Federal Development Update for January 2019


Forecast For U.S. Federal And International Chemical Regulatory Policy 2019: Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate The Acta Group (Acta®) are pleased to offer you our Forecast 2019. In this richly detailed document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and provide our best informed judgment as to the shape of key developments we are likely to see in 2019. We offer you our very best wishes for good health and happiness in the New Year, and continued commercial success in your business endeavors.

WEBINAR -- Chemical Regulation After The Mid-Terms: What We Can Expect To See In 2019, January 23, 2019, 1:00 p.m. - 2:00 p.m. EST: B&C and Bloomberg BNA are pleased to present “Chemical Regulation After the Mid-Terms: What We Can Expect to See in 2019,” the fifth and final webinar in the complimentary 2018 Chemical Policy Summit Series. The mid-term elections fundamentally changed the balance of power on Capitol Hill, and the result will have a significant impact on chemical regulation and environmental matters generally. Join speakers Alexandra Dapolito Dunn, Nominee for Assistant Administrator, U.S. Environmental Protection Agency (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) (Confirmed, Pending Government Operating Status); Beau Greenwood, Executive Vice President, Government Affairs, CropLife America; Lynn L. Bergeson, Managing Partner, B&C; and James V. Aidala, Senior Government Affairs Consultant, B&C, for a timely, focused, and riveting discussion.

TSCA/FIFRA/TRI

EPA Proposes Joint Stipulation In Ellis Case Requiring EPA To Issue ESA Effects Determinations For Two Neonicotinoid Pesticides: On December 12, 2018, EPA announced a proposed joint stipulation and proposed stipulated notice of dismissal for Ellis v. Keigwin, No. 3:13-CV-1266 (N.D. Cal). 83 Fed. Reg. 63865. The Federal Register notice states that the parties are “proposing to reach a settlement in the form of a joint stipulation” that would, among other provisions “set a June 30, 2022, deadline for EPA to complete ESA [Endangered Species Act] effects determination for EPA’s registration reviews of clothianidin and thiamethoxam and, as appropriate, request initiation of any ESA consultations with FWS [U.S. Fish and Wildlife Service] that EPA may determine to be necessary as a result of those effects determinations.” EPA would “also agree to initiate informal consultation” with the FWS prior to completing its effects determinations. In addition, defendant-intervenors Syngenta, Bayer, and Valent (the registrants of products containing clothianidin and thiamethoxam) have agreed to request that EPA voluntarily cancel the registrations under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 6(b)(1) for 12 specific products that contain either clothianidin or thiamethoxam. EPA requested comments on both the proposed joint stipulation and the stipulated notice of dismissal. Comments were due by January 11, 2019. More information is available in our blog.

Ninth Circuit Issues Order Partially Granting EPA’s Request For Remand Of Certain Provisions Of Risk Evaluation Final Rule: On December 18, 2018, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued an order granting in part respondent EPA’s motion for partial voluntary remand of certain provisions of its final rule on Procedures for Chemicals Risk Evaluation under the Toxic Substances Control Act (TSCA). Specifically, EPA’s motion for partial voluntary remand, filed August 6, 2018, sought remand with vacatur for 40 C.F.R. Section 702.31(d) (Penalty Provision) and remand without vacatur for 40 C.F.R. Sections 702.37(b)(4) (Relevancy Provision) and 702.37(b)(6) (Consistency Provision). The Ninth Circuit granted EPA’s motion to remand and to vacate the Penalty Provision, but referred EPA’s motion to remand without vacatur for the Relevancy and Consistency Provisions. The Penalty Provision states that “[s]ubmission to EPA of inaccurate, incomplete, or misleading information pursuant to a risk evaluation … is a prohibited act … subject to penalties.” More information is available in our blog item.

