Federal Development Update for April 2015


TSCA/FIFRA/IRIS/NTP/TRI

EAB Reverses Epic Penalty In Elementis Case, But Affirms EPA's "Continuing" TSCA Section 8(e) Interpretation: On March 13, 2015, the U.S. Environmental Protection Agency (EPA) Environmental Appeals Board (EAB) reversed the November 2013 Administrative Law Judge (ALJ) ruling that Elementis must pay a $2.5 million penalty for failing to submit a Toxic Substances Control Act (TSCA) Section 8(e) notice on a 2002 study showing hexavalent chromium causes lung cancer. In re: Elementis Chromium, Inc., Docket No. TSCA-HQ-2010-5022. The EAB ruled that the report was not required to be submitted under TSCA Section 8(e) because the fact that hexavalent chrome causes lung cancer "has been well-established for decades." The EAB also determined, however, that some violations of TSCA Section 8(e) are not subject to the TSCA five-year statute of limitations. According to the EAB, the statute of "limitations for a section 8(e) violation runs anew each day the obligation to provide reportable information remains unfulfilled." The decision contains a useful discussion on the complexities of epidemiology studies and their relevance to TSCA Section 8(e) and the corroborative evidence exemption. The decision is available online.

EPA Issues Response To ICTA Petition Regarding Nanosilver: On March 19, 2015, EPA responded to a petition submitted almost seven years ago by the International Center for Technology Assessment (ICTA) requesting EPA regulate products containing nanosilver as pesticides and for related other forms of relief. On March 19, 2015, EPA responded to the petition. See online. In general, the response does not alter EPA's legal position with regard to nanosilver and its regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), or otherwise contribute any new interpretations of existing EPA pesticide registration or enforcement policy. Briefly, the key decisions articulated in EPA's response to the petition are:

  • EPA will treat products containing nanosilver as pesticides under FIFRA if intended for pesticidal purposes, even in the absence of explicit pesticidal claims.
     
  • EPA rejected ICTA's claim that all products containing nanosilver are categorically pesticides and should be regulated as such.
     
  • EPA will continue to apply its statutory and regulatory criteria as to what is a pesticide on a case-by-case basis. The determination "would be fact specific, typically based upon information on the use patterns intended, the claims or other advertising used to distribute or sell the ingredient or product, and any other information or knowledge made known to or known by the distributor or seller."
     
  • Importantly, EPA disagrees with ICTA's claim that the treated article exemption should not apply to any nanosilver pesticide product because nanosilver specifically is not the registered pesticide active ingredient. According to EPA, application of the treated article exemption is available if a registered pesticide product is used, consistent with any terms and conditions of use of the registered product.
     
  • EPA granted ICTA's request to review the health and safety impacts from use of a nanosilver ingredient in a pesticide product based on nanosilver data for the portion released as nanosilver and based on macro-scaled silver for the portion released as silver ions, and agrees that FIFRA Section 3(c)(7)(C) is the appropriate authority for review of applications for registration of products containing nanosilver ingredients.
     
  • EPA rejected ICTA's claim that EPA must comply with the National Environmental Policy Act (NEPA) to assess the environmental impacts of EPA's decision regarding nanopesticides, citing EPA's well-settled view that it is exempt from NEPA requirements under FIFRA under Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986).
     
  • EPA denied ICTA's request to use a particular enforcement strategy to address unregistered pesticides sold or distributed in the U.S., believing that EPA lacks a factual basis to conclude that all nanosilver products are pesticides and thus does not have the legal basis upon which to conclude that all products are illegally sold or distributed.

EPA Extends Comment Period For Proposed SNUR On Long-Chain Perfluoroalkyl Carboxylate And Perfluoroalkyl Sulfonate Chemical Substances: On March 16, 2015, EPA extended the comment period on its proposed rule dated January 21, 2015, concerning long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances and perfluoroalkyl sulfonate (PFAS) chemical substances. 80 Fed. Reg. 13513. EPA has extended the comment period for 90 days, from March 23, 2015, to June 26, 2015, to accommodate requests for more time to respond to the proposed rulemaking.

IARC Announces Cancer Classification For Glyphosate And Other Pesticides: On March 20, 2015, the United Nations (UN) World Health Organization's (WHO) International Agency for Research on Cancer (IARC) announced it had completed evaluations assessing the carcinogenicity of five organophosphate pesticides. IARC classified the herbicide glyphosate and the insecticides malathion and diazinon as probably carcinogenic to humans (Group 2A), and classified the insecticides tetrachlorvinphos and parathion as possibly carcinogenic to humans (Group 2B). IARC also found there is "limited evidence" that glyphosate can cause non-Hodgkin's lymphoma and lung cancer in humans. A summary of the final evaluations, together with a brief rationale, is published online in The Lancet Oncology; the detailed assessments will be published as Volume 112 of the IARC Monographs. IARC's press release announcing its evaluation is available online. Monsanto, on behalf of glyphosate task forces in the U.S. and the European Union (EU), immediately voiced its vigorous disagreement with IARC's conclusions, noting various scientific issues with IARC's evaluation that resulted in a conclusion that has not been reached following review by EPA and in the EU. Monsanto's statement is available online. The IARC announcement with regard to glyphosate will further energize both sides of the debate about genetically modified organism (GMO) crops, since there are several crops that have been genetically engineered to be resistant to glyphosate. If some occupational risks are identified as needing possible further mitigation, the distinction between food safety issues and occupational risks may be lost in the rhetoric. Opponents of GMO crops and those who support GMO food product labels can be expected to cite the IARC designation regardless of any further clarification or nuance that the scientific debate over the data might provide. Defenders of the technology will insist that not only is the IARC designation wrong and misleading, but it is clearly at odds with numerous other conclusions reached by multiple competent governmental authorities concerning the safety of using glyphosate and especially consuming GMO crops. Regardless of Monsanto's rapid and detailed response, "dueling science" views are not helpful towards enhancing public confidence in the safety of the food supply, which is ultimately where this headline will be most influential. That will only add pressure on the review process and conclusions contained in the expected EPA registration review of glyphosate data scheduled for completion in 2015.

IARC To Review Seven Chemicals: On March 31, 2015, IARC announced that it will review seven chemicals at its February 2016 meeting. The chemicals are: tetrabromobisphenol A, a flame retardant (CAS No. 79-94-7); the solvents 1-bromopropane (CAS No. 106-94-5) and dimethylformamide (CAS No. 68-12-2); hydrazine (CAS No. 302-01-2); 2-mercaptobenzothiazole (CAS No. 149-30-4); 3-chloro-2-methylpropene (CAS No. 563-47-3); and dimethyl-p-toluidine (CAS No. 99-97-8). Entities wishing to observe the meeting should notify IARC by October 5, 2015. Comments will be accepted until January 4, 2016. Experts wishing to serve on the review panel may be nominated until June 21, 2015. More information is available online.

EPA Issues Final NMP Assessment: On March 23, 2015, EPA released its final assessment of N-methylpyrrolidone (NMP). According to EPA, paint and coating strippers containing NMP may harm the health of people, particularly unborn babies. EPA urged workers and consumers, especially pregnant women or women of childbearing age, who use the solvent to wear gloves and take other precautions to reduce their exposure. According to EPA, much of the NMP manufactured is used in petrochemical processing, to make agricultural chemicals and for other uses. Approximately, nine percent of the chemical's production is used to make paint and coating strippers. Worker and consumer activities that may involve the use of paint and coating strippers made with NMP include various applications, including automotive refinishing, furniture refinishing, art restoration, graffiti removal, and ship paint stripping, among other activities. The EPA final assessment is available online.

EPA Seeks Input On Panel For Use Of Trichloroethylene (TCE) As A Commercial Degreaser: On March 30, 2015, EPA announced that it is seeking nominations from individuals who represent small businesses, small governments, and small not-for-profit organizations to provide input to a federal panel that will explore risk reduction in the use of trichloroethylene (TCE). The panel will focus on EPA's development of a proposed rule to reduce the risks resulting from the use of TCE as a commercial degreaser, as a spotting agent in dry cleaning, and in certain consumer products as appropriate to reduce risks posed from its commercial and consumer use. The Regulatory Flexibility Act requires agencies to establish a Small Business Advocacy Review (SBAR) panel for rules that may have a significant economic impact on a substantial number of small entities. EPA is seeking self-nominations directly from the small entities that may be subject to the rule requirements. Other representatives, such as trade associations that exclusively or primarily represent potentially regulated small entities, may also serve as Small Entity Representatives. Self-nominations were due by April 10, 2015.

EPA Posts New Fact Sheet On 2016 CDR Reporting: EPA recently added to its website a new fact sheet on Chemical Data Reporting (CDR) obligations. See online.

EPA And ACC Reach Settlement Regarding Antimicrobial Pesticide Data Requirements: On March 2, 2015, the United States Environmental Protection Agency (EPA) and the American Chemistry Council (ACC) executed a settlement agreement (Agreement) following ACC's petition for judicial review of EPA's antimicrobial pesticide data requirements final rule issued on May 8, 2013 (78 Fed. Reg. 26936). The judicial review proceeding was held in abeyance while settlement discussions were pursued between EPA and ACC for this final rule, entitled "Data Requirements for Antimicrobial Pesticides." In the settlement, EPA agreed to propose, within four months of the Agreement becoming final, a guidance document entitled Antimicrobial Pesticide Use Site Index (USI), and provide a 30-day comment period. The USI guidance will provide descriptions of direct food uses, indirect foods uses, and non-food uses. In addition, EPA agreed to issue, within 60 days of the Agreement becoming final, an interim guidance document explaining EPA's interpretation of the 200 parts per billion (ppb) residue level above which additional toxicology testing would be required for indirect food uses. Then, within two years and six months of the Agreement becoming final, EPA agreed to propose a correction to the final rule that "will make the language of the Final Rule as it pertains to the 200 ppb level established in 40 C.F.R. § 158.2330(d) consistent with the U.S. Food and Drug Administration's use of that same level by making clear that the 200 ppb level established in the Final Rule is based on total estimated daily dietary intake, and is not based on the amount of residue present on only a single commodity."

EPA Proposes To List 1-Bromopropane To EPCRA Section 313: On April 15, 2015, EPA proposed to add 1-bromopropane to the list of toxic chemicals subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) and Section 6607 of the Pollution Prevention Act of 1990 (PPA). 80 Fed. Reg. 20189. 1-Bromopropane has been classified by the National Toxicology Program (NTP) in its 13th Report on Carcinogens as "`reasonably anticipated to be a human carcinogen." EPA believes that 1-bromopropane meets the EPCRA Section 313(d)(2)(B) criteria because it can reasonably be anticipated to cause cancer in humans. Based on a review of the available production and use information, 1-bromopropane is expected to be manufactured, processed, or otherwise used in quantities that would exceed the EPCRA Section 313 reporting thresholds. Comments must be received on or before June 15, 2015.

