Federal Development Update for April 2020


Acta Group Launches CDR Cross-Check™ To Assist Companies In Identifying Chemical Data Reporting Requirements: The Acta Group (Acta®) announced on April 1, 2020, the launch of CDR Cross-Check™, an ingenious yet simple tool developed and offered by Acta to assist companies in preparing for the 2020 Chemical Data Reporting (CDR) required by the U.S. Environmental Protection Agency (EPA). CDR Cross-Check utilizes the most recent CDR listing information publicly available provided by EPA (currently, 2016 lists) to identify whether all or some of a company’s inventory of chemical substances are subject to CDR under the Toxic Substances Control Act (TSCA) and, if so, at what reporting threshold. CDR Cross-Check will make CDR reporting easier. Visit the CDR Cross-Check website, https://cdr-cross-check.actagroup.com/, for more information and to order a CDR Cross-Check report.

Navigating The Jurisdictional Tightrope Between Biopesticides, Biostimulants, And Related Emerging Technologies, April 29, 2020, 12:00 pm (EDT), Via Webinar: Register for the American Bar Association (ABA) webinar “Navigating the Jurisdictional Tightrope Between Biopesticides, Biostimulants, and Related Emerging Technologies” with Bergeson & Campbell P.C. (B&C®) professionals deconstructing the jurisdictional boundaries distinguishing pesticides, biopesticides, plant regulators, biostimulants, and related technologies. The webinar will focus on draft EPA guidance intended to clarify the lines between and among those products that are subject to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registration as plant regulators and those biostimulant products not subject to FIFRA registration. The webinar also will focus on new and evolving chemistry and technology issues that may blur some jurisdictional lines or potentially move products from one category to another. Lynn L. Bergeson, Managing Partner, B&C; Lisa R. Burchi, Of Counsel, B&C; and Sheryl Lindros Dolan, Senior Regulatory Consultant, B&C, will present.

Law, Climate Change, And Agriculture: Legal Tools In The Arsenal, April 22, 2020, 12:00 p.m. (EDT), Via Webinar: Register for the International Bar Association (IBA) webinar “Law, Climate Change, and Agriculture: legal tools in the arsenal” covering the role of innovative agriculture practices in combating climate change and highlighting the legal, policy, and institutional changes that will encourage innovation. Lynn L. Bergeson, Managing Partner, B&C, is Vice Chair of the Agricultural Law Section of IBA.

Christopher R. Blunck, Former Special Assistant To The Director Of EPA’s Office Of Pollution Prevention And Toxics (OPPT), Joins B&C And Acta: B&C and Acta are pleased to announce that Christopher R. Blunck has joined our firms as Of Counsel with B&C and Senior Regulatory Specialist with Acta. Over his 30-year career at EPA Mr. Blunck managed or participated in the development of hundreds of TSCA and Toxics Release Inventory (TRI) Program regulations, guidance documents, and policy papers, and his decades of involvement in the regulatory development process at EPA are an invaluable asset to clients seeking to anticipate, address, and resolve regulatory compliance matters.

TSCA/FIFRA/TRI

Lynn L. Bergeson And Christopher R. Blunck, "Expert Focus: What Are the Implications of the US EPA’s Expected Final Rule on Persistent, Bioaccumulative and Toxic Chemicals?," Chemical Watch, March 26, 2020: Persistent, bioaccumulative, and toxic(PBT) chemicals have long been recognized to behave differently in the environment and in biological systems from non-PBT substances. The U.S. Congress acknowledged this when amending TSCA in 2016 by crafting special provisions under Section 6(h) that were uniquely applicable to PBTs. Last July, EPA proposed a rule that would implement the Section, but this caused much controversy and led to comments from, among others, the retail, coatings, and aerospace sectors and non-governmental organizations (NGO). It also raised several novel legal issues relating to TSCA’s interpretation. The full article is available to download.

