Methanol Assessment: On September 30, 2013, EPA announced the release of the final IRIS Summary for Methanol and an accompanying Toxicological Review (Noncancer) that have been added to the IRIS website. The Interagency Science Discussion Draft of the Methanol (Noncancer) IRIS assessment was also released. A summary of the final IRIS assessment is available online.

EPA Announces Final Rule Concerning Perfluoroalkyl Sulfonates And Long-Chain Perfluoroalkyl Carboxylate Chemical Substance: EPA signed on September 30, 2013, a final rule amending a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances. The amendment adds PFAS chemical substances that have completed the TSCA new chemical review process, but have not yet commenced production or import, and designates (for all listed PFAS chemical substances) "processing" as a significant new use. The final rule also includes a final SNUR for long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances that designates manufacturing (including importing) and processing for use as part of carpets or for treating carpet (e.g., for use in the carpet aftercare market) as a significant new use, except for use of two chemical substances as a surfactant in carpet cleaning products. For the LCPFAC SNUR, EPA is also making the article exemption at 40 C.F.R. Section 721.45(f) inapplicable to persons who import LCPFAC chemical substances as part of carpets. Persons subject to these SNURs will be required to notify EPA at least 90 days before commencing any significant new use. The required notifications will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. The final rule will be effective 60 days after publication in the Federal Register. The signed, pre-publication version of the rule is available online and EPA's press release is available online. A more detailed memorandum is available online.

RCRA

EPA Issues Guidance And Checklist On RCRA Regulatory Status Of Commercial Chemical Products: EPA has issued guidance regarding the Resource Conservation and Recovery Act (RCRA) regulatory status of commercial chemical products (CCP). The guidance is available online. EPA issued this guidance to respond to questions raised by inspectors and state agencies as to whether a material is a product that is being stored before use, or a waste that is being stored in lieu of proper treatment and disposal. The new guidance does two things:

  • It reiterates that a CCP is not solid waste if it is being appropriately stored or managed for use, legitimately recycled, or appropriately stored or managed for legitimate reclamation. EPA notes that CCPs are not solid waste when accumulated before legitimate recycling (i.e., that the speculative accumulation provision does not apply). Conversely, the guidance states that a CCP is a solid and possibly hazardous waste if it is abandoned by being accumulated or stored in lieu of being disposed, burned, or incinerated.
     
  • It provides a checklist designed to assist regulators and the regulated community in applying this regulatory structure to specific situations. The checklist prompts the user to obtain information that can be used to determine the regulatory status of CCPs based on observations made during an inspection. The checklist is divided into three sections. The first section focuses on whether the CCP is being managed as a valuable commodity, while the second addresses whether the CCP is being used in the production of products or in support of production operations, and the third section focuses on whether the CCP is a product and if there is a market or potential market for it.
GREEN CHEMISTRY

DTSC Safer Consumer Products Regulations Are In Effect: The California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations) took effect on October 1, 2013. Memoranda providing background information on the Regulations are available online. The Regulations and Final Statement of Reasons are available online.

NANOTECHNOLOGY

EC Submits Proposed Nano Food Labeling Regulation To WTO: On September 11, 2013, the European Commission (EC) submitted to the World Trade Organization (WTO) a proposed regulation amending Regulation 1169/2011 concerning the provision of food information to consumers as regards the definition of engineered nanomaterials (ENM). The proposed regulation states that since the regulation refers to ENMs and not nanomaterials in general, natural and incidental nanomaterials should not be included in the definition. The proposed regulation states further that "it is appropriate to link the definition of 'engineered nanomaterials' to intentionally manufactured material, which should be explicitly defined."

The proposed regulation includes the following statements:

  1. Certain food additives included in the Union lists as established by Commission Regulations (EU) No 1129/2011 and (EU) No 1130/2011 could be in the form of 'engineered nanomaterial' in the final food. However, indicating such food additives in the list of ingredients preceded by the word 'nano' may confuse the consumers as it may suggest that those additives are new while in reality they have been used in foods in that form for decades.
     