FDA

EPA And FDA Sign MOU On Sharing Data: On March 16, 2015, the U.S. Food and Drug Administration (FDA) announced a Memorandum of Understanding (MOU) had been executed between the two agencies on Information Sharing regarding the sharing of data and other confidential information related to substances that may be present in human food, animal food and feed, animal drugs, and cosmetics. EPA and FDA state in the MOU that the sharing of such information will "open[] channels of communication between the agencies" and will "serve to facilitate [EPA and FDA's] accomplishment[s] of their respective missions." The MOU sets forth the safeguards to be implemented with regard to the sharing of confidential information to "protect against unauthorized use or disclosure of any non-public information shared or exchanged pursuant to this MOU." EPA and FDA's decision to share information will have a direct impact on companies with substances that have pesticidal and non-pesticidal applications. As noted in an example in the MOU, an antimicrobial food wash that can also be a labeled pesticide for other uses could have data submitted to FDA demonstrating that the product's use is safe and does not adulterate food and data submitted to EPA demonstrating that the pesticide will not cause unreasonable adverse effects on the environment. Companies that have submitted information to EPA and FDA should be mindful of the potential that such information could be shared between the agencies, and consider whether additional safeguards or data compensation protection may be needed. The MOU is available online.

FDA Proposes Collection Of Information: On March 10, 2015, FDA's Center for Devices and Radiological Health (CDRH) announced it was proposing collecting information on reclassification petitions for medical devices. 80 Fed. Reg. 12642. The reclassification procedure requires submission of specific data. In a proposed rule on March 25, 2014 (79 Fed. Reg. 16252), FDA indicated the elimination of two specific forms for this process. Since the rule is not finalized, FDA continues to use these forms and is seeking comments on the proposed collection of information, including each proposed extension. Comments are due May 11, 2015.

FDA Issues Final Guidance: On March 17, 2015, FDA's CDRH issued a final guidance for industry entitled "Reprocessing Medical Devices in Health Care Settings: Validation Methods and Labeling." 80 Fed. Reg. 13864. The guidance document includes general considerations, specific criteria, and reprocessing validation methods. FDA also held a webinar on this topic on March 24, 2015. The guidance document is available online and more information on the webinar is available online. Comments on the guidance document may be submitted at any time.

FDA FSMA Public Meeting: On March 24, 2015, FDA's Center for Food Safety and Applied Nutrition (CFSAN) announced it will hold a public meeting on April 23-24, 2015, to provide an opportunity to discuss the next steps for the implementation of the Food Safety Modernization Act (FSMA). 80 Fed. Reg. 15612. The meeting will focus on the prevention and risk-based safety standards and the implementation of the new operational strategies. For more information, please consult the Federal Register.

FDA Proposes Collection Of Information For Device Labeling: On April 6, 2015, FDA's CDRH announced it was collecting information on device labeling format and content. 80 Fed. Reg. 18410. The purpose of this study "is to compare existing device labeling from approximately six different types of medical devices with a standard content and format of the same labeling that FDA researchers will develop." Comments are due May 6, 2015.

FDA Proposes Amendment To Food Facilities Definitions: On April 9, 2015, FDA's CFSAN issued a notice of proposed rulemaking (NPRM) to amend and update the definitions of a retail food establishment and add additional requirements for food facility registration details. 80 Fed. Reg. 19160. Comments are due by June 8, 2015.

RCRA/CERCLA

EPA Agrees To Consider Revising RCRA Corrosivity Characteristic: With a back story sparked by the tragedy of 9/11 and that at times reads like a novel teeming with alleged government cover-up, fraud, and employee persecution, EPA agreed to a March 31, 2016, deadline for deciding whether to revise the corrosivity characteristic under the Resource Conservation and Recovery Act (RCRA). The agreement came in a joint motion approved on March 13, 2015, by the U.S. Court of Appeals for the D.C. Circuit and filed between EPA and EPA employee Dr. Cate Jenkins and Public Employees for Environmental Responsibility (PEER), who represents Dr. Jenkins. At issue are the alkaline hazardous waste thresholds under the RCRA corrosivity characteristic at 40 C.F.R. Section 261.22. With respect to alkaline wastes, that provision regulates as a corrosive waste any aqueous waste that has a pH greater than or equal to 12.5 and non-aqueous liquids that corrode steel at a rate greater than 0.250 inch per year under specified testing parameters. Only liquid wastes can be considered RCRA corrosive hazardous wastes. EPA promulgated the standard in 1980 and it has remained unchanged for 35 years. The arc of this story began with the terrorist attacks of 9/11. First responders to the World Trade Center in the aftermath of the 9/11 terrorist attacks inhaled corrosive dust that has reportedly caused long-term adverse health effects. This corrosive dust would not be considered a RCRA hazardous waste by EPA under the current regulations. But Dr. Jenkins alleges that EPA knowingly set the 12.5 pH level ten times too high and that had it set the pH level appropriately at 11.5, then first responders would have been provided with necessary warnings and the requisite personal safety equipment. Dr. Jenkins claims EPA "knowingly falsified the alkaline pH level that is considered safe for human exposure" when it promulgated the corrosivity characteristic, and claims that she raised her concerns with EPA officials but was allegedly ignored. She then took this information in 2006 and 2007 to members of Congress and the FBI and sought protection under federal whistleblower protection laws. In discovery during the litigation, certain EPA officials reportedly admitted that EPA mistakenly set the pH limit too high and that the limitation of the corrosivity characteristic to aqueous wastes was a mistake. Dr. Jenkins and PEER then in September 2011 filed a Rulemaking Petition to EPA, seeking to change the "erroneously-set pH 12.5 to the international standard of pH 11.5 for alkaline hazardous waste, and to remove the limitation to aqueous wastes." The petition claims that:

  • The EPA standard is ten times more lax than the presumed safe levels for alkaline corrosives set by the UN, the EU, and Canada;
     
  • EPA based its standard on a misrepresentation of the international corrosivity standard and has steadfastly refused to revisit this clear error in the succeeding decades; and
     
  • The characteristic contains a false distinction between water and non-water containing materials. This is because on human contact, water-free alkaline materials quickly absorb water from body tissues, particularly the respiratory tract. At high enough levels, this causes permanent tissue damage.

EPA did not respond to the petition. Dr. Jenkins and PEER subsequently filed a Petition for Writ of Mandamus with the U.S. Court of Appeals for the D.C. Circuit in September 2014, asking the court to compel EPA to respond to the petition. The March 13, 2015, agreement between EPA, Dr. Jenkins, and PEER stays the proceedings in the case. Under that joint motion, EPA has agreed to make a decision by March 31, 2016, as to whether it will revise the corrosivity characteristic. EPA makes clear in the agreement that it does not concede that the Petition for Writ of Mandamus has merit, but merely states that it "intends to sign for publication in the Federal Register a response to Petitioners' Petition for Rulemaking on or before March 31, 2016." EPA states that it will either make a tentative decision to grant or deny the petition in the form of an advanced notice of proposed rulemaking (ANPR), a proposed rule, or a tentative determination to deny the petition. If EPA does alter the provision, the impacts could extend beyond the corrosivity characteristic itself. It could affect the list of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), Occupational Safety and Health Administration (OSHA) regulations, past hazardous waste determinations and listings, hazardous waste delistings, and treatment standards under the RCRA Land Disposal Restrictions (LDR) program.

Ruling Allows RCRA Imminent And Substantial Endangerment Authority To Address Air Emissions Deposited On Land: A federal district court has ruled that the imminent and substantial endangerment authority under RCRA can be used to seek relief for contamination caused by deposition of air emissions. In the case, The Little Hocking Water Ass'n v. DuPont, the U.S. District Court for the Southern District of the Ohio Eastern Division ruled that DuPont's emissions of perflourooctanoic acid (C8) that were eventually deposited on Little Hocking's rural water system caused soil and groundwater contamination and does constitute disposal of solid waste under RCRA's imminent and substantial endangerment provisions. The case comes in the wake of a January 14, 2015, decision in which the U.S. District Court for the Eastern District of Washington granted summary judgment in a case against a dairy farm and declared manure from the farm's livestock is a solid waste under RCRA and is similarly subject to the law's imminent and substantial endangerment provision.

EPA Deletes RCRA Comparable Fuels And Gasification Exclusions: In a final rule that was immediately effective, EPA on April 8, 2015, removed the comparable fuels and gasification exclusions under RCRA. 80 Fed. Reg. 18777. EPA had to delete the provisions, as both had been vacated by the U.S. Court of Appeals for the D.C. Circuit in 2014. EPA promulgated the comparable fuels exemption in 1998. 63 Fed. Reg. 33782. Codified at 40 C.F.R. Sections 261.4(a)(16) and 261.38, the rule excluded from the RCRA definition of solid waste fuels made from materials identified as hazardous wastes if, as generated or after treatment and blending, they were sufficiently comparable to commercial fossil fuels for which they were substituted with respect to levels of hazardous constituents and physical properties that affect fuel burning efficiency, such as viscosity and heating value. Because the fuels would contain contaminants no greater than commercial fossil fuels and were otherwise indistinguishable from the fossil fuels that would be burned in their place, EPA found that the comparable fuels would pose no greater risk than commercial fuels when burned, and could be legitimately classified as non-waste fuels rather than as solid and hazardous waste fuels. The comparable fuels rule was vacated by the D.C. Circuit on June 27, 2014. Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014). The court held that the unambiguous language of RCRA Section 3004(q) requires that fuels produced from hazardous wastes must remain regulated as hazardous wastes. EPA promulgated the gasification rule in 2008, 73 Fed. Reg. 57 (Jan. 2, 2008), and codified it at 40 C.F.R. Section 261.4(a)(12)(i). Under the rule, EPA determined that oil-bearing hazardous secondary materials are not RCRA solid wastes if they are inserted into a gasification unit located at a petroleum refinery to produce synthesis gas. EPA thus excluded them from regulation as a solid waste. This rule was similarly vacated by the D.C. Circuit on June 27, 2014. Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014). The court held, similar to its decision on the comparable fuels rule, that the gasification rule violates the plain language of RCRA Section 3004(q) because fuels produced from hazardous wastes remain solid and hazardous wastes. Thus, all hazardous wastes inserted into a gasification unit at petroleum refineries remain subject to RCRA regulations as hazardous wastes.

EPA Delays Proposed Rule Establishing Electronic Hazardous Waste Manifest Fee Structure: In an April 8, 2015, blog post, EPA Assistant Administrator for Solid Waste and Emergency Response Mathy Stanislaus announced that EPA is delaying until May 2016 its proposed rule that would establish the fee structure for the electronic manifest (e-Manifest) under RCRA. EPA had initially hoped to propose the rule by the end of its 2015 fiscal year (FY) (i.e., by September 30, 2015). According to Stanislaus' post, EPA is working with state agencies and other stakeholders to develop the fee program and needs more time to complete that work.