Materials Available From ChemCon TSCA Seminar: Materials are now available from the last conference held before the novel coronavirus put face-to-face meetings on hold. B&C was pleased to sponsor ChemCon The Americas, held March 2-6 in Philadelphia, PA, which featured valuable updates from EPA representatives and others regarding the latest TSCA developments.

Resources available now include:

  • Interview with Alexandra Dapolito Dunn, Assistant Administrator, EPA Office of Chemical Safety and Pollution Prevention (OCSPP), and Lynn L. Bergeson, Managing Partner, B&C, in which they discuss the implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) and what can be expected through 2020. The interview can be seen here.
     
  • Complimentary materials from the “Workshop on TSCA CDR-rule (Chemical Data ReportingCDR) ,”presented by Susan Sharkey, Chemical Control Division, OPPT, EPA; Mark Herwig, Senior Director, Global Chemicals Compliance and Risk Management, United Technologies Corporation; and Kathleen M. Roberts, Senior Regulatory Consultant, B&C. Download the materials here.
     
  •  Materials for purchase (€75) from “The amended TSCA and its 2020 priorities, implementation and direction for new and existing chemicals” seminar, presented by Alexandra Dapolito Dunn, Assistant Administrator, EPA; Mark Hartman, Deputy Director for Management, OPPT, OCSPP; Tala Henry, Deputy Director for Programs, OPPT, OCSPP; Richard E. Engler, Ph.D., Director of Chemistry, B&C; Lynn L. Bergeson, Managing Partner, B&C; and others. Order the materials using the order form available on the ChemCon website.
     

NGOs File Suit Against EPA For Failing To Disclose Information About New Chemical Substances: On March 18, 2020, a coalition of NGOs filed suit in the U.S. District Court for the District of Columbia against EPA, claiming that EPA fails to disclose information about new chemical substances under TSCA. According to the plaintiffs’ complaint, EPA fails to publish full and complete notices of its receipt of new chemical applications in a timely fashion and does not disclose all non-confidential information, including health and safety studies, supporting such applications. The plaintiffs state that action by the court is needed to ensure that the NGOs and their members “have timely access to information and are able to provide input on the potential risks of new chemicals and the need for protections from those risks prior to completion of EPA’s reviews.” The coalition includes the Environmental Defense Fund (EDF), Center for Environmental Health, Environmental Health Strategy Center, Natural Resources Defense Council (NRDC), and Sierra Club. More information is available in our March 23, 2020, memorandum.

EPA Seeks Nominations For TSCA SACC: EPA published a Federal Register notice on March 20, 2020, inviting the public to nominate scientific experts from a diverse range of disciplines to be considered for appointment to the TSCA Science Advisory Committee on Chemicals (SACC). 85 Fed. Reg. 16094. EPA is seeking nominations of individuals who have demonstrated high levels of expertise in scientific and/or technical fields relevant to chemical safety and risk assessment, including, but not limited to: human health and ecological risk assessment, biostatistics, epidemiology, pediatrics, physiologically based pharmacokinetics, toxicology and pathology, and the relationship of chemical exposures to women, children, and other potentially exposed or susceptible subpopulations. Any interested person or organization may nominate qualified persons to be considered for appointment to SACC. Individuals also may self-nominate. The preferred method for submitting nominations is via e-mail to Steven Knott, the SACC’s Designated Federal Officer (knott.steven@epa.gov). Nominations are due no later than April 20, 2020.

Safer Choice Program Accepting Submissions For 2020 Safer Choice Partner Of The Year Awards: EPA published a Federal Register notice on March 23, 2020, announcing that the EPA Safer Choice program is accepting submissions for its 2020 Safer Choice Partner of the Year Awards. 85 Fed. Reg. 16334. EPA states that it developed the Partner of the Year Awards to recognize the leadership contributions of Safer Choice partners and stakeholders who, over the past year, have shown achievement in the design, manufacture, selection, and use of products with safer chemicals, furthering outstanding or innovative source reduction. Interested parties who would like to be considered for this award should submit to EPA information about their accomplishments and contributions during 2019. EPA notes that there is no form associated with this year’s application. EPA will recognize award winners at a Safer Choice Partner of the Year Awards ceremony that is being planned for fall 2020. Submissions are due May 31, 2020.