  2. Taking into account the potential risk of confusing consumers, food additives included in the Union lists by Regulations (EU) no 1129/2011 and (EU) No 1130/2011 should not be mandatorily qualified as 'nano' in the list of ingredients and should therefore not be covered by the definition of engineered nanomaterials. The need for specific nano-related labelling requirements relating to those additives should be addressed in the context of the re-evaluation programme, by amending, if necessary, the conditions of use in Annex II to Regulation (EC) No 1333/2008 and the specifications of those food additives, set out in Commission Regulation (EU) No 231/201215. That exception should not apply to food additives inserted in those lists at a later date, including new entries pursuant to Article 12 of Regulation (EC) No 1333/2008.
     
  3. The number based size distribution threshold of 50% should be replaced by a threshold between 1% and 50% in the future in light of technological developments concerning detection and quantification methods and where warranted by concerns for health and safety.

The proposed regulation submitted to the WTO is available online.

OECD Approves Recommendation On Managing Risks Associated With Manufactured Nanomaterials: On September 20, 2013, the Organization for Economic Cooperation and Development (OECD) announced a recommendation that its Member Countries apply existing regulatory frameworks to manage risks associated with manufactured nanomaterials. The Recommendation, approved on September 19, 2013, expands the scope of the Mutual Acceptance of Data (MAD) in the Assessment of Chemicals to include nanomaterials. Since 2006, OECD has been working to develop approaches for addressing risk assessments for manufactured materials. A review of the Recommendation will occur in three years to assess how it has been implemented in OECD Member Countries.

EPA Releases Final Comprehensive Environmental Assessment Applied To MWCNTs In Flame-Retardant Coatings In Upholstery Textiles: EPA posted on September 30, 2013, a final report entitled Comprehensive Environmental Assessment Applied to Multiwalled Carbon Nanotube Flame-Retardant Coatings in Upholstery Textiles: A Case Study Presenting Priority Research Gaps for Future Risk Assessments. The final report presents a case study of multiwalled carbon nanotubes (MWCNT) used in flame-retardant coatings applied to upholstery textiles. EPA states that the case study is organized around the comprehensive environmental assessment (CEA) framework, which structures available information pertaining to the product life cycle, environmental transport and fate, exposure-dose in receptors (i.e., humans, ecological populations, and the environment), and potential impacts in these receptors. EPA notes that the final report "is not a health, risk, or exposure assessment and as such does not draw conclusions about potential risks, or present an exhaustive review of the literature." Instead, according to EPA, it presents the research priorities identified by experts to aid research planning. EPA states that the outcomes of these research efforts may subsequently inform long-term MWCNT assessments. The final report is available online.

A&WMA Forms Intercommittee Task Force On Nanoscale Science And Engineering: The Air & Waste Management Association (A&WMA) recently announced the formation of an Intercommittee Task Force (ITF) on Nanoscale Science and Engineering. The ITF will span a wide array of subjects, including environmental policy, measurement, health effects, monitoring, management, and safety issues associated with the development and use of nanomaterials, nanotechnologies, and nanoscale products. Its objectives will likely be:

  • To bring societal recognition, understanding, and emphasis to address rapidly developing environmental health and safety issues associated with the development and use of nanomaterials;
     
  • To provide coordination and focus among A&WMA's Technical Coordinating Committees (TCC) to address specific issues posed by the development and use of nanomaterials; and
     
  • To provide leadership, a forum, and opportunity to members, regulatory agencies, industry, and the public to assess scientific, technical, and policy issues relevant to the development and use of nanomaterials.

Full participation in the ITF is typically available only to A&WMA members. The ITF is aware that members of other organizations may wish to participate, or that potential participants may be unsure whether they wish to join A&WMA at this time. Therefore, the ITF is open to non-A&WMA members. More information is available online.