CAA/CWA/SDWA

President Obama Issues Executive Order Calling For Reducing Greenhouse Gas Emissions In The Federal Government And Across The Supply Chain: President Barack Obama on March 19, 2015, signed an Executive Order that the White House claims will reduce the federal government's greenhouse gas (GHG) emissions 40 percent over the next decade from 2008 levels -- saving taxpayers up to $18 billion in avoided energy costs -- and increase the share of electricity the federal government consumes from renewable sources to 30 percent. Complementing this effort, several major federal suppliers are announcing commitments to cut their own GHG emissions. The combined results of the actions are expected to reduce GHG emissions by 26 million metric tons by 2025 from 2008 levels, the equivalent of taking nearly 5.5 million cars off the road for a year, the White House states. To encourage continued progress across the federal supply chain, the Administration released a new "scorecard" to track publicly self-reported emissions disclosure and progress for all major federal suppliers, who together represent more than $187 billion in federal spending and account for more than 40 percent of all federal contract dollars. In addition to setting aggressive new efficiency standards for federal agencies, the Administration engaged with major federal suppliers to encourage them to adopt similar practices. Companies targeted by the administration include IBM, GE, Honeywell, SRA International, Humana, CSC, AECOM, SAIC, HP, Northrop Grumman, United Technologies, CH2MHill, ADS Inc., and Battelle.

Final Rule Strengthens NESHAP For Off-Site Waste And Recovery Facilities: On March 18, 2015, EPA issued a final rule to strengthen the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Off-Site Waste and Recovery Operations (OSWRO) source category. 80 Fed. Reg. 14248. The rule is a result of EPA's residual risk and technology review (RTR) required under the Clean Air Act (CAA). Pursuant to CAA Sections 112(f) and 112(d)(6), EPA has determined that there are developments in practices, processes, and control technologies that warrant revision to the NESHAP standard. EPA consequently revised the tank requirements to require increased control of emissions for tanks in a specific size range that also contain material above a specified vapor pressure. EPA also revised the equipment leak requirements to remove the option to comply with either 40 C.F.R. Part 63, Subpart H or 40 CFR Part 61, Subpart V, and require compliance with only 40 C.F.R. Part 63, Subpart H. EPA also eliminated the exemption for exceedances due to startup, shutdown, or malfunction (SSM). EPA states that the revised standards will cost industry $4.1 million in capital costs and $1.1 million in annualized costs, but in return it is expected to reduce emissions of hazardous air pollutants (HAP) by 211 tons per year. The revised standards were effective immediately.

EPA Issues Final Rule Amending Reporting Requirements Under Mercury And Air Toxics Standard: EPA on March 24, 2015, issued a final rule that amends the reporting requirements in the Mercury and Air Toxics Standard (MATS) for power plants. 80 Fed. Reg. 15510. The final rule temporarily requires owners or operators of affected sources to submit certain required emissions and compliance reports to EPA through the Emissions Collection and Monitoring Plan System (ECMPS) Client Tool. The rule also temporarily suspends the requirement for owners or operators of affected sources to submit certain reports using the Compliance and Emissions Data Reporting Interface (CEDRI). The rule specifically amends the reporting requirements in 40 C.F.R. Section 63.10031(f). The final MATS rule required affected sources to submit certain MATS emissions and compliance information electronically, using either the CEDRI or the ECMPS Client Tool. EPA developed these two systems prior to the MATS rule for the electronic submittal of emissions data from many source categories. CEDRI is currently used by owners or operators of sources regulated under 40 C.F.R. Part 60 and 40 C.F.R. Part 63 to submit performance test reports and other air emissions reports. ECMPS is used to report emissions data under the CAA Title IV Acid Rain Program and other programs that are required to monitor continuously and report emissions according to 40 C.F.R. Part 75. EPA believes these two systems have improved the way source owners and operators report emissions data to EPA by providing a streamlined and standardized electronic approach. The rule was immediately effective.

EPA Proposes SIP Requirements For PM2.5 NAAQS: On March 23, 2015, EPA proposed requirements that state, local, and tribal air agencies would have to meet as they implement the National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5). 80 Fed. Reg. 15340. The proposal details how EPA proposes that air agencies meet the state implementation plan (SIP) requirements that apply to PM2.5 nonattainment areas. The rule addresses general requirements for attainment plan due dates and attainment dates; emissions inventories; attainment demonstrations; provisions for demonstrating reasonable further progress; quantitative milestones; contingency measures; and nonattainment New Source Review (NSR) permitting programs. The rule also clarifies the attainment planning requirements that would apply to PM2.5 NAAQS nonattainment areas based on their classification (either Moderate or Serious), and the process for reclassifying Moderate areas to Serious. EPA also proposes to revoke the 1997 primary annual standard because EPA revised the primary annual standard in 2012. The comment period on the rule closes on May 22, 2015.

EPA Proposes Ban On Wastewater Discharges From Unconventional Oil And Gas Wells: EPA on April 7, 2015, proposed zero discharge pretreatment standards under the Clean Water Act (CWA) for unconventional oil and gas (UOG) extraction wells. 80 Fed. Reg. 18557. The rule establishes pretreatment standards that would prevent the discharge of pollutants in wastewater from onshore UOG extraction facilities to Publicly Owned Treatment Works (POTW). EPA states that wastewater from UOG operations can be generated in large quantities and contains constituents that are potentially harmful to human health and the environment. Because they are not typical of POTW influent wastewater, some UOG extraction wastewater constituents can be discharged, untreated, from the POTW to the receiving stream and can disrupt the operation of the POTW, EPA states. At this time, however, EPA is not aware of any known discharges to POTWs from UOG extraction operations. Instead, UOG extraction wastewater is typically disposed via underground injection wells, reused in fracturing jobs, or transferred to a privately owned wastewater treatment facility. EPA has thus proposed zero discharge standards prohibiting wastewater discharges to POTWs from new and existing UOG facilities. The comment period on the proposal closes on June 8, 2015.

OSHA

OSHA Extends Comment Period On PEL RFI: On October 10, 2014, OSHA published a Request for Information (RFI) soliciting stakeholder feedback with respect to OSHA's approach to managing hazardous chemical exposures in the workplace and establishing Permissible Exposure Limits (PEL). 79 Fed. Reg. 61384. The RFI outlines potential modifications to OSHA's current risk and feasibility assessment approaches and requests additional information about chemical management for the workplace that may be more efficient, while still maintaining worker protection. The RFI set a date of April 8, 2015, for submitting written comments. OSHA received multiple requests from stakeholders to extend the comment period by 60 to 180 additional days. The requests came from the American College of Occupational and Environmental Medicine (ACOEM), the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Industrial Hygiene Association (AIHA), and ORCHSE Strategies, LLC, among others. In response to these requests, on March 25, 2015, OSHA extended the comment deadline to October 9, 2015. 80 Fed. Reg. 15702.

NANOTECHNOLOGY

French Agency Publishes Opinion On Silver Nanoparticles: The French Agency for Food, Environmental and Occupational Health and Safety (ANSES) published on March 10, 2015, an Opinion concerning exposure to silver nanoparticles that "stresses the research that has been carried out to examine the potential health and environmental effects of silver nanoparticles but notes that this is still insufficient to allow the health risks to be assessed." ANSES states that, based on the conclusions of its April 2014 Opinion on the risks associated with manufactured nanomaterials, it recommends limiting the marketing of products containing silver nanoparticles to applications whose advantages have been clearly demonstrated. ANSES recommends encouraging research concerning physico-chemical characterization, exposure assessment, toxicology and ecotoxicology, assessment of antibacterial effectiveness, and bacterial resistance, as well as enhancing the traceability of data and consumer information on products containing silver nanoparticles. ANSES recommends that the use of silver nanoparticles (production, processing, utilization) be limited to applications whose advantages have been clearly demonstrated, and whose benefits to human health outweigh the risks for the environment.

NNI Publishes Supplement To President's 2016 Budget: The National Nanotechnology Initiative (NNI) published on March 11, 2015, its supplement to the President's 2016 budget submitted to Congress. NNI states that the supplement serves as the NNI annual report. According to the annual report, in 2014, federal agencies invested $1.57 billion in nanotechnology-related activities. The President's 2016 request calls for an investment of $1.50 billion, which the report states "affirm[s] the Administration's continuing commitment to a robust U.S. nanotechnology effort." Almost half of the budget request is focused on applied research and development (R&D) and support for the Nanotechnology Signature Initiatives (NSI), "reflecting an increased emphasis within the NNI on commercialization and technology transfer." The NSIs are multiagency initiatives intended to focus on technology areas of national importance that may be more rapidly advanced through enhanced interagency coordination and collaboration.

The annual report provides the following highlights from the five current NSIs:

  • Nanotechnology for Solar Energy Collection and Conversion: Contributing to Energy Solutions for the Future spans efforts in fundamental and applied research to improve photovoltaic and thermophotovoltaic devices and advance the development of solar fuels. These efforts include research on understanding and characterizing essential processes in photovoltaic materials and devices; low-cost conversion of solar energy to electricity through the development of organic photovoltaic solar cells; and the development of high-efficiency, flexible photovoltaics for use in solar aircraft and portable power applications. Agencies participating in this NSI also support interdisciplinary centers and provide early-stage assistance to startup companies to overcome technological barriers to commercialization.
     
  • Sustainable Nanomanufacturing: Creating the Industries of the Future includes efforts focused on the development of robust nanomanufacturing methods for the cost-effective production of nanoscale materials and devices. These efforts include the development and scaled-up production of carbon nanotube bulk materials and their demonstration in lightweight, high-strength composites and lightweight data and power cables. Nanomanufacturing advances also include the development of nanocrystalline alloys for lightweighting vehicles and lightweight, durable ceramics for structural applications. Agencies participating in this NSI, with support from the National Nanotechnology Coordination Office (NNCO), conducted two workshops in 2014 that identified key barriers to broader adoption of carbon nanotubes and cellulose nanomaterials and their commercialization.
     
  • Nanoelectronics for 2020 and Beyond is aimed at discovering and using novel nanoscale fabrication processes and innovative concepts to produce revolutionary materials, devices, systems, and architectures to advance the field of nanoelectronics. Federal agencies participating in this NSI have provided strong support for multidisciplinary university research through two public-private research initiatives in collaboration with the semiconductor industry: the Nanoelectronics Research Initiative, co-funded by the National Science Foundation (NSF) and the National Institute of Standards and Technology, and the Semiconductor Technology Advanced Research Network, supported by the Defense Advanced Research Projects Agency. One area of rapidly growing emphasis is the development and application of novel materials for nanoelectronics. Recently initiated efforts in nanophotonics provide the potential for collaboration with other national efforts, such as the recently announced Integrated Photonics Institute for Manufacturing Innovation.
     
  • Nanotechnology Knowledge Infrastructure (NKI): Enabling Leadership in Sustainable Design is focused on providing a community-based, solutions-oriented knowledge infrastructure to accelerate nanotechnology discovery and innovation. Agencies participating in this NSI are building upon existing activities, such as the National Institutes of Health caNanoLab and the NSF-funded nanoHUB, to facilitate sharing of data and models, respectively, and to promote collaboration. For example, the National Institute for Occupational Safety and Health is working in 2015 to migrate the GoodNanoGuide to nanoHUB. The GoodNanoGuide is a compilation of data on workplace exposures, experimental evidence, and modeling results on the toxic effects of various nanomaterials and other nanotechnology-related environmental, health, and safety information. Other efforts currently being pursued under this NSI include the development of high-throughput combinatorial methods to probe nanomaterial growth and processing methods, and the development of standard procedures to validate computational techniques developed to predict the properties of engineered nanomaterials.
     