EPA Denies TSCA Section 21 Petition Seeking Increased Asbestos Reporting: On December 21, 2018, EPA denied a petition filed under TSCA Section 21 requesting that EPA initiate rulemaking to amend the TSCA Chemical Data Reporting (CDR) rule to increase reporting of asbestos. EPA denied the September 27, 2018, petition on the grounds that the petitioners, the Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, Environmental Health Strategy Center, and Safer Chemicals Healthy Families, did not demonstrate that it is necessary to amend the CDR rule. EPA posted a pre-publication version of the Federal Register notice. Due to the government shutdown, EPA has not yet published its response in the Federal Register. More information is available in our memorandum.

Registrants Face PRIA And Shutdown Issues: Although the Office of Pesticide Programs (OPP) was able to operate through December 28, 2018, despite the current partial federal government shutdown, EPA has joined other parts of the federal service and shut down. Meanwhile, the Pesticide Registration Improvement Extension Act (PRIA 3) sunset on December 21, 2018, in the absence of a Continuing Resolution (CR) and the onset of the shutdown. According to FIFRA Section 33(m)(2)(B) [7 USC § 136w-8(m)(2)(B)], the fee for any pesticide application that is subject to a service fee and submitted after December 21, 2018, will be reduced by 70 percent below the fee in effect on September 30, 2017, but no corresponding review period will be assigned. Any applications submitted now thus will not have a required EPA review period and thus will likely be the lowest priority for EPA review when the shutdown ends. For this reason, despite the lower fees, registrants should not submit applications until PRIA is enacted and defined review periods once again are established. The enactment of some version of PRIA is expected soon, especially given the consequences of the current situation for EPA and government functions generally. Most likely any kind of authorization for funding government operations, such as a CR for a limited time period or for Fiscal Year (FY) 2019, is expected to include at least a simple reauthorization of PRIA 3 for the duration of the CR. This would also mean the new Congress will have to act sometime in the next session to reauthorize PRIA either to continue PRIA 3 beyond a new CR time period or approve amendments such as those considered as PRIA 4 during the 115th Congress. Given the difficulty of Congress in reaching agreement on appropriations legislation, it is possible that PRIA reauthorizations continue to be included as part of CRs for an indefinite time period. This uncertainty about the status of PRIA may also impact generally the program’s ability to plan and schedule review of registration applications. Regardless of when PRIA is enacted, however, the shutdown will prevent EPA action on newly submitted applications. OPP states on its website:

  • Applications received on or prior to December 21, 2018, will be reviewed under the decision time frames specified in PRIA 3;
     
  • Applications received after December 21, 2018, will be subject to the provisions of FIFRA Section 33(m)(2)(B); and
     
  • Applications received after December 28, 2018, will not be considered as received or processed until the shutdown ends.
     

Registrants should monitor developments closely.

RCRA/CERCLA/CWA/CAA/SDWA/PHMSA 

EPA Schedules Public Hearing On Revised Definition Of Waters Of The United States: On December 28, 2018, EPA announced the scheduling of a public meeting in Kansas City, Kansas, on January 23, 2019,to discuss the revised definition of waters of the United States (WOTUS). 83 Fed. Reg. 67174. Please consult the Federal Register for details.

PHMSA Issues Notice Of Enforcement Policy Regarding International Standards: On December 18, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Notice of Enforcement Policy regarding compliance with international standards. In the policy, PHMSA states that it understands that many offerors and carriers of hazardous materials in international transport will soon be adhering to requirements in the internationally-adopted 2019-2020 International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and Amendment 39-18 of the International Maritime Organization, International Maritime Dangerous Goods Code (IMDG Code). In the notice, PHMSA states that it will not take enforcement action against any offereror or carrier using these standards when transporting hazardous materials by certain modes. The notice is available online.