PQRI Will Hold Workshop On Nanomaterial Drug Products: The Product Quality Research Institute (PQRI) will hold a January 14-15, 2014, workshop on "Nanomaterial Drug Products: Current Experience and Management of Potential Risks." The goals and objectives of the workshop, which is co-sponsored by the United States Pharmacopeia (USP) and American Association of Pharmaceutical Scientists (AAPS) and endorsed by the Society of Toxicology (SOT) are to:

  1. Review analytical science and methods for characterizing nanomaterials;
     
  2. Share experiences and results using multiple formulation platforms for the same active pharmaceutical ingredient (API);
     
  3. Discuss approaches to the management of potential risks of nanomaterials in drug products starting from early drug development and throughout the product lifecycle;
     
  4. Gather input regarding the considerations for utilizing nanotechnology in pharmaceutical products;
     
  5. Present experience and perspectives from international regulatory agencies and standards setting organizations on the use of nanotechnology in pharmaceutical products; and
     
  6. Discuss areas where additional research on the effects of nanosize APIs on absorption, distribution, metabolism, elimination, and toxicity may be needed.

The expected outcomes are to establish opportunities for collaboration between academia, industry, and government-sponsored research programs and develop a summary report of the workshop discussions and recommendations. More information regarding the workshop is available online.

NTP

NTP Announces Nominations To The Report On Carcinogens: The National Toxicology Program (NTP) Office of the Report on Carcinogens (RoC) announced on September 20, 2013, that it is seeking information on 20 substances, mixtures, and exposure circumstances nominated for possible review for future editions of the RoC. 78 Fed. Reg. 57868. The 20 substances are: aloe vera whole leaf extract (Aloebarbadensis Miller); 2-butoxyethanol (CAS No. 111–76–2); chlorothalonil (2,4,5,6-tetrachloroisophthalonitrile) (CAS No. 1897–45–6); coconut diethanolamide (CAS No. 68603–42–9); cobalt (metal) (CAS No. 7440–48–4); decalin (CAS No. 91–17–8); ginkgo biloba extract; goldenseal root powder (Hydrastis canadensis); kava kava extract; 2-methylimidazole (CAS No. 693–98–1); 4-methylimidazole (CAS No. 822–36–6); methyl isobutyl ketone (CAS No. 108–10–1); nickel nanoparticles; nitro polycyclic aromatic hydrocarbons (PAH) as a class; perfluorooctanoic acids (PFOA) (CAS No. 335–67–1); polyacrylates; pulegone (CAS No. 89–82–7); tetralin (CAS No. 119–64–2); tris-(1,3-dichloro-2-propyl) phosphate (chlorinated Tris, TDCPP) (CAS No. 13674–87–8); and wood smoke. Nominations to the RoC may seek to list a new substance in the report, reclassify the listing status of a substance already listed, or remove a listed substance. The deadline for receipt of information is October 18, 2013.

BIOBASED/RENEWABLE PRODUCTS

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

LEGISLATIVE DEVELOPMENTS

House Energy And Commerce Committee Ranking Member Questions American Chemistry Council's Abandonment Of Its 2009 Principles On TSCA: On October 7, 2013, House Energy and Commerce Committee ranking member Henry Waxman (D-CA) sent a letter to American Chemistry Council (ACC) President and CEO Cal Dooley questioning whether ACC has abandoned its 2009 principles for reform of TSCA. Representative Waxman's office stated that the 2009 principles indicated that ACC understood the serious shortcomings in the law and "suggested a willingness to making constructive changes to the law." Recent statements by ACC suggest, however, that the Council is no longer committed to those principles, Representative Waxman's office stated. In the letter Representative Waxman writes: "It would be disappointing and a blow to the chances for successful TSCA reform if the ACC has abandoned its 2009 principles... Congress needs progressive thinking from the ACC to help find consensus. Other stakeholders remain committed to their principles and to the pursuit of effective legislation, and the ACC should too." The letter is available online.