  • Nanotechnology for Sensors and Sensors for Nanotechnology: Improving and Protecting Health, Safety, and the Environment is focused on the utilization of nanotechnology to develop physical, chemical, and biological sensors that have higher sensitivity and selectivity, are more portable, and have lower power demands than conventional sensors. Another focus of this NSI is the development of sensors for the detection of nanomaterials in biological and environmental media. In 2014, agencies participating in this NSI, with support from NNCO, sponsored a workshop to identify key challenges faced by sensor developers and critical needs in standards development, testing and evaluation facilities, and manufacturing. The workshop highlighted the need for broader access to test beds for the evaluation of sensor performance and for fabrication facilities that address the gaps in transitioning from prototypes to large-scale commercial production.

NNI Publishes Proceedings Of Meeting On Carbon Nanotube Commercialization: NNI published on March 12, 2015, the proceedings of a September 15, 2014, meeting on "Realizing the Promise of Carbon Nanotubes: Challenges, Opportunities, and the Pathway to Commercialization," held at the National Aeronautics and Space Administration (NASA) Headquarters. According to NNI, a number of common themes and potential future research and development priorities emerged:

  • Increased efforts devoted to manufacturing, quality control, and scale-up;
     
  • Improvements in the mechanical and electrical properties of carbon nanotube (CNT)-based bulk materials to approach the properties of individual CNTs;
     
  • More effective use of simulation and modeling to provide insight into the fundamentals of the CNT growth process;
     
  • Improved understanding of the properties of bulk CNT-containing materials at longer length scales;
     
  • Standard materials and protocols to guide the testing of CNT-based products for commercial applications;
     
  • Life cycle assessments for gauging commercial readiness; and
     
  • Use of public-private partnerships or other collaboration vehicles to leverage resources and expertise to solve these technical challenges and accelerate commercialization.

NNI states that the outcomes of the meeting will help inform the future directions of the NNI Nanotechnology Signature Initiative "Sustainable Nanomanufacturing: Creating the Industries of the Future," which aims to accelerate the development of industrial-scale methods for manufacturing functional nanoscale systems.

ACS Nano Publishes Article On Nanomaterial Categorization For Assessing Risk Potential: ACS Nano, published by the American Chemical Society (ACS), has posted an article entitled "Nanomaterial Categorization for Assessing Risk Potential to Facilitate Regulatory Decision-Making." The abstract of the article, which is co-authored by Lynn L. Bergeson, states:

For nanotechnology to meet its potential as a game-changing and sustainable technology, it is important to ensure that the engineered nanomaterials and nanoenabled products that gain entry to the marketplace are safe and effective. Tools and methods are needed for regulatory purposes to allow rapid material categorization according to human health and environmental risk potential, so that materials of high concern can be targeted for additional scrutiny, while material categories that pose the least risk can receive expedited review. Using carbon nanotubes as an example, we discuss how data from alternative testing strategies can be used to facilitate engineered nanomaterial categorization according to risk potential and how such an approach could facilitate regulatory decision-making in the future.

The article is available for purchase online.

NNI Publishes Outcomes Of The 2015 EU-U.S.: Bridging Nanoehs Research Efforts Joint Workshop: NNI published on March 23, 2015, the outcomes of the March 12-13, 2015, joint workshop held by the U.S. and the EU, "Bridging NanoEHS Research Efforts." The workshop was intended to promote and deepen the collaboration on nanotechnology environmental, health, and safety (nanoEHS) research. Workshop participants reviewed progress toward U.S.-EU Communities of Research (COR) goals and objectives, shared best practices, and identified areas for cross-COR collaboration. To address new challenges, the CORs were realigned and expanded with the addition of a COR on nanotechnology characterization. The seven CORs now address:

  • Characterization;
     
  • Databases and Computational Modeling;
     
  • Exposure through Product Life;
     
  • Ecotoxicity;
     
  • Human Toxicity;
     
  • Risk Assessment; and
     
  • Risk Management and Control.

According to the workshop outcomes, the CORs support the shared goal of responsible nanotechnology development as outlined in the U.S. NNI Environmental, Health, and Safety Research Strategy, and the research strategy of the EU NanoSafety Cluster. The CORs directly address several priorities described in these documents, including the creation of a comprehensive nanoEHS knowledge base and international cooperation on the development of best practices and consensus standards.

USDA NOP Releases New Policy Memo On Nanotechnology: The U.S. Department of Agriculture (USDA) National Organic Program (NOP) issued on March 24, 2015, a policy memorandum clarifying the status of nanotechnology in organic production and handling under the USDA organic regulations. The memorandum states that NOP has received questions about the use of nanotechnology. The memorandum uses the term "engineered nanomaterials" to refer to substances specifically designed and manufactured to have unique properties or behavior attributable to particle size. The term "incidental nanomaterials" is used to refer to substances that are incidental byproducts of other manufacturing (e.g., homogenization, milling) or that occur naturally. The memorandum states that no engineered nanomaterial will be allowed for use in organic production and handling unless the substance has been: (1) petitioned for use; (2) reviewed and recommended by the National Organic Standards Board (NOSB); and (3) added to the National List of Allowed and Prohibited Substances through notice and comment rulemaking. The memorandum notes that to avoid conflicts about the presence of nanomaterials in substances regulated by other federal agencies, NOP is not establishing a separate definition for engineered nanomaterials. Instead, the descriptions in the FDA's Guidance for Industry Considering Whether an FDA-Regulated Product Involves the Application of Nanotechnology and EPA's policies on regulating pesticides that use nanotechnology and control of nanoscale materials under TSCA "should be used as applicable."

EC Calls For Data On Colloidal Silver (Nano) In Cosmetic Products: On March 24, 2015, the European Commission (EC) announced a call for data on the ingredient "colloidal silver (nano)." According to the EC, it has received notification of several cosmetics products containing the ingredient "colloidal silver (nano)" (CAS No. 7440-22-4). The EC states that although this ingredient is not regulated in the cosmetics regulation, it is reported in the Cosmetic Ingredients and Substances (CosIng) database with antimicrobial functions. According to the applicants, the ingredient is used as antimicrobial in nano form, with a lowest cut off particle size of one nanometer (nm) and at maximum concentration up to 1.0 percent in cosmetic products. The EC states that it has concerns on the use of "colloidal silver (nano)" "because of the potential toxicity of its nanoparticles that enter into the cells and because the data submitted by the applicants seems to be insufficient to carry out a full risk assessment." To prepare requests for scientific opinions to the Scientific Committee on Consumer Safety (SCCS), the EC invites interested parties to submit any relevant scientific information on the safety of "colloidal silver (nano)" used in cosmetic products, in particular data regarding all toxicological end-points and an indication on the suggested safe concentration limits. Interested parties, according to the EC, include Member States, manufacturers of cosmetic products, producers of the substances concerned, and relevant industry and consumers associations. Data are due June 30, 2015.

EPA Proposes Reporting And Recordkeeping Requirements For Nanoscale Materials: On April 6, 2015, EPA issued a proposed TSCA Section 8(a) rule concerning reporting and recordkeeping requirements for certain chemical substances when manufactured (including imported) or processed at the nanoscale. 80 Fed. Reg. 18330. EPA proposes to require persons that manufacture or process these chemical substances to report electronically to EPA certain information, including the specific chemical identity, production volume, methods of manufacture and processing, exposure and release information, and existing data concerning environmental and health effects. EPA also proposes to require any persons who intend to manufacture or process chemical substances as discrete nanoscale materials after the effective date of the final rule to notify EPA of the same information at least 135 days before the intended date of commencement of manufacture or processing. Comments are due by July 6, 2014. EPA has posted a fact sheet on its website. EPA states that it anticipates holding a public meeting during the comment period, and it will announce the time and place of the meeting on its web page. More information is available in our March 25, 2015, memorandum, "EPA Proposes Reporting and Recordkeeping Requirements for Nanoscale Materials," and April 8, 2015, memorandum, "EPA Opens Docket for Proposed TSCA Section 8(a) Rule for Nanomaterials."

SCENIHR Identifies Use Of Nanomaterials For Medical Imaging And Drug Delivery And Graphene Nanomaterials As Emerging Issues: On April 9, 2015, the EC Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR) posted a Position Statement on emerging and newly identified health risks to be drawn to the attention of the European Commission. The primary purpose of the paper is to draw the attention of the EC to emerging issues in the non-food area that have been identified by SCENIHR members as having the potential to significantly impact human health and/or the environment in the future. The criteria used to identify an emerging issue include novelty of the stressor or process; scale of possible impacts on man and/or the environment; severity of impacts for particular organisms (priority for life threatening); urgency, i.e., the temporal nature of the likely changes (priority for rapid increases); not investigated in depth recently by a reputable scientific body; and anticipated to be increasingly important over time. The emerging issues identified include the use of nanomaterials for medical imaging and drug delivery and graphene nanomaterials.

BIOBASED/RENEWABLE PRODUCTS

EPA Requests Data For Improved Renewable Fuel Standard Rules: On March 24, 2015, EPA issued two Information Collection Requests (ICR) seeking information from cellulosic biofuels producers as it seeks to improve its process for setting the annual Renewable Fuel Standard (RFS). 80 Fed. Reg. 15595; 80 Fed. Reg. 15597. The proposed ICRs concern projected cellulosic biofuels volumes and E15. Comments received will inform EPA as it prepares to submit the final ICRs to the Office of Management and Budget (OMB) for its official approval and dissemination. In the first proposed ICR on "Cellulosic Production Volume Projections and Efficient Producer Reporting," EPA is seeking to collect information from potential cellulosic biofuel producers to aid in determining the annual volume standards. In the second proposed ICR on "Recordkeeping and Reporting Related to E15 (Renewal)," EPA is seeking comment on recordkeeping and reporting items related to the legal use of E15 in commerce. EPA has overestimated the amount of cellulosic biofuel that can be produced each year. The information request is intended to improve the data EPA has available to it when it sets the annual blending mandate. Comments are due May 26, 2015.

NRC Issues Report On Industrialization Of Biotechnology: On March 13, 2015, the National Research Council (NRC) issued its long awaited report titled "Industrialization of Biology: A Roadmap to Accelerate the Advanced Manufacturing of Chemicals." Under the Council's Board on Chemical Sciences and Technology and Board on Life Sciences, an ad hoc committee will develop a roadmap of the advances in basic science and engineering capabilities necessary to realize the full benefit of research investments intended to enable the advanced manufacturing of chemicals using biological systems. Essential elements of the roadmap include: identification of the core scientific and technical challenges that must be overcome; tools, measurement techniques, databases, and computational techniques needed to serve as the building blocks for research and applications; how to develop, share, and diffuse common interoperable standards, languages, and measurements; and when and how to integrate non-technological insights and societal concerns into the pursuit of the technical. The report provides technical conclusions, recommendations, and roadmap goals that are a must read for businesses in this space. Importantly, the Committee recommends: "In order to transform the pace of industrial biotechnology by enabling commercial entities to develop new biomanufacturing processes, the committee recommends that the National Science Foundation, U.S. Department of Energy, National Institutes of Health, U.S. Department of Defense, and other relevant agencies support the scientific research and foundational technologies required to advance and to integrate the areas of feedstocks organizational chassis and pathway development, fermentation, and processing as outlined in the roadmap goals." The report is available online.