EPA Proposes To Revise “Necessary And Appropriate” Standard For MATS Rule: EPA on December 27, 2018, announced that it is proposing a revision to its response to the U.S. Supreme Court’s decision in Michigan v. EPA that held that EPA erred by not considering cost in its determination that regulation under Section 112 of the Clean Air Act (CAA) of hazardous air pollutant (HAP) emissions from coal- and oil-fired electric utility steam generating units (EGU) is appropriate and necessary. The rule, known as the Mercury and Air Toxics Standard (MATS), is too costly to justify, EPA states, and thus is no longer “appropriate and necessary.” EPA stated it would count only the direct costs and benefits of reducing mercury and other toxic air pollutants under the MATS. In so doing, it is abandoning the approach of considering the rule’s “co-benefits,” such as reductions in particulate matter that are also achieved when reducing mercury emissions. EPA claims the direct costs to control mercury emissions at power plants greatly outweighed the benefits associated with reducing those pollutants. Despite this finding, EPA is not proposing to revise or remove the MATS requirements. EPA’s rationale for retaining the standards is that power plants have already spent money to put controls in place and are recovering those costs from their ratepayers. EPA is soliciting comment, however, on whether it has the authority or obligation to rescind the rule. The proposed rule also states that EPA has concluded its residual risk and technology review (RTR) of the MATS rule and found no new developments in HAP emission controls to achieve further cost-effective emissions reductions. Therefore, based on the results of these analyses and reviews, EPA is proposing that no revisions to MATS are warranted. The comment period will close 60 days after the rule is published in the Federal Register. A copy of the pre-publication version of the rule is available here.

FDA

FDA’s Investigation Yields Potential Sources Of Contaminated Romaine Lettuce: On December 13, 2018, the U.S. Food and Drug Administration (FDA) announced that its broad traceback investigation launched in November 2018, to determine the source of the E. coli O157:H7 outbreak, traced the source of the contamination to at least one specific farm that FDA identified as a positive sample result. The positive sample result for the outbreak strain was found in the sediment of a local irrigation reservoir used by a single farm. FDA stated that it will be sending investigators back to this farm for further sampling but noted that, although this is an important piece of information, the finding on this farm “doesn’t explain all illnesses and [FDA’s] traceback investigation will continue as [it] narrow[s] down what commonalities this farm may have with other farms that are part of [its] investigation.” The sample was analyzed by the Centers for Disease Control and Prevention (CDC) and determined to match the outbreak strain of E. coli O157:H7 through Whole Genome Sequencing (WGS) analysis, the most precise DNA analysis available to FDA. The investigation further yielded records from five restaurants in four different states that identified 11 different distributors, nine different growers, and eight different farms as potential sources of contaminated romaine lettuce but, FDA stated, no single establishment is in common across the investigated supply chains and this indicates that “the outbreak may not be explained by a single farm, grower, harvester, or distributor.” Based on these and other new findings, FDA stated it is updating its recommendations for the romaine lettuce industry and consumers. Primarily, FDA is requesting for producers and distributors voluntarily to label romaine lettuce entering the market with a harvest location and a harvest date or label as being hydroponically- or greenhouse-grown (hydroponically- and greenhouse-grown romaine did not appear to be related to the current outbreak). FDA stated that this will improve its ability to provide more targeted information to consumers in the event of a future outbreak of illness. FDA also stated that in early 2019, it will be launching a comprehensive effort to continue to use advances in technology to improve its ability to track and trace products through the supply chain. On January 9, 2019, FDA issued an update stating that the outbreak appears to be over. FDA will continue its investigation, however, and reiterated its recommendation for romaine lettuce to be labeled with a harvest location and a harvest date or to be labeled as being hydroponically- or greenhouse-grown.

FDA Issues Uniform Compliance Date, Technical Amendments On Nutrition And Supplement Facts Labeling Rules: On December 20, 2018, FDA announced in a final rule that January 1, 2022, will be the uniform compliance date for final food labeling regulations that are issued in calendar years 2019 and 2020. 83 Fed. Reg. 65294. All food products subject to the January 1, 2022, uniform compliance date must comply with the appropriate labeling regulations when initially introduced into interstate commerce on or after January 1, 2022; but this action does not change existing requirements for compliance dates contained in final rules published before January 1, 2019. FDA is accepting comments on this uniform compliance date until February 19, 2019.