EPA Will Consider Exemptions To TSCA Fees Rule For EPA-Initiated Risk Evaluations: EPA announced on March 25, 2020, that it will consider a proposed rule that would look at potential exemptions to the TSCA fees rule in response to stakeholder concerns about implementation challenges. According to EPA, it plans to initiate a new rulemaking process to consider proposing exemptions to the current rule’s self-identification requirements associated with EPA-initiated risk evaluations for manufacturers that:

  • Import the chemical substance in an article;
     
  • Produce the chemical substance as a byproduct; or
     
  • Produce or import the chemical substance as an impurity.
     

EPA intends to issue proposed amendments to the current fees rule later in 2020, with the goal of promulgating the amendments in 2021. EPA published a Federal Register notice on April 10, 2020, announcing the availability of a memorandum signed by the Assistant Administrator of the Office of Enforcement and Compliance Assurance (OECA) providing a “no action assurance” to these categories of manufacturers. 85 Fed. Reg. 20275. The memorandum is in effect from March 24, 2020, until either: (1) 11:59 p.m. (ET) September 30, 2021; or (2) the effective date of a final rule addressing the proposed exemptions to manufacture definition of the TSCA fees rule, whichever occurs earlier.

EPA Announces Temporary Enforcement Discretion Policy: EPA announced on March 26, 2020, a temporary policy regarding enforcement of environmental legal obligations during the COVID-19 pandemic. EPA states that its temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. The policy addresses different categories of noncompliance differently. For example, according to EPA, it “does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies.” The policy describes the steps that regulated facilities should take to qualify for enforcement discretion. To be eligible for enforcement discretion, the policy requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic. The policy applies retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if EPA determines modifications are necessary. To provide fair and sufficient notice to the public, EPA states that it will post a notification on its website at least seven days prior to terminating the temporary policy. EPA announced on April 2, 2020, that it sent a letter to all members of Congress to correct the record on its temporary policy. According to EPA, it expects regulated entities to comply with all obligations, and if they do not, EPA emphasizes that the policy states EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response. Furthermore, in cases that may involve acute risks, or imminent threats, or failure of pollution control or other equipment that may result in exceedances, “EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state or tribe, to allow regulators to work with that facility to mitigate or eliminate such risks or threats.” More information is also available in our March 27, 2020, and April 1, 2020, pesticide blogs.

Yvette T. Collazo Will Be New Director Of OPPT: Effective March 29, 2020, Yvette T. Collazo is the new Director of EPA’s OPPT. Ms. Collazo previously worked for the U.S. Department of Energy (DOE), where she led activities related to federal contracts and agreements of more than $250 million for the cleanup of radiological, industrial, and groundwater hazards resulting from decades of nuclear material production at DOE’s Savannah River facility. Ms. Collazo also served as Senior Advisor and Director for the Office of Technology Innovation and Development at DOE’s Office of Environmental Management. In this capacity, she led the identification and advancement of technologies, processes, and technical practices that improved the performance of waste processing, groundwater and soil, facility decontamination and decommissioning, and nuclear materials projects over their life cycles, from planning to disposal. Starting in 2013, Ms. Collazo served as District Director of the U.S. Small Business Administration (SBA) Puerto Rico and Virgin Islands District Office. As District Director, she was responsible for the delivery of the SBA’s financial assistance, business counseling, entrepreneurial training, and federal contracting programs throughout the District. Ms. Collazo has a Master of Science in Environmental Management from the Illinois Institute of Technology and a Bachelor of Science in Mechanical Engineering from the University of Puerto Rico, Mayagüez Campus.