BRAG Biobased Products News And Policy Report: Bergeson & Campbell, P.C.'s (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 www.braginfo.org.

LEGISLATIVE DEVELOPMENTS

REINS Act Passes Judiciary Committee: On a 15-10 vote, the House Judiciary Committee on April 15, 2015, passed H.R. 427, the Regulations from the Executive In Need of Scrutiny Act (REINS). The bill would require federal agencies to win approval from Congress for major regulations that could have an impact of $100 million or more on the economy.

House Committee Passes Bill Repealing WOTUS Rule: The House Transportation and Infrastructure Committee on April 15, 2015, passed the Regulatory Integrity Protection Act of 2015 (H.R. 1732). The bill would give EPA 30 days to repeal its proposed "Waters of the United States" (WOTUS) rule, which EPA issued on April 21, 2014. 79 Fed. Reg. 22188. EPA and the Army Corps of Engineers (Corps) would then have three months to consult with state and local officials on how to address jurisdictional issues under the CWA. The bill passed largely along a party line vote of 36-22.

Representative Shimkus Releases Discussion Draft Of TSCA Reform Legislation; House Subcommittee Holds Hearing On TSCA Modernization Act: On April 7, 2015, Representative John Shimkus (R-IL), Chair of the House Energy and Commerce Subcommittee on Environment and the Economy, released a Discussion Draft of the TSCA Modernization Act of 2015 (TMA DD). In the previous Congress, Shimkus introduced first a discussion draft of the Chemicals in Commerce Act (CICA1), and then a revised discussion draft of the bill, CICA2. In addition, Shimkus held "countless" hearings concerning reform of TSCA. Memoranda summarizing these earlier bills and hearings are available on our website. According to the Subcommittee's April 7, 2015, press release, TMA DD "builds off the subcommittee's work to reform chemical management last Congress and further bipartisan negotiations this year." More information is available in B&C's memorandum.

On April 14, 2015, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing on the discussion draft of TMA DD. In his opening statement, Shimkus laid out an ambitious plan for proceeding with TMA DD. Shimkus plans to hold a markup in Subcommittee on TMA DD around May 14, 2015. Once the Subcommittee has completed its work, he will ask Committee Chair Fred Upton (R-MI) to schedule a full Committee hearing as soon as practicable. Subcommittee Ranking Member Paul Tonko (D-NY) expressed his appreciation for Shimkus' tone, friendship, and partnership. Tonko stated that TMA DD is a significant departure from the Udall-Vitter bill in the Senate (S. 697) and is different from CICA1 and CICA2. Upton noted that TMA DD is more focused than last year's bill, and commented that this is the year for meaningful TSCA reform. Committee Ranking Member Frank Pallone, Jr. (D-NJ) stated that TMA DD takes a thoughtful and innovative approach and has the potential to move chemical regulation forward. According to Pallone, while TMA DD does not attempt to reach the goal of a fully reformed TSCA, it will improve the current statute in several ways. More information is available in B&C's memorandum.

Senate Environment And Public Works Committee Holds Hearing On TSCA Reform Legislation: On March 18, 2015, the Senate Environment and Public Works Committee held a hearing entitled the "Frank R. Lautenberg Chemical Safety for the 21st Century Act." The purpose of the hearing was to examine S.697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Testifying at the hearing were: Jim Jones, Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP), EPA; Dr. Richard Denison, Ph.D., Senior Scientist, Environmental Defense Fund; Dr. Edward McCabe, Senior Vice President and Chief Medical Officer, March of Dimes Foundation; Dr. Lynn Goldman, M.D., Dean, Milken Institute School of Public Health, The George Washington University; Ken Cook, President and Co-founder, Environmental Working Group; and Brian E. Frosh, Attorney General, State of Maryland. An archived webcast of the hearing, witness testimony, and member statements are available online. Committee Chair James Inhofe (R-OK) praised the bill, which was introduced by Senators David Vitter (R-LA) and Tom Udall (D-NM). Senator Barbara Boxer (D-CA), Ranking Minority member on the Committee, however, had caustic words for the bill. She stated: "It is clear that in its present form, the Udall-Vitter bill fails to provide the public health protections needed and is worse than current law. This bill still does not have the tools necessary to put safeguards in place -- even for the most dangerous toxic substances like asbestos." She instead urged passage of a bill she introduced with Senator Ed Markey (D-MA), the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act (S. 725). More information on the hearing is available online.

Ignoring Veto Threat, House Passes Bill Revising EPA Science Advisory Board Process: The House on March 17, 2015, passed the EPA Science Advisory Board Reform Act (H.R. 1029) by a vote of 236-181. Introduced by Representative Frank Lucas (R-OK), the bill would amend Section 8(a) of the Environmental Research, Development, and Demonstration Authorization Act of 1978 to alter how EPA Science Advisory Board (SAB) members are selected, expand public participation opportunities, enable reviews of EPA risk or hazard assessments, limit non-scientific policy advice, expand required disclosures, and increase the ability of Board members to express dissenting views. The White House on March 3, 2015, issued a Statement of Administration Policy threatening to veto the bill. The White House claims that H.R. 1029 would "negatively affect the appointment of experts and would weaken the scientific independence and integrity of the SAB." The statement also claims that the bill's limitations on SAB's members' indirect involvement in the review and evaluation of their own work "will be difficult and consequently problematic to implement." The White House further claims that H.R. 1029 "would add burdensome requirements on the SAB" that would "saddle the SAB with workload that would impair its ability to carry out its mandate."

House Budget Resolution Takes Aim At Clean Power Plan: A House of Representatives budget resolution for FY 2016 criticizes EPA's proposed Clean Power Plan rule that limits emissions of GHGs from coal-fired utilities. The resolution states that the highest regulatory costs come from rules issued by EPA and are primarily targeted at the coal industry. To reduce the costs of the Clean Power Plan and other regulations, the resolution would seek to impose several changes at the rulemaking process. It calls for a limit on the total costs of federal regulation in a year and would also require Congressional approval of new federal regulations that impose an annual cost on the economy of $100 million or more. The resolution would also require federal agencies conduct a three-year retrospective cost-benefit analysis of all new major regulations. All major regulations (those with an economic impact of $100 million or more) would also be required to go through a formal rulemaking process, and all federal agencies -- not just those in the executive branch -- would be required to conduct regulatory impact analyses of their regulations.

House And Senate Bills Would Delay Implementation Of Revised Ozone NAAQS: A duo of bills introduced in Congress on March 17, 2015, would delay, if not outright block, the implementation of EPA's revised NAAQS for ozone. The Clean Air, Strong Economies Act (S. 571), introduced by Senators John Thune (R-SD) and Joe Manchin (D-WV), would block the effectiveness of the NAAQS until 85 percent of areas that currently do not meet the 2008 ozone NAAQS can demonstrate compliance with that standard. A companion bill (H.R. 1388) was introduced in the House by Representative Peter Olson (R-TX). The 2008 ozone NAAQS is 75 parts per billion (ppb). The revised standard, which EPA is required to issue in final by October 1, 2015, under a court order, is 65 ppb to 70 ppb. Both bills also would require EPA to consider costs before implementing the rule; EPA is currently not required to consider the cost of compliance when setting NAAQS.

Bill Would Amend FIFRA To Allow Sale Of Antimicrobial Copper Alloys: Representative Robert Latta (R-OH) on March 18, 2015, introduced H.R. 1424, a bill that would amend FIFRA to allow the marketing, distribution, or sale of solid antimicrobial copper alloys with certain claims. The legislation would also amend the Federal Food, Drug, and Cosmetic Act (FFDCA) to exclude certain solid antimicrobial copper alloys from regulation as drugs or devices.

Democratic Lawmakers Introduce "Frack Pack" Of Bills Intended To Improve Safeguards For Hydraulic Fracturing: Democratic lawmakers in the Senate and House on March 18 and 19, 2015, introduced a package of bills intended to improve the regulation and safeguards for hydraulic fracturing, or fracking. The so-called "Frack Pack" was initiated on March 18, 2015, when Senator Robert Casey (D-PA) introduced the Fracturing Responsibility and Awareness of Chemicals (FRAC) Act (S. 785), which is intended to increase environmental protections for communities where natural gas drilling takes place. The bill would require drillers to disclose the chemicals that go into the ground during the hydraulic fracturing process "and close a 2005 loophole that prevents EPA from conducting rigorous oversight of hydraulic fracturing which occurs during natural gas drilling," Casey explained in a statement introducing the bill. The Safe Drinking Water Act (SDWA) mandates regulation of underground injection activities to protect groundwater resources. In the 2005 Energy Policy Act, however, which arose out of Vice President Cheney's Energy Task Force, Congress amended the definition of "underground injection" under the SDWA to exclude "the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities." See SDWA Section 300h(d)(1)(B)(ii). The FRAC Act would eliminate this exemption and require that the natural gas industry provide complete disclosure of the chemical composition of hydraulic fracturing materials prior to and after hydraulic fracturing. This information will then be made public on a website. Disclosure will ensure that if drinking water supplies, surface waters, or human health are compromised, the public and first responders will be properly informed, Casey stated. On March 19, 2015, Representative Jan Schakowsky (D-IL) introduced the Safe Hydration is an American Right in Energy Development (SHARED) Act (H.R. 1515). The legislation would require testing of water contamination near hydraulic fracturing sites and public disclosure of the testing results. The SHARED Act is supported by a number of the nation's leading public health and environmental organizations, including Clean Air Task Force, Clean Water Action, Earthjustice, Earthworks, Environment America, Food and Water Watch, League of Conservation Voters, Natural Resources Defense Council, Sierra Club, and WildEarth Guardians. Representative Diana DeGette (D-CO) on March 19, 2015, introduced legislation (H.R. 1482) that is similar to Senator Casey's bill. It would eliminate the SDWA exemption for the injection of fracking chemicals. Representative Matt Cartwright (D-PA) also added legislation to the Frack Pack. His bill (H.R. 1460) would amend the CWA and direct the Department of the Interior (DOI) to conduct a study on the impacts of stormwater runoff from oil and gas operations.