House Resolution Urges EPA To Hold More "Listening Sessions" On Carbon Dioxide Rules: Representative Shelley Moore Capito (R-WV) on October 8, 2013, introduced a resolution urging EPA to hold "listening sessions" in states that will be affected by the upcoming carbon dioxide regulations for existing power plants. The resolution (H. Con. Res. 59) states EPA has not scheduled any of its 11 public listening sessions for the regulation in the top three coal producing states or the ten states with the highest percentage of electricity generated from coal. The resolution calls on EPA to hold listening sessions in each of the 15 states with the highest percentage of electricity generated by coal in 2012: Colorado, Indiana, Iowa, Kansas, Kentucky, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Utah, West Virginia, Wisconsin, and Wyoming.

Over 400 Democrats Urge President To Reconsider EPA Rule Establishing Carbon Dioxide Emissions Limits For Coal-Fired Power Plants: In a letter to President Obama, more than 400 current and former elected Democratic officials expressed concerns about EPA's rule establishing limits on carbon dioxide emissions from existing coal-fired power plants. Signed by "410 elected representatives of the American people and leaders within the Democratic Party from 16 states" and organized by the Democratic non-profit group CoalBlue, the letter asks the President to negotiate with them on a new rule. The letter also called on the President to invest in technologies such as carbon capture and sequestration. Moving forward with the carbon dioxide standards as proposed would be environmentally unproductive and "needlessly costly and painful," according to the letter, which is available online.

House Transportation Committee Passes Water Infrastructure Bill: On September 19, 2013, the House Transportation and Infrastructure Committee unanimously approved its version of a water infrastructure bill. The panel's markup of the Water Resources Reform and Development Act (WRRDA) now places the bill (H.R. 3080) before the full House for approval. The WRRDA bill does not contain specific funding for water projects. The bill merely authorizes Committees with jurisdiction over port and water infrastructure to include funding in their budgets. Congress has not enacted WRRDA since 2007. The Senate passed its version of the bill in May.

House Subcommittee Holds Hearing On Obama Climate Change Plan: On September 18, 2013, the House Energy and Commerce Subcommittee on Energy and Power held a hearing on President Obama's Climate Change Plan. Opening statements by Subcommittee members and witness testimony is available online. At the hearing, EPA Administrator Gina McCarthy and Energy Secretary Ernest Moniz defended the Obama Administration's national climate change plan against criticism from House Republicans and said coal will remain an important national energy source for decades. Republicans on the Subcommittee expressed concern that President Barack Obama's plan for addressing climate change would cripple regional economies and prohibit the construction of new coal-fired power plants. Subcommittee Chair Ed Whitfield (R-KY) stated in his opening statement that he feared the Obama Administration's actions on climate change is "almost certain to further the economic uncertainty facing our nation's utilities and have devastating effects" on consumers. The issue of carbon capture and sequestration (CCS) was also a main topic of discussion during the hearing, and Subcommittee Republicans argued that CCS technologies are neither commercially available nor cost effective. Both Moniz and McCarthy pushed back on this argument, claiming that CCS technologies are available, effective, and reasonable.

Water Infrastructure Resiliency And Sustainability Act Introduced By Democratic Senators: On September 18, 2013, three Democratic Senators introduced legislation that would create a grant program to help wastewater, drinking water, and stormwater utilities prepare for climate change-related impacts. The Water Infrastructure Resiliency and Sustainability Act of 2013 (S. 1508) was introduced by Senators Benjamin Cardin (D-MD), Barbara Boxer (D-CA), and Majority Leader Harry Reid (D-NV) and is intended to help local communities obtain matching federal grants that would cover up to 50 percent of the cost of a project. The grants, which would be administered by EPA, would go to utilities that are most at risk from extreme weather conditions, such as droughts and floods, brought on by climate change.