EPA Publishes 2020 Mercury Inventory Report: On April 2, 2020, EPA published a Federal Register notice announcing the availability of the 2020 Mercury Inventory Report on the supply, use, and trade of mercury in the United States. 85 Fed. Reg 18574. The report presents aggregated data submitted on imported mercury, mercury manufactured in the United States, imported mercury-added products, mercury-added products made in the United States, and mercury used in manufacturing processes. The inventory report also provides a broad view of U.S. mercury stored, sold, and exported, as well as industry sectors and countries involved in the supply, use, and trade of mercury. More information is available in our March 31, 2020, memorandum, “EPA Publishes 2020 Mercury Inventory Report, Enhancing Transparency of Data.”

EPA Publishes Draft Risk Evaluation Of Asbestos: On April 3, 2020, EPA published a Federal Register notice announcing the availability of the draft risk evaluation of asbestos. 85 Fed. Reg. 18954. EPA reviewed a suite of potential asbestos exposures and made the following initial determinations on risk:

  • EPA did not find risk to the environment; and
     
  • EPA’s draft risk evaluation preliminarily found unreasonable risk to workers, occupational non-users, consumers, and bystanders.
     

EPA will hold a virtual peer review meeting of the SACC on the draft risk evaluation April 27-30, 2020. The virtual peer review meeting is open to the public to attend and provide comments. EPA asks that comments on the draft risk evaluation be submitted by April 22, 2020, to allow SACC time to review and consider them before the peer review meeting. Comments received after April 22, 2020, and prior to the end of the oral public comment period during the meeting will still be provided to SACC for their consideration. Comments on the draft risk evaluation are due June 2, 2020. More information is available in our April 1, 2020, memorandum, “EPA Publishes Draft Risk Evaluation of Asbestos, Will Hold Virtual Peer Review Meeting.”

EPA Seeks Public Comment On First Batch Of Draft Scope Documents: On April 9, 2020, EPA published a Federal Register notice announcing that the first set of draft scope documents for the next group of chemicals undergoing risk evaluation under TSCA is available for comment. 85 Fed. Reg. 19941. EPA released draft scope documents for 13 of the next 20 chemicals undergoing risk evaluation, and stated that it will soon release and accept public comments on the seven remaining draft scope documents. As is the case on all TSCA Section 6 actions taken by EPA, the scoping documents are substantial documents that will require thorough review by stakeholders. This is especially true if any of the 13 substances is in a company’s supply chain. Comments are due May 26, 2020. More information on the first batch of draft scope documents is available in our April 7, 2020, memorandum, “EPA Seeks Public Comment on First Batch of Draft Scope Documents.”

EPA Receives Manufacturer Request For Risk Evaluation Of D4: On April 8, 2020, EPA announced that it received a complete manufacturer request for EPA to conduct a risk evaluation of octamethylcyclotetrasiloxane (D4) from Dow Silicones Corporation, Elkem Silicones USA Corporation, Evonik Corporation, Momentive Performance Materials, Shin-Etsu Silicones of America, Inc., and Wacker Chemical Corporation through the American Chemistry Council’s Silicones Environmental, Health, and Safety Center. EPA states that D4 is used to make other silicone chemicals and as an ingredient in some personal care products. D4 was identified in the 2014 Update to the TSCA Work Plan. Within 60 business days of receipt of a facially complete request, EPA will submit for publication the receipt of the request in the Federal Register, open a public docket for the request, and provide no less than 45 calendar days for public comment.

EPA Amends CDR Rule And Extends 2020 Submission Period: On April 9, 2020, EPA promulgated a final rule amending the CDR rule. 85 Fed. Reg. 20122. According to EPA, the amendments are intended to reduce the burden for certain CDR reporters, improve the quality of CDR data collected, and align reporting requirements with the Lautenberg Act’s amendments to TSCA. EPA states that some of the key revisions include:

  • Simplifying reporting, including allowing manufacturers to use certain processing and use data codes already in use by many chemical manufacturers as part of international codes developed through the Organization for Economic Cooperation and Development (OECD);
     
  • Updating requirements for making confidentiality claims to align with the requirements in amended TSCA; and
     
  • Adding reporting exemptions for specific types of byproducts manufactured in certain equipment.
     