House Committee Passes Bill That Would Ban EPA From Issuing CWA Permits For Pesticide Applications: The House Agriculture Committee on March 19, 2015, passed by voice vote a bill that would that would ban EPA from requiring CWA permits for the spraying of pesticides at or near bodies of water. Representative Bob Gibbs (R-OH) on February 12, 2015, introduced the Reducing Regulatory Burdens Act of 2015 (H.R. 897). The bill specifically prohibits EPA from issuing National Pollutant Discharge Elimination System (NPDES) permits for any pesticides that already are authorized for sale, distribution, or use under FIFRA. The bill would amend both the CWA and FIFRA. Gibbs chairs the House Infrastructure Subcommittee on Water Resources and Environment and helped to ensure passage of an identical version of the legislation in the House in July 2014. The bill now moves to the House Transportation and Infrastructure Committee for consideration.

House Subcommittee Passes Bill Codifying Coal Ash Regulation: The House Energy and Commerce Subcommittee on Environment and the Economy on March 25, 2015, by a 16-5 vote, passed a discussion draft of legislation that would alter how coal combustion residues (CCR) are regulated under RCRA. The Improving Coal Combustion Residuals Act of 2015 establishes state permit programs for CCRs and codifies as the minimum federal requirements, the technical standards and requirements that EPA developed in its December 19, 2014, final CCR rule. The bill retains CCRs regulatory status as non-hazardous waste. The bill authorizes states to adopt and implement coal CCR permit programs that include the minimum requirements set out in the legislation, but states would be allowed to choose whether to implement a CCR program. If a state is currently authorized to implement a permit program under Section 3006 or Section 4005 of RCRA, the state will be authorized to implement immediately a CCR permit program. If a state opts not to implement a permit program, then EPA would implement the program for that state. The bill requires that every coal ash permit program include all of the minimum requirements laid out in the legislation. States may choose to make their permit programs more protective than the minimum federal requirements. EPA will have the ability to review state permit programs at any time to ensure that the permit programs meet the minimum statutory requirements. The standards set forth in EPA's December 2014 final rule would serve as the minimum requirements for state CCR programs. And the bill incorporates many of the requirements of the final rule; for example, the design requirements (40 C.F.R. Sections 257.70 and 257.72), post-closure care requirements (40 C.F.R. Section 257.104), air criteria (40 C.F.R. Section 257.80), recordkeeping requirements (40 C.F.R. Section 257.105), requirements for run-on/run-off controls (40 C.F.R. Section 257.81), requirements regarding hydrologic and hydraulic capacity requirements (40 C.F.R. Section 257.82), and requirements for inspections (40 C.F.R. Sections 257.83 and 257.84). The bill also requires that criteria regarding surface water protection and financial assurance be included in coal ash permit programs, and requires financial assurance for maintaining final cover on closed inactive impoundments. The bill also addresses inactive surface impoundments in the same manner as in the EPA final rule. Within two months of the date of enactment, the owner or operator of every inactive surface impoundment must notify EPA and the state in which it is located regarding whether it intends the impoundment or to manage it in accordance with the legislation. If an inactive impoundment fails to close within three years from date of enactment, it will immediately be subject to all of the same requirements as any other regulated structure, even in the absence of a permit.

Bills Seeking To Reduce Regulatory Burdens Pass House Judiciary Committee: Several bills seeking to streamline federal regulatory hurdles were approved by the House Judiciary Committee on March 24, 2015. The Committee by an 11-15 vote passed the Responsibly and Professionally Invigorating Development Act (RAPID) (H.R. 348). It also passed the Sunshine for Regulatory Decrees and Settlements Act (H.R. 712) and the Searching for and Cutting Regulations that Are Unnecessarily Burdensome (SCRUB) Act (H.R. 1155). The RAPID Act would provide for lengthier periods of time for agencies to review projects under NEPA. H.R. 712 seeks to do away with so-called "sue and settle" techniques allegedly used by environmental groups to force EPA and other federal agencies to ratchet down regulations. The SCRUB Act would force agencies to remove one economically costly rule from the Code of Federal Regulations before promulgating a new one.

Senate Agriculture Committee Holds Hearing On Waters Of The U.S. Rule: On March 24, 2015, the Senate Agriculture, Nutrition and Forestry Committee held a hearing on the so-called WOTUS rule, which seeks to clarify EPA's regulatory jurisdiction under the CWA. The intent of the hearing was to gain stakeholders' views on the WOTUS rule. Testifying before the Committee were Leslie Rutledge, Attorney General, State of Arkansas; Dr. Donald van der Vaart, Secretary, North Carolina Department of Environment and Natural Resources; Susan Metzger, Assistant Secretary, Kansas Department of Agriculture; Josh Baldi, Regional Director, Washington State Department of Ecology; Lynn M. Padgett, Commissioner, Ouray County, CO; Furman Brodie, Vice President, Charles Ingram Lumber Company; Jason Kinley, Director, Gem County Mosquito Abatement District, Emmett, ID; Mac N. McLennan, President & CEO, Minnkota Power Cooperative, Inc.; Jeff Metz, Owner & Operator, Metz Land and Cattle Co.; and Kent Peppler, President, Rocky Mountain Farmers Union. A webcast of the hearing and witness testimonies are available online. The Committee sought input from the states on the rule and their views on practical implementation issues. The officials from Arkansas, Kansas, and North Carolina urged for withdrawal of the rule, while the other state representatives offered more tempered criticism of the proposed regulation, particularly its apparent ambiguity. Washington State, however, voiced its support of the WOTUS rule.

Bipartisan Group Of Senators Introduces Nuclear Waste Storage Bill: On March 24, 2015, a bipartisan group of Senators -- Lisa Murkowski (R-AK), Maria Cantwell (D-WA), Lamar Alexander (R-TN), and Dianne Feinstein (D-CA) -- introduced legislation to safeguard and permanently dispose of the nation's stockpiles of spent nuclear fuel. The Nuclear Waste Administration Act of 2015 (S. 854) would establish an independent agency to manage the country's nuclear waste program in place of the Department of Energy (DOE). The bill would direct the new agency to build a pilot storage facility to hold spent fuel from decommissioned nuclear power plants and emergency shipments from operating plants. It would also require the construction of consolidated storage facilities for non-priority spent fuel for utilities or defense wastes for DOE on a temporary basis and establish siting processes for storage facilities and repositories. The bill would authorize an immediate pilot storage facility for priority waste and does not set waste volume restrictions on storage. A Nuclear Waste Fund would be instituted under the bill, into which fees collected from the utilities would be deposited. These funds will be available to the Administration without further appropriation. With respect to defense wastes, the bill empowers DOE to revisit the decision to commingle defense waste with commercial spent fuel. If DOE determines that separate waste facilities are necessary or appropriate for efficiently managing defense wastes, DOE may site, construct, and operate one or more facilities for that purpose.

Senate Bill Would Strengthen Standards For Crude Oil Rail Transport: On March 25, 2015, Senators Maria Cantwell (D-WA), Patty Murray (D-WA), Tammy Baldwin (D-WI), and Dianne Feinstein (D-CA) introduced legislation that would strengthen safety standards for trains hauling volatile crude oil. The Crude-By-Rail Safety Act of 2015 (S. 859) would require the Pipeline and Hazardous Materials Safety Administration (PHMSA) to set standards for volatility of gases in crude oil hauled by rail. It also would ban immediately the use of DOT-111 and unjacketed CPC-1232 tank cars. The bill would require new tank car design standards that include 9/16th inch shells, thermal protection, pressure relief valves, and electronically-controlled pneumatic (ECP) brakes. It also would increase fines for violations of the standards. Additional funding would be provided for first responder training, equipment and emergency preparedness, and increased rail inspections and energy product testing. Also, the bill would require comprehensive oil spill response plans, and it would mandate that railroads establish a confidential "close-call" reporting system for employees to report problems anonymously. In addition, the legislation would require railroads to disclose crude-by-rail movements to State Emergency Response Commissions (SERC) and Local Emergency Planning Committees (LEPC).

Length Of NPDES Permits Would Be Increased Under House Bill: On March 25, 2015, Representative Sam Graves (R-MO) introduced legislation to increase the length of the NPDES permit cycle from five to 20 years. The bill (H.R. 1623) is intended to ease financial burdens on municipalities by providing them with time to finance required improvements. According to Graves, municipalities are often forced to take out a 20-year loan for each NPDES permit, meaning that at any time, they are paying off loans for four different five-year permits.

American Mineral Security Act Introduced In Senate: Senator Lisa Murkowski (R-AK) on March 26, 2015, introduced legislation intended to strengthen the mineral security of the U.S. The American Mineral Security Act of 2015 (S. 883) is aimed at preventing future mineral supply stocks and to boost the competitiveness of the U.S. energy, defense, electronics, medical, and manufacturing industries. Citing a 60 Minutes segment that shows the U.S. is "alarmingly dependent on foreign sources for dozens of minerals," she stated that her bill "offers a chance to change course. It would improve our mineral security and protect our manufacturers for decades to come." Murkowski referred to a National Academy of Sciences report stating that more than 25,000 pounds of new minerals are needed per person, per year in the U.S. But the U.S. Geological Survey (USGS) reports that America is more than 50 percent dependent on foreign nations for at least 43 separate mineral commodities, and a recent survey of manufacturing executives found that more than 90 percent worry about supply disruptions outside of their control. Murkowski's bill is an update of her previous legislation on this subject. The bill requires the Director of the USGS to establish a list of minerals critical to the American economy and provides a comprehensive set of policies to address issues associated with their discovery, production, use, and re-use. To improve the efficiency of the notoriously slow federal permitting process for new mines, the American Mineral Security Act includes a series of steps to reduce delays and ensure timely decisions.

Representative Mooney Introduces Bill To Prevent Implementation Of Stream Buffer Rule: Representative Alex Mooney (R-WV) on March 30, 2015, introduced a bill that he states is intended "to preempt a new front in the war on coal." Mooney introduced the Supporting Transparent Regulatory and Environmental Actions in Mining (STREAM) Act (H.R. 1644) to prevent the implementation of a stream buffer zone rule being developed by DOI's Office of Surface Mining, Reclamation and Enforcement (OSM). OSM is slated to issue in April proposed rules implementing stream buffer requirements for coal mining operations. Mooney claims that the proposed regulations would essentially ban mining operations within 100 feet of anything OSM defines as a stream. "Even worse, the proposed new regulations are expected to prohibit mining underneath a stream, making underground coal mining very challenging," stated Mooney. The STREAM Act would require OSM to use existing funds to conduct a study of the rule's impact on industry. It would also block implementation of a new rule for one year after completion of that study to allow for congressional, industry, and public review. And the bill would prevent OSM from "seizing" duplicative regulatory jurisdiction from other agencies; namely, EPA which already has similar regulatory authority under the CWA. Mooney states that this is particularly significant because OSM was never intended by statute to be an environmental regulator. It was instead designed to be an agency to monitor and assist in the reclamation of closed surface mines. Mooney claims that the rule, if implemented, would shutter tens of thousands of jobs in West Virginia and hundreds of thousands nationwide.

