TSCA Reform Act Passed, Sent to the President for Signature
By Allison Torrence
Late on June 7, 2016, the Senate voted in favor of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (HR 2576) (a/k/a the TSCA Reform Act). The TSCA Reform Act regulates the manufacture, transportation, sale and use of thousands of chemicals, and provides a much needed update to the 40 year old Toxic Substances Control Act (TSCA). The TSCA Reform Act had been passed by the House in May, with overwhelming support. It was held up recently in the Senate by an objection from Senator Rand Paul (R-Ky.), who argued that he needed more time to review the complex new law. But, Senator Paul dropped his objection on June 7th, and a vote was quickly held.
The TSCA Reform Act is widely seen as an improvement over the outdated TSCA. The American Chemical Counsel praised the TSCA Reform Act as “truly historic”. Others, however, were disappointed that the TSCA Reform Act preempted state laws on chemical safety, instead of setting a floor and letting state’s set more stringent standards.
President Obama is expected to sign the TSCA Reform Act into law very soon, as the White House had endorsed the Act after it passed the House of Representatives in May.
Is A TSCA Reform Bill Finally Going To Happen?
By Allison Torrence
Attempts to reform the outdated Toxic Substances Control Act (“TSCA”) have been working their way through Congress for years with no success. But as of this week, legislators in Washington have announced that they are closer than ever before to finalizing and approving a TSCA reform bill.
Last year, the House and Senate each passed their own versions of a TSCA reform bill. The two versions contained significant differences, including on how they managed preemption of State chemical laws. Then, on May 17, 2016, House and Senate leaders issued the following statement on the current status of TSCA reform:
House and Senate negotiators are finalizing a TSCA reform bill that represents an improvement over both the House and Senate bills in key respects. Current federal law only provides very limited protection. We are hopeful that Congress will be taking action soon on reforming this important environmental law.
While some House Democrats, including Rep. Frank Pallone Jr. (D-NJ), Ranking Member of the House Committee on Energy and Commerce, believe the TSCA reform bill does not do enough, many high-profile Democrats and Republicans have signed on to the compromise bill, including U.S. Senate Environment and Public Works Committee Ranking Member Barbara Boxer (D-CA), Senator Cory Booker (D-NJ), House Energy and Commerce Committee Chairman Fred Upton (R-MI), and U.S. Senate Environment and Public Works Committee Chairman Jim Inhofe (R-OK).
The Congressional leaders are confident that the compromise bill will be up for a vote next week and could potentially be sent to the President for signing before Memorial Day. Be sure to follow the Corporate Environmental Lawyer Blog for analysis of any developments with the TSCA reform bill.
EPA Limits TCE Use in Consumer Goods
By E. Lynn Grayson
EPA recently took action under the Toxic Substances and Control Act (TSCA) to ensure no TCE containing consumer products enter the marketplace before the Agency has the opportunity to evaluate the intended use and take appropriate action. The new rule issued April 6, 2016, known as a Significant New Use Rule (SNUR), requires any company intending to make certain TCE containing consumer products provide EPA 90-day notice before making the product.
The final rule applies to TCE manufactured (including import) or processed for use in any consumer product, except for use in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. A consumer product is defined at 40 CFR 721.3 as “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”
EPA’s June 2014 Work Plan Chemical Risk Assessment for TCE identified health risks associated with several TCE uses, including the arts and craft spray fixative use, aerosol and vapor degreasing, and as a spotting agent in dry cleaning facilities. In 2015, EPA worked with the only U.S. manufacturer of the TCE spray fixative product, PLZ Aeroscience Corporation of Addison, Illinois, resulting in an agreement to stop production of the TCE containing product and to reformulate the product with an alternate chemical.
It is important to note that this regulatory action may affect certain entities with pre-existing import certifications and export notifications required under TSCA.
The rule becomes effective 60 days from its publication in the Federal Register.
Update: Hazardous Waste Electronic Manifest System
By E. Lynn Grayson
As required by the Hazardous Waste Electronic Establishment Act (Act), EPA’s efforts are ongoing to develop an e-manifest system. EPA issued its final rule in February 2014 (79 Fed. Reg. 7518, February 7, 2014) seeking to implement the Act’s requirement to create a national electronic manifest system and impose user fees as a means to fund its development and operation. Most recently, EPA has developed an e-manifest listserv to manage communications with the regulated community.