Additionally, EPA issued a final rule extending the reporting period for CDR data submitters from September 30, 2020, to November 30, 2020, to provide additional time for the regulated community to familiarize themselves with the amendments and to allow time for reporters to familiarize themselves with an updated public version of the reporting tool. 85 Fed. Reg. 19890. The reporting period will still begin on June 1, 2020. More information is available in our March 19, 2020, memorandum, “EPA Releases Final Amendments to CDR Rule, Extends Reporting Period.”

EPA Publishes Updated Data On TSCA CBI Reviews: On April 10, 2020, EPA published the quarterly update of the TSCA confidential business information (CBI) review statistics. The data summarize the number of CBI cases under review and results of completed reviews through March 1, 2020. In addition, a spreadsheet showing the details of completed TSCA CBI determinations through March 1, 2020, is available. EPA states that making this information publicly available “continues to demonstrate the agency’s commitment to transparency while fulfilling its responsibilities under the Lautenberg Act amendments to TSCA.” According to EPA, it has established “numerous new processes, systems, and procedures to enable submitters to provide the information required when making confidentiality claims and to facilitate EPA’s review, and where applicable, determinations on these claims.” The updated statistics show EPA’s progress toward meeting these requirements.

EPA Will Host April 16 Call On TSCA Fees For EPA-Initiated Risk Evaluations: EPA will hold a call on April 16, 2020, from 1:00 p.m. to 2:00 p.m. (EDT) on its recently announced plan to reduce burden for certain stakeholders subject to the TSCA fees rule requirements for EPA-initiated risk evaluations. The call will cover:

  • TSCA fees rule requirements and processes associated with EPA-initiated risk evaluations;
     
  • EPA’s March 25, 2020, rulemaking announcement and “No Action Assurance” and the implications for certain manufacturers who: (1) import a high-priority chemical in an article; (2) produce a high-priority chemical as a byproduct; or (3) produce or import a high-priority chemical as an impurity; and
     
  • Reporting obligations during the current comment period for the preliminary lists of fee payers, closing May 27, 2020.
     

Registration is now open.

EPA Coordinates With Retailers And Third-Party Marketplace Platforms To Discuss Steps To Protect American Consumers From Fraudulent Coronavirus Disinfectant Claims: On April 3, 2020, EPA hosted an interactive telephone call with U.S. retailers and third-party marketplace platforms to discuss imposter disinfectant products and those that falsely claim to be effective against the novel coronavirus, SARS-CoV-2, the cause of COVID-19. EPA hosted the call due to recent complaints on the availability of products with unsubstantiated and potentially dangerous claims of protection against SARS-CoV-2 and has enlisted the help of the retail community to prevent these products from coming to market.

EPA Administrator Andrew Wheeler described the call as “informative and productive,” and stated that “together, we will work diligently to ensure that consumers have access to EPA-approved and verified surface disinfectant products; products that we know to be effective against the novel coronavirus.” Additional information on the recent telephone conference is available here. More information can be found in our blog.

EPA Announces New Surface Disinfectant Products Added To List N In Effort To Combat COVID-19: On April 2, 2020, EPA announced the addition of new surface disinfectants on EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (List N) that may be used to combat SARS-CoV-2, the novel coronavirus that causes COVID-19. List N now contains 357 products. The web page for List N also now has enhanced functionality to allow users to sort these products by surface type and use site. EPA states that it continues to expedite the review process for new disinfectants. Additional information on EPA’s efforts to address the novel coronavirus is available here. More information is also available in our April 3, 2020, Pesticide Law and Policy Blog®.