FDA Publishes User Guide For Participants In the Accredited Third-Party Certification Program:On December 20, 2018, FDA published an Electronic User Guide for its Accredited Third-Party Certification Program Portal. FDA states that the user guide is designed to help entities apply for recognition as Accreditation Bodies (AB) through the portal. The user guide will also help recognized ABs manage their accounts, which includes submitting an application, managing its profile, adding and managing Certification Bodies (CB), and communicating with FDA. More information about the Accredited Third-Party Certification Program is available at FDA.gov.

FDA Amends Nutrition Facts And Supplement Facts Labels: On December 21, 2018, FDA announced it was amending the regulations pertaining to Nutrition Facts and Supplement Facts labels, specifically certain regulations in 21 C.F.R. Part 101 -- Food Labeling. 83 Fed. Reg. 65493. The Federal Register notice states that the amendments, which are “ministerial or editorial in nature”: correct errors that were made in labeling examples; restore incorrect deletions; correct the edition of a reference cited in the rule; and correct cross-references to other regulations. The revisions became effective on December 21, 2018.

FDA Issues Statement On Shutdown Emergency Issues: Soon after the government shutdown started, on December 22, 2018, FDA issued a notice on its website titled FDA 2019 Lapse in Funding Information.The notice states that “agency operations continue to the extent permitted by law, such as activities necessary to address imminent threats to the safety of human life and activities funded by carryover user fee funds.” Further, during the “lapse period,” FDA will be continuing vital activities, to the extent permitted by the law, that are critical to ensuring public health and safety, including: (1) maintaining core functions to handle and respond to emergencies -- such as monitoring for and quickly responding to outbreaks related to foodborne illness and the flu; (2) supporting high-risk food and medical product recalls when products endanger consumers and patients; (3) pursuing civil investigations when it believes public health is imminently at risk; and (4) pursuing criminal investigations, screening the food and medical products that are imported to the U.S. to protect consumers and patients from harmful products, and addressing other critical public health issues that involve imminent threats to the safety of human life. Mission critical surveillance for significant safety concerns with medical devices and other medical products will also continue. FDA also states that it will not have legal authority to accept user fees assessed for FY 2019, however, until an FY 2019 appropriation or CR for FDA is enacted; therefore, FDA will not be able to accept any regulatory submissions for FY 2019 that require a fee payment and that are submitted during the lapse period.

NANOTECHNOLOGY

Transcript Available For NIOSH Webinar On Revised Draft CIB For Silver Nanomaterials: The National Institute for Occupational Safety and Health (NIOSH) has posted the transcript for the October 30, 2018, webinar on its revised draft document entitled Current Intelligence Bulletin: Health Effects of Occupational Exposure to Silver Nanomaterials. As reported in our September 19, 2018, blog item, the revised draft Current Intelligence Bulletin (CIB) provides an updated scientific literature review of information pertaining to occupational exposure to silver nanomaterials. Based on an assessment of these data, NIOSH developed a recommended exposure limit (REL) for silver nanoparticles (<100 nanometers (nm) primary particle size) of 0.9 micrograms per cubic meter (μg/m3) as an airborne respirable eight-hour time-weighted average (TWA) concentration.

ISO Publishes Specification For Developing Representative Test Materials Consisting Of Nano-Objects In Dry Powder Form: In December 2018, the International Standardization Organization (ISO) published standard SO/TS 16195:2018, “Nanotechnologies -- Specification for developing representative test materials consisting of nano-objects in dry powder form.” The standard specifies development of representative test materials consisting of nano-objects in dry powder form to enable test method development and improve comparability of data for nanotechnology applications. More information is available in our December 17, 2018, blog item.

Researchers Survey Nanosafety Research In The European Union (EU) And U.S.: The December 2018 issue of the Journal of Nanoparticle Research includes an article entitled “A survey on the state of nanosafety research in the European Union and the United States.” According to the abstract, the authors surveyed researchers in the field of environmental safety and health of nanomaterials between September 2017 and January 2018 to obtain a snapshot on the state of investigations. The abstract states that the results can help guide research strategies and funding schemes related to nanosafety of nanoparticles. The survey will be repeated every few years to follow developments in the field.