House Bill Would Hold Foreign Parties Liable For Oil Spills: Representative Carlos Curbelo (R-FL) on March 26, 2015, introduced the Foreign Spill Protection Act of 2015 (H.R. 1647), a bill intended to ensure that parties responsible for oil spills are held liable for remediating the spills. The bill would amend the Oil Pollution Act of 1990 (OPA). One of the premises of the OPA is that the party responsible for an oil spill is responsible for all cleanup costs. The OPA's authority is limited, however, solely to spills that originate in American waters. If a spill were to occur off the coast of a foreign nation, and the oil reached American waters, the Oil Liability Trust Fund established under the OPA would pay $150 million for cleanup and up to $850 million for claims. The U.S. Attorney General has authority to seek compensation from the responsible party, but the most they would have to pay is $1 billion. In a bipartisan effort to address the perceived shortcomings of the OPA, Curbelo and Representative Patrick Murphy (D-FL) introduced H.R. 1647. They state that the legislation would ensure that the responsible party, regardless of origin, pays for all American cleanup costs by applying OPA to them. Furthermore, the bill would apply the CWA penalties on the responsible foreign party.

Senate Subcommittee Examines Oversight Of EPA, CSB: In its first hearing under GOP control, the Senate Environment and Public Works Subcommittee on Superfund, Waste Management, and Regulatory Oversight on April 14, 2015, held a hearing to examine the Obama Administration's management of environmental agencies, including EPA, the United States Chemical Safety Board (CSB) and the Fish and Wildlife Service. A webcast of the hearing, members' opening remarks, and witness testimonies are available online. Witnesses testifying before the panel were Mary Kendall, Inspector General of DOI, and Arthur Elkins, who serves as EPA's and CSB's Inspector General. Republican members of the Subcommittee did not blunt their criticism for the management of EPA.

House Energy And Commerce Subcommittee Holds Hearing On Bill That Would Grant States A Reprieve From EPA's Clean Power Plan: The House Energy and Commerce Subcommittee on Energy and Power on April 14, 2015, held a hearing on the Ratepayer Protection Act, a draft bill sponsored by Subcommittee Chair Ed Whitfield (R-KY) that would grant states a reprieve from the deadline to submit SIPs under EPA's proposed Clean Power Plan until the legal challenges to the rule have been resolved. Testifying before the Committee were Janet McCabe, EPA Acting Assistant Administrator for the Office of Air and Radiation; Eugene M. Trisko, Energy Economist and Attorney on behalf of the American Coalition for Clean Coal Electricity; Lisa D. Johnson, CEO and General Manager, Seminole Electric Cooperative, Inc. on behalf of National Rural Electric Cooperative Association; Kevin Sunday, Manager, Government Affairs, Pennsylvania Chamber of Business and Industry; Paul Cicio, President, Industrial Energy Consumers of America; Susan F. Tierney, Senior Advisor, Analysis Group; and Melissa A. Hoffer, Chief, Energy and Environment Bureau, Office of the Attorney General, Commonwealth of Massachusetts. Testimony and a webcast of the hearing are available online. Under the June 18, 2014, proposed rule (79 Fed. Reg. 38430), EPA would require states to meet individual carbon dioxide (CO2) emissions "goals" set by EPA for each state's electricity sector, including an "interim goal" for the period 2020 to 2029, and a "final goal" beginning in 2030. The state goals are calculated based upon four "building blocks." To comply with the goals, EPA directs states to consider a broad array of actions across their electricity system. As proposed, states would be required to submit a plan to meet the new CO2 goals to EPA within 13 months of a final rule, with a possible one-year extension for individual state plans and two-year extension for plans that include a multi-state approach. For many states, plan development may require new legislation or regulations, and decisions that may not easily be reversed, including decisions to shut down power plants, and to begin the planning, financing, and constructing of new facilities and infrastructure. Once approved, a state plan would become federally enforceable and could not be changed without EPA approval. If a state failed to submit a plan EPA determined to be satisfactory, EPA would impose a yet-to-be-developed federal plan on the state. On March 23, 2015, Chair Whitfield released a discussion draft of the Ratepayer Protection Act. The legislation would allow for judicial review of any final rule addressing CO2 emissions from existing fossil fuel-fired electric utility generating units before requiring compliance with the rule, and also allow states to protect households and businesses from significant adverse effects on electricity ratepayers or reliability. The bill also provides that no state shall be required to adopt a state plan, and no state or entity within a state shall become subject to a federal plan, if the Governor of the state makes a determination, and notifies the EPA Administrator, that implementation of the state or federal plan would have a significant adverse effect on (1) the state's residential, commercial, or industrial ratepayers, taking into account the rate increases necessary to implement the state or federal plan, and other rate increases that have been or are anticipated to be necessary to implement other federal or state environmental requirements; or (2) the reliability of the state's electricity system, taking into account the effects on the state's existing and planned generation and retirements, transmission and distribution infrastructure, and projected electricity demands.

House Transportation And Infrastructure Subcommittee Holds Hearing On Hazmat Rail, Road, And Pipeline Rulemakings: The House Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous Materials on April 14, 2015, held a hearing entitled "Oversight of Ongoing Rail, Pipeline, and Hazmat Rulemakings." The purpose of the hearing was to review the status of several rulemakings related to the transportation of hazardous materials (hazmat). Testifying before the panel were Sarah Feinberg, Acting Administrator of the Federal Railroad Administration (FRA); Timothy Butters, Acting Administrator of the PHMSA; and Christopher Hart, Chairman of the National Transportation and Safety Board (NTSB). Witness testimonies and a webcast of the hearing are available online. Lawmakers questioned the witnesses on the status of several hazmat rulemakings from their agencies, with an emphasis on the PHMSA/FRA rule for "high hazard flammable trains," which is slated to be issued in May. Also addressed was the status of almost 50 mandates required under the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. The panel also reviewed the status of integrity management regulations for pipelines, maximum allowable operating pressure standards for gas transmission pipelines in certain high population areas, and a regulation for automatic and remote-controlled shut-off valves for new transmission pipelines.

WOTUS Rule Debated In House Subcommittee Hearing: The controversial WOTUS rule was the subject of an April 14, 2015, hearing of the House Natural Resources Subcommittee on Water, Power, and Oceans. Witnesses at the hearing were William W. Buzbee, Professor of Law, Georgetown University Law Center; Mike Heinen, General Manager, Jefferson Davis Electric Cooperative, Inc.; Timothy Mauck, Commissioner Clear Creek County, Colorado; Tom Myrum, President, Washington State Water Resources Association; James Ogsbury, Executive Director, Western Governors' Association; Ron Sullivan Board of Directors, Eastern Municipal Water District, Perris, California; Estevan Lopez, Commissioner, U.S. Bureau of Reclamation; and Leslie Weldon, Deputy Chief, U.S. Forest Service. The tone of the hearing was evident at the outset from its title: "Proposed Federal Water Grabs and Their Potential Impacts on States, Water and Power Users, and Landowners." EPA and the Corps jointly released the proposed rule on April 21, 2014. EPA Administrator Gina McCarthy stated that "[t]he proposed rule clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court's more narrow reading of Clean Water Act jurisdiction. We are clarifying protection for the upstream waters that are absolutely vital to downstream communities." Republicans on the Subcommittee held different views of the WOTUS rule. They claim that the proposal principally re-defines "waters of the United States" in two ways: (1) it states that all waters adjacent to jurisdictional waters will themselves be jurisdictional (under the current rule, only adjacent wetlands are jurisdictional); and (2) it purports to implement a version of the "significant nexus" test, as introduced by Justice Kennedy's concurrence in Rapanos, which states that waters or wetlands can be jurisdictional provided the Agency can establish a significant nexus to a U.S. water. GOP members of the panel voiced concern that the WOTUS rule would adversely impact federal and non-federal water and power projects throughout the country.

House Energy And Commerce Committee Passes Coal Ash Bill: On April 14 and 15, 2015, the House Energy and Commerce Committee passed legislation that would revise EPA's RCRA rule establishing standards for CCRs. The Committee's Subcommittee on Environment and the Economy approved the bill with bipartisan support last month before lawmakers left for recess. The rule does not regulate CCRs as hazardous waste under RCRA, but it does create new standards for CCR disposal facilities. The Improving Coal Combustion Residuals Regulation Act of 2015 establishes state permit programs for coal ash, and it incorporates as the minimum federal requirements, the technical standards and requirements that EPA developed in the final rule. The bill authorizes states to adopt and implement CCR permit programs that include the minimum requirements set out in the legislation. The bill allows states to choose whether to implement a CCR program. If a state currently is authorized to implement a permit program under Section 3006 or Section 4005 of RCRA, the state already will have demonstrated to EPA the ability to implement a permit program under RCRA and will be authorized immediately to implement a coal ash permit program. If a state opts not to implement a permit program, then EPA will implement a program for that state. States would be required to notify EPA within six months of enactment whether or not they intend to implement their own coal ash permit program. The bill requires that every coal ash permit program include all of the minimum requirements laid out in the legislation. States may choose to make their permit programs more protective than the minimum federal requirements. The bill allows EPA to review state permit programs at any time to ensure that the permit programs meet the minimum statutory requirements. The bill identifies specific considerations for EPA to analyze state permit programs and allows EPA to take over a state permit program that fails to meet the minimum requirements.

House Committee Holds Hearing On Obama's UN Climate Pledge: The House Committee on Science, Space and Technology on April 15, 2015, held a hearing entitled "The President's UN Climate Pledge: Scientifically Justified or a New Tax on Americans?" The hearing examined the scientific justification and economic impact of the United States' submission to the United Nations Framework Convention on Climate Change (UNFCCC) issued on March 31, 2015. Testifying at the hearing were Dr. Judith Curry, Professor, School of Earth and Atmospheric Sciences, Georgia Institute of Technology; Karen Harbert, President and CEO, Institute for 21st Century Energy, U.S. Chamber of Commerce (former Assistant Secretary for Policy and International Affairs, U.S. Department of Energy); Jake Schmidt, Director, International Program, Natural Resources Defense Council; and Dr. Margo Thorning, Senior Vice President and Chief Economist, American Council for Capital Formation. The Obama Administration's Intended Nationally Determined Contribution (INDC) commits the United States to reducing GHG emissions 26-28% by 2025, based on the 2005 level, with "deep, economy-wide emission reductions of 80% or more by 2050." The hearing focused on the scientific understanding and uncertainties of this proposal, the technologies and authorities required to meet the Administration's commitment, the environmental impact, and economic cost of this proposal.

Bill Would Force EPA To Withdraw WOTUS Rule: Representative Bill Shuster (R-PA) on April 13, 2015, introduced a bill that would force EPA to withdraw its WOTUS rule. Shuster, Chairman of the Transportation and Infrastructure Committee, introduced the Regulatory Integrity Protection Act of 2015 (H.R. 1732) to "stop EPA attacks on Pennsylvanians." Shuster stated: "This EPA power grab demonstrates how important it is that Congress reins in the federal government. My legislation stops the Waters of the United States rule and protects Pennsylvania farmers, homebuilders, and small businesses from its harmful implications." The WOTUS proposal attempts to clarify which water bodies are subject to federal jurisdiction under the CWA. The rule's critics claim that in doing so, EPA would open the door to new levels of federal overreach that would have a drastic impact on the agriculture, construction industries, and other industries. The Regulatory Integrity Protection Act requires the withdrawal of the rule and would require the Obama Administration to consult state and local governments, along with industries that will be affected before drafting a new rule.