EPA Announces Additional Action To Assure Availability Of Disinfectant Products For Use Against The Novel Coronavirus: On March 31, 2020, EPA announced it is taking further action to help ease the production and availability of EPA-registered disinfectants by temporarily allowing manufacturers of certain already-registered EPA disinfectant products to obtain certain active ingredients from any source without prior approval from EPA. This only applies to products on EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (List N). EPA announced on March 26, 2020, similar action on certain inert ingredients. Applications must be submitted via the CDX portal. At this time, EPA is not accepting paper applications. Once an application is submitted, EPA requests that an e-mail be sent to disinfectantslist@epa.gov with the CDX tracking number (CDX _ 2020 _ XXXXXXX). A registrant may distribute or sell a product modified according to this temporary amendment to Pesticide Registration (PR) Notice 98-10 once EPA receives the notification. Additional information on submission information for registrants is available at Emerging Viral Pathogen Claims for SARS-CoV-2: Submission Information for Registrants and in our March 31, 2020, blog and in our March 26, 2020, blog.

EPA To Schedule FIFRA SAP Meeting On New Approaches To Human Health Risk Assessment For Organophosphates: In September 2020, EPA’s Office of Pesticide Programs (OPP) plans to convene a FIFRA Scientific Advisory Panel (SAP) meeting to discuss New Approach Methodologies (NAM) for organophosphate (OP) pesticides. EPA states that these NAMs could reduce reliance on default uncertainty factors for human health risk assessment and also reduce animal testing. Additional details, including dates, times, and agenda, will be forthcoming at www.epa.gov/sap. More information is available in our blog.

RCRA/CERCLA/CWA/CAA/PHMSA/SDWA

NRDC Will Challenge EPA’s Navigable Waters Protection Rule: NRDC filed a notice of intent to sue EPA for violating the Endangered Species Act (ESA) in promulgating the Navigable Waters Protection Rule. The January 2020 rule limits the types of waterways protected by federal law, removing protections for smaller bodies of water. According to NRDC, the rule fails to protect wetlands and intermittent streams that provide water for protected desert species. NRDC argues that because the rule removes Clean Water Act (CWA) protections for wetlands and streams that endangered and threatened species depend on for habitat and food, “there is no question that the rule ‘may affect’ ESA-listed species.” NRDC states that this impact requires EPA to consult with the Fish and Wildlife Service before introducing new regulations.

EPA And DOT Release Final SAFE Vehicles Rule: On March 31, 2020, EPA and the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) released the final Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule setting corporate average fuel economy (CAFE) and carbon dioxide (CO2) emissions standards for model years (MY) 2021-2026 passenger cars and light trucks. In its March 31, 2020, press release, EPA states that the final rule will increase stringency of CAFE and CO2 emissions standards by 1.5 percent each year through MY 2026, as compared with the standards issued in 2012 that would have required about five percent annual increases. EPA notes that this is a change from the proposal issued in 2018. According to EPA, the majority of automakers are not meeting the 2012 standard without resorting to the use of credits. Specifically, EPA is amending CO2 standards for MYs 2021 and later, and NHTSA is amending fuel economy standards for MY 2021 and setting new fuel economy standards for MYs 2022-2026. The final rule withdraws a waiver previously provided to California under the Clean Air Act (CAA). EPA has posted a pre-publication version of the final rule. The final rule will take effect 60 days after publication in the Federal Register.

EPA Requests Comment On Designations And Recommendations For Recycled-Content Products: On April 7, 2020, EPA announced that it is seeking comment on its current list of items that are or can be made from recovered materials and its recommendations to federal agencies on purchasing these items. Resource Conservation and Recovery Act (RCRA) Section 6002 requires EPA to designate items that are or can be made with recovered materials and to recommend practices for procurement of such items. EPA has designated 61 items in eight product categories in a Comprehensive Procurement Guideline (CPG) and has issued recycled-content recommendations and procurement specifications for these items in a series of Recovered Materials Advisory Notices (RMAN) published in the Federal Register. EPA states in its April 7, 2020, Federal Register notice that it requests comments on the existing five CPGs and the five corresponding RMANs. 85 Fed. Reg. 19473. These five CPGs and RMANs pertain to 61 items in the following eight product categories: Paper and Paper Products; Vehicular Products; Construction Products; Transportation Products; Park and Recreation Products; Landscaping Products; Non-paper Office Products; and Miscellaneous Products. Comments are due July 6, 2020.