NIA Will Hold Webinar On Commercialization Of Nanomaterials: The Nanotechnology Industries Association (NIA) will hold a webinar on January 24, 2019, on “Nano in Business: Commercialization of nanomaterials.” This is the first webinar in NIA’s “Nano in Business” series, which is dedicated to the roadmap to commercial success for nanomaterials. The webinar will focus on NIA members that produce nanomaterials, with support from NIA on the regulatory framework in which they must perform. This webinar is open to all interested participants, including non-members, and will be recorded for public access. Registration is now open. B&C is a proud member of NIA.

EUON Looks For Topic Suggestions For Future Studies On Nanomaterials: The EU Observatory for Nanomaterials (EUON) conducts up to three studies annually. The studies are intended to address knowledge gaps relating to nanomaterials that are of interest to the general public and the research community. EUON announced on January 14, 2019, that it is now looking for topic suggestions that could be addressed in its upcoming studies. EUON is looking for studies that address:

  • Questions relating to the health and safety of nanomaterials, including hazard and risk assessment, exposure to nanomaterials, or worker safety and protection;
     
  • Specific issues surrounding the uses of nanomaterials by consumers or workers; or
     
  • Markets for nanomaterials, focusing on EU markets.
     

Proposals are due January 25, 2019.

BIOBASED/RENEWABLE PRODUCTS

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

LEGISLATIVE

Senate Approves Nominations Of Three Key Posts: In the last hours of the 115th Congress, the Senate on January 2, 2019, approved the nominations of three individuals to serve in key environmental posts.

  • Alexandra Dapolito Dunn -- EPA Toxics Office: The Senate approved the nomination of Alexandra Dunn to serve as the Assistant Administrator of EPA’s OCSPP. Ms. Dunn had been serving as the administrator for EPA Region 1. Ms. Dunn previously was executive director and general counsel for the Environmental Council of the States (ECOS). Prior to joining ECOS, Ms. Dunn served as executive director and general counsel for the Association of Clean Water Administrators. Ms. Dunn also has extensive experience in environmental education, having served as dean of Environmental Law Programs at the Elisabeth Haub School of Law at Pace University. In addition, Ms. Dunn has taught at the Columbus School of Law, Catholic University of America, and, most recently, as an adjunct associate professor of law at the American University’s Washington College of Law. Ms. Dunn received a B.A. in political science from James Madison University and a J.D. from the Columbus School of Law, Catholic University of America.
     
  • Mary Neumayr -- CEQ: The Senate also approved the nomination of Mary Neumayr to head the White House’s Council on Environmental Quality (CEQ). Ms. Neumayr currently serves as chief of staff for the CEQ. Prior to joining CEQ in March of 2017, she served in a variety of positions with the Committee on Energy and Commerce in the U.S. House of Representatives, including deputy chief counsel, energy and environment in 2017; senior energy counsel from 2011 to 2017; and counsel from 2009 to 2010. Ms. Neumayr also served as deputy counsel for environment and nuclear programs at the U.S. Department of Energy (DOE) from 2006 to 2009, and counsel to the assistant attorney general for the environment and natural resources division at the U.S. Department of Justice (DOJ) from 2003 to 2006. Prior to her government service, Ms. Neumayr was in private legal practice from 1989 to 2003. She received her B.A. from Thomas Aquinas College and her J.D. from the University of California, Hastings College of the Law.
     
  • Kelvin Droegemeier -- OSTP: The Senate also approved Kelvin Droegemeier to serve as the director of the White House Office of Science and Technology Policy (OSTP). A meteorologist from the University of Oklahoma, Mr. Droegemeier previously served as Oklahoma Governor Mary Fallin’s secretary of science and technology. He was also previously on the National Science Board for 12 years during the George W. Bush and Barack Obama Administrations.
     