House Bill Would Provide Waiver For E15 Gasoline: Representative Adrian Smith (R-NE) on April 13, 2015, introduced legislation that would extend a waiver from the Renewable Fuel Standard (RFS) for gasoline containing 15 percent ethanol (E15). The bill (H.R. 1736) would amend the CAA to allow the use of E15 during summer months. EPA regulations currently inhibit E15 fuel sales during the summer months. E10 fuel received a waiver in 1990, and Smith's bill would extend this waiver to also include E15.

Improving Coal Combustion Residuals Regulation Act of 2015 Introduced In House: Representative David McKinley (R-WV) on April 13, 2015, introduced legislation to alter EPA's new rule regulating CCRs. The Improving Coal Combustion Residuals Regulation Act of 2015 (H.R. 1734) closely parallels a draft bill passed by a House Energy and Commerce Subcommittee in March. governing coal combustion waste disposal. The bill would allow states to develop their own CCR programs and establish minimum standards for those programs.

Senate And House Bills Seek To Curb Effects Of Stormwater Pollution: Two Democrats have introduced legislation aimed at stanching the flow of polluted stormwater. Senator Tom Udall (D-NM) on April 14, 2015, introduced the Innovative Stormwater Infrastructure Act of 2015 and Representative Donna Edwards (D-MD) introduced a companion bill in the House (H.R. 1775) on the same day. The bills would establish EPA centers of excellence for "innovative stormwater infrastructure." The centers would conduct research, provide technical assistance and job training, and make grants to implement technologies that help reduce or clean stormwater runoff.

Bill Alters How VA Provides For Veterans Exposed To Chemicals: Lawmakers in the House and Senate on April 14, 2015, introduced companion legislation to centralize how the Department of Veterans Affairs (VA) provides services to ex-service members and their families affected by health problems that could be the result of exposure to harmful chemicals. The Toxic Exposure Research Act (S. 901) was sponsored by Senator Jerry Moran (R-KS) and is intended to "change how Veterans Affairs manages research and provides care for veterans and their families suffering from the impacts of toxic chemicals linked to a veteran's time in the military," stated Moran. In the House, Representatives Dan Benishek (R-MI) and Mike Honda (D-CA) introduced a companion bill (H.R. 1759).

Tank Car Safety And Security Act Of 2015 Introduced In House: On April 15, 2015, Representative Donald Payne, Jr. (D-NJ) introduced the Tank Car Safety and Security Act of 2015 (H.R. 1789) legislation intended to strengthen the safety standards for DOT-111 tank cars that transport flammable liquids. The bill would require Department of Transportation (DOT) to revise federal standards for DOT-111 tank cars used to move flammable liquids. The legislation requires all cars to include an outer steel jacket as well as thermal protection, full-height head shields, and high-flow capacity pressure relief valves. Tank cars built after October 2011 must be updated to include high-flow capacity pressure relief valves and design modifications to prevent bottom outlets from opening in the event of an accident. The legislation would further require DOT to submit to Congress a plan to phase out older-model DOT-111 tank cars that are not retrofitted to meet the new safety standards. Finally, the bill would direct the Transportation Security Administration (TSA) Administrator to issue a set of procedures to ensure that every rail car containing crude oil will not be left unattended when transferred from one carrier to the next.

MISCELLANEOUS

Supreme Court Confirms Agency Interpretative Rules Do Not Require APA Notice And Comment Rulemaking: In a March 9, 2015, decision in Perez v. Mortgage Bankers Ass'n., the U.S. Supreme Court unanimously held that an interpretative rule issued by an administrative agency does not require notice and opportunity for comment, even if the interpretative rule construes a substantive (or legislative) rule previously issued by the agency and even if the interpretative rule alters a prior interpretation of the same rule. In the Perez decision, the Court explicitly overruled Paralyzed Veterans of America v. D.C. Arena, L.P., a 1997 decision by the U.S. Court of Appeals for the D.C. Circuit that held that notice and comment is required whenever an agency issues an interpretative rule altering a prior interpretation of a legislative rule, based on the premise that adopting a new interpretation of a rule is tantamount to an amendment of the underlying rule. Pursuant to Administrative Procedure Act (APA) Section 553(b)(A), notice and comment rulemaking procedures do not apply to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." In Perez, the Supreme Court concluded that "[t]he text of the APA answers the question presented." Finding the APA exemption for interpretative rules to be "categorical," the Court held that "it is fatal to the rule announced in Paralyzed Veterans." Since an agency can adopt an initial interpretative rule without notice and comment, it is "also not required to use those procedures when it amends or repeals that interpretive rule." The actual legal effect of this new ruling is likely to be limited in scope, because the Paralyzed Veterans decision only required an agency to use notice and comment procedures in those instances where the agency was both interpreting an underlying substantive regulation and revising or contradicting a prior interpretation of that regulation. Although the APA does not define "interpretative rules," the general consensus is that such rules only are intended to announce how the agency intends to construe a particular statute or regulation. Interpretative rules are not supposed to have any independent force of law. While an agency must generally follow its own interpretation of a statute or regulation unless and until it has been revised, no party outside of the agency is required to conform to that same interpretation. This contrasts to a legislative rule, which binds parties other than the agency as well, and which can only be lawfully adopted after providing notice and opportunity for comment. A "statement of policy" has even less formality than an interpretative rule, because even the agency that issued a policy statement is free to deviate from that policy without formally withdrawing or revising it. While the Supreme Court was unanimous in setting aside the Paralyzed Veterans precedent, the Court did not clearly resolve the question of how much judicial deference should be afforded to such agency interpretations. It can be argued that an interpretation adopted by an agency without notice and comment should be afforded a lesser degree of judicial deference, but there has been a general trend in recent years toward affording judicial deference to agency interpretations in situations where an underlying statute or regulation is ambiguous. In three concurring opinions, several conservative members of the Court (Scalia, Thomas, and Alito) signaled that they are willing to revisit the 1945 Supreme Court decision in Bowles v. Seminole Rock & Sand Co., a case holding that reviewing courts should generally defer to the agency's interpretation when construing an ambiguous regulation. Scalia's concurring opinion goes even further, indicating that he would like to revisit the general rule announced in the seminal 1984 precedent Chevron v. NRDC, which affords substantial judicial deference to an administrative agency in construing ambiguous statutory provisions. Unlike an administrative agency's interpretation of an ambiguous regulation, however, ambiguous statutory provisions will typically be construed in the context of promulgation of a substantive or legislative rule, and this type of exercise means that the agency's statutory construction can only be adopted after notice and comment. On balance, it is possible that the Perez decision could encourage administrative agencies to issue new interpretative rules or even policy statements in lieu of using more elaborate notice and comment rulemaking procedures. Such an approach could be particularly tempting where an agency anticipates that a reviewing court is likely to give deference to its interpretation. After all, the principle that the public is not bound by an interpretative rule or policy statement will provide little solace if regulated parties must effectively presume that the agency's announced construction is correct. This risk is mitigated somewhat by language in the majority opinion that makes it clear that a newly adopted agency interpretation may require greater substantive justification and be entitled to less judicial deference when it conflicts with a prior interpretation. Moreover, it is possible that the Perez decision could ultimately undermine Seminole Rock, a case that has encouraged reviewing courts to give administrative agencies a high degree of discretion when interpreting ambiguous provisions in their own rules. When the agency is free to resolve clearly such ambiguities through amendments adopted through notice and comment rulemaking, there may be less justification for resolving the same ambiguities through non-binding interpretations.

DOI Issues Federal Fracking Rules: Following what it called "a robust and transparent public process that included more than 1.5 million public comments," on March 26, 2015, DOI released final regulations applicable to hydraulic fracturing -- or fracking -- on public and American Indian lands. 80 Fed. Reg. 16127. The regulations were immediately challenged in court by the American Petroleum Institute, the Independent Petroleum Association of America, and the Western Energy Alliance. Other suits are certain to follow; the State of Wyoming filed suit, for example, on March 26, 2015, in federal court. Lawmakers in Congress opposed to the rules are also introducing legislation to block them. The regulation is the federal government's most comprehensive effort to date toward regulating the technology that is at the heart of the oil and gas boom in the U.S., and to try to address concerns associated with fracking. The rules fall short, however, of satisfying environmentalists' demands for greater oversight -- if not outright prohibition -- of fracking. Moreover, because the rules apply only to fracking on land owned by the federal government or Native American tribal governments, they will not end the current patchwork of state laws and local ordinances governing fracking in oil rich states. Despite the limited scope of the rules, however, critics nonetheless declaimed them as overreach. DOI claims the "commonsense standards" will improve safety and help protect groundwater. The rule includes a process so that states and tribes may request variances from provisions for which they have an equal or more protective regulation in place. This should avoid duplication while enabling the development of more protective standards by state and tribal governments. DOI states: "This updated and strengthened rule provides a framework of safeguards and disclosure protocols that will allow for the continued responsible development of our federal oil and gas resources." The rule includes provisions for ensuring the protection of groundwater supplies by requiring a validation of well integrity and strong cement barriers between the wellbore and water zones through which the wellbore passes. It also attempts to increase transparency by requiring companies to disclose publicly the chemicals used in hydraulic fracturing to the Bureau of Land Management through the website FracFocus. Higher standards for interim storage of recovered waste fluids from hydraulic fracturing are also included in the rule, as are measures to lower the risk of cross-well contamination with chemicals and fluids used in fracking. The regulations take effect on June 24, 2015.

CSB Chairman Resigns: For years, the U.S. CSB was a little known independent federal agency with modest funding and a specific mission that skirted the radar screens of most lawmakers and the public. Created by the CAA Amendments of 1990, the CSB lacked the requisite funding to become operational until 1998. Its principal role -- to investigate accidents at chemical and petroleum facilities -- seemed apolitical. Since June 2010, however, the CSB increasingly has become a target of Congressional ire and a seeming embarrassment to the White House, largely the result of allegations of mismanagement by the current CSB Chairman. Succumbing to intense political pressure, President Obama on March 25, 2015, asked that CSB Chairman Rafael Moure-Eraso resign, and Moure-Eraso did so the following day. Moure-Eraso became a touchstone of controversy. He was subjected to blistering condemnation from House members during a March 4, 2015, hearing of the House Committee on Oversight and Government Reform. Lawmakers from both sides of the aisle called for Moure-Eraso's immediate resignation amid allegations of dysfunctional leadership, abuse of authority, unilateral cancellation of ongoing investigations, a poisoned work environment, alleged reprisals against whistle blowers, staff attrition, use of personal e-mails, and other management system failures.

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.

 
THE ACTA GROUP
Beijing, China | Manchester, U.K. | Washington, D.C.
 
Contact | Twitter | Legal Disclosures | Privacy
©2018 The Acta Group All Rights Reserved.