Senate Bill Seeks To Block EPA Carbon Regulations: Legislation introduced on September 17, 2013, by Senate Minority Leader Mitch McConnell (R-KY) would block new EPA regulations regulating carbon pollution from new and existing power plants by requiring the rules to be approved by Congress. The Saving Coal Jobs Act (S. 1514) would prohibit the promulgation of any regulation relating to power sector carbon pollution standards or any substantially similar regulation on or after June 25, 2013, unless that regulation is explicitly authorized by an Act of Congress. The legislation also would streamline coal mine permitting under the Clean Water Act (CWA) by giving permitting authorities 270 days to approve an application. After 270 days, the permit application would be treated as if it were approved.

House Passes Bill To Streamline Approvals Of Mining Projects: On September 17, 2013, the House of Representatives passed by a 245-178 vote the National Strategic and Critical Minerals Production Act of 2013 (H.R. 761). The bill would limit the reviews of mining projects for critical and strategic minerals by federal agencies to no more than 30 months. The bill now moves to the Senate.

Small Business Committee Passes Regulatory Flexibility Improvements Act: On September 18, 2013, the House Small Business Committee approved by voice vote an amended version of the Regulatory Flexibility Improvements Act (H.R. 2542). The bill would require agencies to consider less burdensome alternatives to costly regulations and also would require agencies to consider both the direct and indirect effects of regulations on small businesses. The bill, similar to a version that passed the House in 2011, would require all federal agencies to analyze the impact of proposed regulations on small businesses. Agencies would have to consider less burdensome alternatives if the rules had an economic impact of $100 million or more annually.

Republicans Introduce Bills To Curb Emergency Powers Of NRC Chair: The powers of the Chair of the Nuclear Regulatory Commission (NRC) would be blunted under legislation introduced on September 18, 2013, by House and Senate Republicans. Senator David Vitter (R-LA) and Representative Lee Terry (R-NE) introduced a bill (S. 1519, H.R. 3132) that would essentially devolve the NRC Chair's powers to all five NRC Commissioners. The Nuclear Regulatory Commission Reorganization Plan Codification and Complements Act also seeks to clarify the roles of the Chair and the other four Commission members regarding rulemaking, internal and external communications, and declaring the need to invoke emergency powers. The bill is a response from Republicans to the actions of former NRC Chair Gregory Jaczko, who assumed emergency powers during Japan's Fukushima nuclear disaster in 2011.

Bipartisan Senate Bill Would Amend TSCA To Exempt Certain Sporting Goods From Regulation: Senators Amy Klobuchar (D-MN) and John Thune (R-SD) on September 17, 2013, introduced legislation to prevent ammunition and fishing tackle from unnecessary EPA regulation. The Hunting, Fishing, and Recreational Shooting Protection Act excludes ammunition and fishing tackle from TSCA regulation, leaving regulation up to state fish and game agencies and the Fish and Wildlife Service, who currently regulate ammo and tackle. The legislation is supported by The National Rifle Association, Safari Club, Congressional Sportsmen's Foundation, Wildlife Forever, and other hunting and fishing groups.

The Ensure Reliable And Affordable American Energy Act: On September 19, 2013, Representative Shelley Moore Capito (R-WV) introduced the Ensure Reliable and Affordable American Energy Act (H.R. 3140). Representative Capito issued the bill in response to EPA's recently announced New Source Performance Standard (NSPS) imposing limits on carbon dioxide emissions from new coal-fired utilities. "EPA's action strikes at the core of West Virginia and is yet another sign that this Administration simply doesn't care about the hard working men and women who earn their living in the coal industry, doesn't care about providing reliable and affordable energy to power the national economy for years to come, and doesn't care about harming the very fabric of communities across our state," Representative Capito stated in a statement accompanying the bill's introduction. The bill would delay the implementation of the new EPA regulations until other countries comprising at least 80 percent of non-U.S. global carbon dioxide emissions enact regulations that are at least as stringent as EPA's new standards. This concept is not new. In 1997, the United States Senate unanimously (95-0) adopted a resolution (S. Res. 98; 105th Congress) resolving that the United States should not ratify the Kyoto Protocol unless similar emissions standards were placed on developing countries.