Senate Approves Head Of EPA International Affairs Office: On January 3, 2019, the Senate approved William McIntosh as the Assistant Administrator for EPA’s Office of International and Tribal Affairs. Mr. McIntosh served as the governor of Michigan’s environmental advisor, where he was involved in comprehensive environmental statutory and regulatory reform. He also was appointed as the deputy director of the Michigan Department of Environmental Quality. Mr. McIntosh also worked for the Ford Motor Company, where he was responsible for environmental permitting, compliance, and environmental metrics improvements at Ford manufacturing facilities.

House Establishes Select Committee On Climate Change: The House on January 3, 2019, voted to reconstitute a Select Committee on the Climate Crisis. The previous Select Committee was removed in 2010 when Republicans gained control of the House. Florida Democrat Kathy Castor will chair the panel, which will have nine Democrats and six Republicans. The remaining members will be named later. The House approved the Committee in a vote on a rules package (H. Res. 6) that determines how the House will bring bills to the floor for votes in the 116th Congress. The Committee lacks legislative jurisdiction and the authority to take legislative action on any bill or resolution, nor can the Committee issue subpoenas. The sole authority of the Committee is investigative. According to the rules package, the Committee’s purpose is “to investigate, study, make findings, and develop recommendations on policies, strategies, and innovations to achieve substantial and permanent reductions in pollution and other activities that contribute to the climate crisis which will honor our responsibility to be good stewards of the planet for future generations.” The Committee also may hold hearings in connection with its investigative functions.

House Passes Extension To CFATS Program: The House on January 8, 2019, passed legislation to extend for two years the Department of Homeland Security’s (DHS) Chemical Facilities Anti-Terrorism Standards (CFATS). The program is set to expire this month. CFATS is the U.S.’ first regulatory program focused on security at high-risk chemical facilities. DHS administers the CFATS program by working with facilities to ensure they have security measures in place to reduce the risks associated with certain hazardous chemicals, and prevent them from being exploited in a terrorist attack. Under CFATS, a facility that possesses any of 300 chemicals of interest (COI) at or above specified quantities must report the chemicals to DHS, which uses the information to determine if the facility is considered high-risk and must develop a security plan. The Chemical Facility Anti-Terrorism Standards Program Extension Act (H.R. 251) was passed under a suspension of the rules by a vote of 414-3. The fate of the bill in the Senate is uncertain. Senate Homeland Security and Governmental Affairs Chair Ron Johnson (R-WI) stated that he would not support H.R. 251 or other legislation that provides for a long-term reauthorization of CFATS without “making sensible reforms” to the program. “Despite the program’s regulatory burden of $8.5 billion over 10 years, it is far from clear that CFATS reduces the risk of a terrorist attack, and DHS does not meaningfully measure its ability to do so,” Mr. Johnson stated.

President Trump Formally Nominates Wheeler As EPA Administrator: Following through on a commitment he made in November 2018, President Trump on January 9, 2019, formally nominated Andrew Wheeler to serve as the Administrator of EPA. Mr. Wheeler has served as EPA’s Acting Administrator since the resignation of Scott Pruitt in July 2018. Mr. Wheeler previously worked in the law firm of Faegre Baker Daniels and was chief counsel to the Senate’s Environment and Public Works (EPW) Committee. The EPW Committee has scheduled Mr. Wheeler’s confirmation hearing for January 16, 2019. Details on the hearing are available online.