According to EPA, the listserv will: 1) provide stakeholders with program announcements and updates; and 2) facilitate e-manifest conversations among users and other stakeholders. There will be significant progress on the e-manifest program throughout 2016-2017, so participation in the listserv will be a good way to stay informed.
Interested parties may subscribe to EPA’s listserv at https://www3.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
EPA conducted a webinar on developments with the e-manifest system in December 2015, and the presentation provides a good overview of the program and related schedule.
Along with the hazardous waste management changes for generators recently proposed by EPA, the e-manifest system will be another significant new development for thousands of companies regulated by RCRA and subject to hazardous waste manifest requirements.
New 2017-2019 EPA National Enforcement Initiatives
By E. Lynn Grayson
EPA recently announced seven National Enforcement Initiatives (NEIs) for FY 2017-2019. Every three years, EPA identifies NEIs to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference. According to EPA, the NEIs are selected with input from the public and other stakeholders across EPA’s state, local and tribal partners.
Starting October 1, 2016 and continuing for three fiscal years, the following are the NEIs:
Reducing air pollution from the largest sources
Cutting hazardous air pollutants*
Ensuring energy extraction activities comply with environmental laws
Reducing risks of accidental releases at industrial and chemical facilities*
Keeping raw sewage and contaminated stormwater out of our nation’s waters
Preventing animal waste from contaminating surface and groundwater
Keeping industrial pollutants out of the nation’s waters*
*New for FY2017-2019 as of February 2016.
It is interesting to note that the newly identified NEIs appear to correspond to challenges that EPA recently confronted, including the Gold King Mine wastewater spill, the spill prevention litigation and settlement in New York, and the Flint, MI lead contaminated water matter, where recent government reports concluded EPA failed in its regulatory obligations to this community.
For more information, see EPA’s news release announcing these NEIs.
Court Orders New EPA Spill Prevention Rules
By E. Lynn Grayson
EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
By Allison A. Torrence
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
Issues relating to the Corps’ jurisdiction under the Clean Water Act;
Fallout under the Safe Drinking Water Act after Flint;
U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
Status of TSCA reform efforts;
Litigation relating to GMOs under FIFRA;
RCRA waste regulation amendments;
OSHA penalty updates;
U.S. EPA challenges;
Water scarcity and sustainability; and
Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
Steven Siros Presenting at a Webinar on Chemical Fingerprinting
By Allison A. Torrence
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
Are Stricter U.S. EPA Pesticide Registration Reviews on the Table for 2016?
By Steven M. Siros
In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees. Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations. In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban. In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed. U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions. In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016.
These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA). Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.
U.S. EPA Releases 2015 Enforcement Statistics
By Steven M. Siros
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology
By Allison A. Torrence
Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.
The full article is available here.
EH&S Partners E. Lynn Grayson and Steven M. Siros Publish Article on Nanotechnology
By Genevieve J. Essig
Partners E. Lynn Grayson and Steven M. Siros have published a new article titled “Nanotechnology: U.S. Regulatory Framework and Legal Risk Management” in the Westlaw Journal of Toxic Torts addressing some of the legal and technical challenges associated with nanotechnology. While nanotechnology offers the opportunity for tremendous scientific advances in industrial, commercial, and consumer products, and has been referred to by some as the second coming of the Industrial Revolution, there has been growing concern and associated regulatory scrutiny with respect to how nanotechnology interacts with human health and the environment. The article provides an overview of how nanotechnology is defined, key regulatory initiatives, public and private partnerships assessing potential concerns, and risk management considerations.
Corporate Environmental Lawyer celebrates five years of blogging with a new design!
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
Mobile and tablet responsive technology
A trending-categories cloud list
Easy-to-use social sharing buttons
Streamlined navigation menus
Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
EPA Revises Its Regulatory Agenda, A Flurry of Activity Expected in the Next Few Months
By Alexander J. Bandza
Last week, the EPA-specific listing on the website of the Office of Information and Regulatory Affairs was updated with timelines on the EPA’s regulatory efforts. Of potential interest, in chronological order of expected release, are the following rules:
EPA Lacks Authority to Regulate Plastic Microbeads in Water
By E. Lynn Grayson
Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.
According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.