Senate Bill Would Create National Network To Track Mercury In The Environment: Senators Susan Collins (R-ME) and Tom Carper (D-DE) on September 19, 2013, introduced bipartisan legislation that would create a comprehensive new program to measure mercury levels across the United States. The Comprehensive National Mercury Monitoring Act (S. 1528) would build on existing environmental monitoring efforts to create a comprehensive nationwide mercury monitoring network to provide sound mercury measurements. The bill would establish mercury monitoring sites across the nation to measure mercury levels in air, water, and living organisms.

Obama Intends To Nominate Apple Official To State Department Energy Post: President Obama on September 25, 2013, announced his intent to nominate Catherine Ann Novelli, Vice President of Worldwide Government Affairs for Apple Inc., to serve as Undersecretary for Economic Growth, Energy, and the Environment at the State Department. Novelli is not new to international energy and environmental issues: she has served at the Office of the U.S. Trade Representative and in the Commerce Department's general counsel office. Her new role at the State Department will be "to develop and implement economic growth, energy, agricultural, oceans, environmental, and science and technology policies to promote economic prosperity and address global challenges in a transparent, rules-based, and sustainable system."

Senate Subcommittee Holds Hearing On Efforts To Reduce Emissions Of Black Carbon: The Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety on September 24, 2013, held a hearing on efforts to reduce emissions of "black carbon." The hearing was generally intended to support efforts to refund the Diesel Emissions Reduction Act (DERA), funding for which has been cut over the past several years. Witnesses and Subcommittee members generally touted the success of DERA programs to cut emissions of black carbon. The pollutant is formed from incomplete combustion of diesel fuel and from other sources and is considered dangerous to human health and the environment. Subcommittee member statements and witness testimony are available online.

Senate Bill Would Require Offsets For EPA Global Warming Regulations: Senator Jeff Flake (R-AZ), along with Senators John McCain (R-AZ), Deb Fischer (R-NE), and Dean Heller (R-NV), on September 23, 2013, introduced the PAYGO Act of 2013 (S. 1536). This measure would require EPA to offset the federal cost of any greenhouse gas (GHG) rules through equivalent reductions in EPA spending. If EPA fails to offset those costs, it must obtain Congressional approval before finalizing the rule. "EPA's forthcoming greenhouse gas rule is an unfortunate continuation of its regulation-at-all-cost strategy that seems to strike hardest at those who are least able to afford it," stated Flake. "The legislation I've introduced will provide some much needed restraint by forcing the EPA to be accountable for their regulatory actions."

PROPOSITION 65

California Reconsidering Proposition 65 Listings For 16 Chemicals Based On HazCom Revision: On September 20, 2013, California's Office of Environmental Health Hazard Assessment (OEHHA) reported that it is considering whether to keep 16 chemicals on its list of substances that carry special labeling requirements due to reproductive toxicity. The announcement responds to the federal Occupational Safety and Health Administration's (OSHA) 2012 amendments to its hazard communication standard. The revised standard dropped findings of reproductive toxicity for those chemicals, which had served as the basis for including them on California's list. OEHHA has asked an advisory board that identifies reproductive toxicants to decide whether available science justifies keeping the chemicals registered. Many chemicals are on the Proposition 65 list because an authoritative body has determined that they cause cancer or reproductive harm. In the case of the chemicals up for reconsideration, they were listed because OSHA's previous hazard communication standard incorporated threshold limit values set by the American Conference of Governmental Industrial Hygienists. The new hazard communication standard does not incorporate those values. The Committee will consider nine of the 16 chemicals at a November 21, 2013, public hearing. The nine chemicals up for review are:

  • tert-amyl methyl ether, used as an oxygenate for gasoline;
     