Bill Seeks To Require Additional Analysis Of Unfunded Mandates: Representative Virginia Foxx (R-NC) on January 9, 2019, introduced legislation intended to increase the transparency of the economic impact of unfunded mandates imposed by federal regulations on state and local governments. The Unfunded Mandates Information and Transparency Act (H.R. 300) would broaden requirements for analyzing costs imposed on states by significant federal rules (i.e., regulations whose economic impact is more than $100 million). The bill would amend the Unfunded Mandates Reform Act (UMRA), which requires the Congressional Budget Office (CBO) to estimate the costs of direct federal requirements. H.R. 300 would require economic analysis of regulations promulgated by independent agencies, which are currently exempt from doing so. The bill would also require federal agencies to consult with state, local, and tribal governments -- and stakeholders in the private sector -- on the potential costs of regulations. In addition, the bill broadens the definition of “direct costs” that are subject to economic analysis to include “foregone profits, costs passed on to consumers, and behavioral changes.” This change to the definition is significant, as it seems to require retrospective analysis of existing regulations. Ms. Foxx had introduced the bill in the 115th Congress, where it passed the House. With Democrats in the majority in the House, however, it will be difficult for the legislation to advance.

Sweeping Climate Change Bill Introduced In The House: On January 9, 2019, Representatives Ted W. Lieu (D-CA) and Jimmy Gomez (D-CA), introduced a sweeping climate change bill. The Climate Solutions Act of 2019 would require that 100 percent of electricity sold in the U.S. be generated from renewable sources by 2035. It will also aggressively target greenhouse gases (GHG) by requiring such emissions to be 80 percent below 1990 levels by 2050. It also creates a national energy efficiency standard. Representative Lieu has introduced versions of the bill in both the 114th and 115th Congress. This version of the bill is the most aggressive yet.

Senators Reintroduce REINS Act: On January 10, 2019, Senators Rand Paul (R-KY), Chuck Grassley (R-IA), Joni Ernst (R-IA), Todd Young (R-IN), Ted Cruz (R-TX), and 29 other cosponsors, reintroduced the Regulations from the Executive in Need of Scrutiny (REINS) Act (S. 21). The bill is intended to increase accountability and transparency in the federal regulatory process. The REINS Act would require an up or down vote by Congress on federal regulations that impose an estimated annual economic impact of $100 million or more, so-called “major rules.” Congress would be authorized to approve or disapprove of major rules through joint resolutions. The bill does not stop there, however, as it also would vest Congress with the authority to disapprove of non-major rules through joint resolutions. In January 2017, the House passed its version of the REINS Act by a largely party line vote of 237-187.

House Bill Would Repeal CAFE Standards: On January 10, 2019, Representative Roger Williams (R-TX) introduced a bill (H.R. 431) that would repeal the Corporate Average Fuel Economy (CAFE) standards. CAFE standards are set by the National Highway Transportation Safety Administration (NHTSA) and EPA. President Trump last year proposed to freeze CAFE standards at the 2020 level of 37 miles per gallon, down significantly from the agreement to scale up CAFE standards to an estimated 46.8 mpg by 2025 model year vehicles. The current standards have a notable advantage, as they align the federal standards with those in effect in California, which has the authority under the CAA to set its own low-emission vehicle standards. This alignment allows auto makers and suppliers to make investments with a significant degree of certainty. That clarity is eroding away now that automotive stakeholders are not sure whether or not the 2010 CAFE standards will remain in effect. Thus far, 13 other states are moving forward with their own low-emission vehicle standards. On August 24, 2018, NHTSA and EPA proposed a rule to adjust the CAFE and GHG emissions standards for model years (MY) 2021 through 2026 light-duty vehicles. 83 Fed. Reg. 42986. EPA established national GHG emissions standards under the CAA that extend through 2025, and NHTSA established inaugural CAFE standards for MY 2022-2025 vehicles under the Energy Policy and Conservation Act, as amended by the Energy Independence and Security Act (EISA). The most recent semi-annual regulatory agenda for NHTSA indicates an April 2020 promulgation date for the final rule.