  • 2-chloropropionic acid, used in the manufacture of pharmaceuticals and pesticides;
     
  • N,N-dimethyl-acetamide, used as a solvent, a chemical intermediate, a carrier ingredient in pharmaceuticals and in the production of synthetic polymers used in clothing and textiles;
     
  • 2-ethylhexanoic acid, used as a chemical intermediate, in the manufacture of resin, and as a catalyst for polyurethane foaming, solvent extraction, and dye granulation;
     
  • ethyl-tert-butyl ether, used as an oxygenate for gasoline;
     
  • p,p'-oxybis (benzene sulfonyl hydrazide), used as a blowing agent for sponge rubber and expanded plastics;
     
  • 1,3,5-triglycidyl-s-triazinetrione, used as a curing agent in powder coatings;
     
  • 4-vinyl-cyclohexene, used as a solvent and in the production of flame retardants, polyolefins and vinylcyclohexene dioxide; and
     
  • 4-vinyl-1-cyclohexene dioxide, used to dilute other diepoxides and for epoxy resins derived from bisphenol A and epichlorohydrin.

The Committee will consider the remaining seven chemicals at a public meeting in early 2014. Those seven chemicals are n-butyl glycidyl ether, chloroform, diglycidyl ether, methyl n-butyl ketone, methyl isopropyl ketone, alpha-methyl styrene, and phenyl glycidyl ether. OEHHA is accepting public comment on changing the bases for those chemicals until October 21, 2013.

Governor Signs Legislation Intended To Ease Compliance For Certain Small Businesses: On October 5, 2013, Governor Jerry Brown (D) signed legislation (A.B. 227) intended to ease compliance with Proposition 65 for certain small businesses, including restaurants, cafes, and parking garages. Proposition 65 requires businesses to post warnings if they expose customers to listed chemicals. Citizens can file private enforcement actions against businesses for violations if public prosecutors fail to enforce the law. A.B. 227 would require a person filing an enforcement action for certain specified exposures to provide notice in a specified proof of compliance form. The bill would prohibit an enforcement action from being filed, and would prohibit the recovery of certain payments, if the notice alleges a failure to provide a clear and reasonable warning for certain exposures and, within 14 days after receiving the notice, the violator corrects the alleged violation, pays a $500 civil penalty, and provides notice that the violation has been corrected. Covered exposures include:

  • An exposure to alcoholic beverages that are consumed on the alleged violator's premises to the extent onsite consumption is permitted by law;
     
  • An exposure to a listed chemical in a food or beverage prepared and sold on the alleged violator's premises primarily intended for immediate consumption on or off premises, to the extent of both of the following: the chemical was not intentionally added; and the chemical was formed by cooking or similar preparation of food or beverage components necessary to render the food or beverage palatable or to avoid microbiological contamination;
     
  • An exposure to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises; and
     
  • An exposure to listed chemicals in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.
     
MISCELLANEOUS

PETA Forms Consortium Offering Technical Support On Animal Replacement: The People for the Ethical Treatment of Animals (PETA) launched on September 30, 2013, a nonprofit group to provide technical support to manufacturers, regulators, and researchers seeking to reduce and eliminate the use of animals in safety, dermal corrosion, shellfish toxin, and other tests. The group, PETA International Science Consortium Ltd., will fund the development of non-animal testing and work with chemical and other manufacturers, private research facilities, and regulatory agencies to encourage the use of non-animal research methods globally, according to the consortium's website, which is available online.
 

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.

 
BERGESON & CAMPBELL, P.C.
2200 Pennsylvania Avenue, NW, Suite 100W
Washington, D.C. 20037
202-557-3800 • 202-557-3836 (fax) | lawbc.com
Contact • Twitter
 
Privacy Policy | Terms of Use | Cookie Policy | Attorney Advertising | Trademarks
©2020 Bergeson & Campbell, P.C.
All Rights Reserved.