Bills Seek To Require Chemical Disclosures And Increased Regulation For Fracking Operations: Representative Darren Soto (D-FL) on January 10, 2019, introduced a bill (H.R. 436) seeking to reestablish standards that require disclosure of certain chemicals used in hydraulic fracturing (fracking) operations. Hydraulic fracturing is generally regulated under the Safe Drinking Water Act as a form of “underground injection.” In 2005, however, Congress amended the Energy Policy Act to redefine “underground injection” to exclude “fluids or propping agents (other than diesel fuels)” used during fracking operations related to oil, gas, or geothermal production. The bill would seek to delete that exemption and also impose additional waste management standards on fracking operations. Mr. Soto also introduced a second bill (H.R. 484) on January 10, 2019, that would amend the Mineral Leasing Act to authorize the Interior Department to regulate fracking operations on federal lands. Mr. Soto was recently appointed to serve on the House Energy and Commerce Committee, which has jurisdiction over fracking operations.

MISCELLANEOUS

ECOS Names New Executive Director: On December 17, 2018, ECOS named Donald Welsh as its new Executive Director. Mr. Welsh served as the Regional Administrator for EPA Region 3 under the Administration of President George W. Bush and also was the Deputy Secretary of the Pennsylvania Department of Environmental Protection (PADEP). Most recently, Mr. Welsh was chair of the Citizens’ Advisory Council to PADEP.

CDPR Issues Notice 2018-26 For Changes To Notice Of Decision And Public Report Documentation: On December 28, 2018, the California Department of Pesticide Regulation (DPR) issued Notice 2018-26 changing its Notice of Decision (NOD) and public report documentation for proposed registration decisions to ensure continued compliance with its certified regulatory program obligations under the California Environmental Quality Act (CEQA). The new changes to the NODs and public report documentation will be effective May 1, 2019. These changes are a result of a 2014 lawsuit brought by Pesticide Action Network North America (PANNA), et al. challenging DPR’s acceptance of label amendments for two previously registered dinotefuran pesticide products. The First District Court of Appeal held that DPR’s NODs and public reports supporting the dinoteferan registration actions were deficient because DPR could not demonstrate that it properly considered certain factors specified in CEQA. In essence, the court concluded that certain CEQA requirements that DPR construed as procedural in nature were actually substantive standards that DPR must meet and adequately document in its administrative record. Specifically, the court found that DPR failed to include a checklist or other documentation with meaningful analysis explaining how DPR reached its conclusion that the approval of the proposed label changes would not cause a significant adverse impact to human health, flora, fauna, water, and air.” The court also found DPR’s discussion of alternatives and cumulative impacts inadequate. Information about that case is available in our blog item California Court of Appeal Reverses Trial Court Decision Denying PANNA’s Petition Challenging Approval by DPR of Pesticides Containing Dinotefuran. More information is available online.

Former EPA Regional Head To Run California Environmental Agency: California Governor Gavin Newsom (D) appointed on January 8, 2019, Jared Blumenfeld to run the California Environmental Protection Agency (CalEPA). If confirmed by the state Senate, Blumenfeld will run the agency that oversees regulation of air, water, pesticides, health assessments, toxic substances, and recycling. Blumenfeld was previously named EPA Regional Administrator in November 2009 and served in that capacity through May 2016.

NYDEC Delays For Three Months Enforcement Of Its Household Cleansing Product Information Disclosure Program: On January 9, 2019, the New York Department of Environmental Conservation (NYDEC) announced it was delaying its enforcement of the New York Household Cleansing Product Information Disclosure Program (Disclosure Program) to October 1, 2019. NYDEC’s announcement was published in the Environmental Notice Bulletin. As previously reported, on June 6, 2018, NYDEC released its Disclosure Program setting forth extensive requirements for manufacturers of certain consumer cleaning products to disclose information regarding the ingredients in those products. The Disclosure Program is significantly different from California’s Cleaning Product Right to Know Act of 2017 (S.B. 258), which was signed into law in October 2017 with implementation required, in part, by January 1, 2020. Despite the fact that New York’s Disclosure Program was released almost eight months after California’s S.B. 258, NYDEC intended to require the first phase of its implementation six months earlier, or by July 1, 2019. More information is available in our memorandum online.
 

This Update is provided as a complimentary service to our clients and is for informational purposes. This Update may be copied or quoted, provided proper attribution is given. The contents are not intended and cannot be considered as legal advice.

 
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