EPA Updates Air Sensor Toolbox: On April 1, 2020, EPA announced the availability of its newly designed and updated online Air Sensor Toolbox. The toolbox offers easier navigation and more information on what EPA is doing to advance and support the development of air sensors for measuring local air quality. Users can:

  • Learn about air sensor performance, evaluation, and use;
     
  • Understand air sensor readings;
     
  • Explore EPA’s air sensor research projects and activities; and
     
  • Find resources for air sensor projects.
     

EPA Submits Proposed Rule To OMB On Increasing Consistency And Transparency In Considering Benefits And Costs In The CAA Rulemaking Process: On April 10, 2020, EPA submitted to the Office of Management and Budget (OMB) a proposed rule on “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” According to an item in the fall 2019 Unified Agenda, as part of developing a consistent and transparent EPA-wide regulation, EPA will first develop proposed changes to the regulatory development process that are intended to improve consistency, reliability, and transparency of its treatment of CAA provisions related to benefits and costs. The item states that this action will provide the public with a better understanding on how EPA is evaluating benefits and costs when developing CAA regulatory actions and allow the public to provide better feedback to EPA on potential future proposed rules.

EPA Issues Interim Guidance Concerning Health And Safety Decisions At Cleanup Sites During COVID-19 Pandemic: On April 10, 2020, EPA issued interim guidance to its regional offices to ensure that decisions about new or ongoing cleanup activities at sites across the country are made with the health and safety of communities, state and tribal partners, EPA staff, and contractors as the priority. EPA states in its announcement that the interim guidance focuses on decision making at emergency response and longer term cleanup sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes, but is not limited to, Superfund cleanups, RCRA corrective actions, TSCA polychlorinated biphenyl (PCB) cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.

The interim guidance includes directions to the EPA regional offices on the following:

  • Considering site-specific factors when deciding on whether response actions will continue or be reduced, paused, or resumed;
     
  • Applying applicable enforcement instruments;
     
  • Conducting non-field site work; and
     
  • Planning for next steps after pausing site work.
     

OMB Reviewing Interim Final Rule On Continuous Emission Monitoring Quality Assurance Requirements During National Emergencies: EPA submitted to OMB on April 10, 2020, an interim final rule on continuous emission monitoring quality assurance requirements during national emergencies. According to EPA, the interim final rule is intended to protect workers during the coronavirus pandemic. It would allow industrial facilities to delay certain required quality assurance tests.

EPA Will Propose Updates To Existing Gasoline, Diesel, And Other Fuels Regulations: EPA announced on April 13, 2020, that it will issue a proposed rule intended to streamline and modernize its existing fuels regulations by eliminating “costly and unnecessary” duplication. EPA will propose to streamline existing fuels regulations by deleting expired provisions, eliminating redundant compliance provisions, and removing unnecessary and out-of-date requirements. The proposed rule will replace them with a single set of provisions and definitions that will apply across all gasoline, diesel, and other fuels programs. EPA states that it is proposing the regulations would replace the existing regulations on January 1, 2021. EPA notes that it “believes having an implementation date at the beginning of a new compliance period will provide for a smooth transition to new regulatory requirements.” Publication of the proposed rule in the Federal Register will begin a 60-day public comment period.

EPA Proposes To Retain NAAQS For PM: EPA announced on April 14, 2020, its proposal to retain, without changes, the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) including both fine particles (PM2.5) and coarse particles (PM10). According to the announcement, the proposal “comes after careful review and consideration of the most current available scientific evidence and risk and exposure information, and with consultation and confirmation by the agency’s independent science advisors.” The fact sheet provides the following summary of the proposed rule:

  • Primary (Health) Standards for PM2.5:
     
    • Annual standard: EPA is proposing to retain the current annual standard, with its level of 12.0 micrograms per cubic meter (μg/m3). An area would meet the standard if the three-year average of its annual average PM2.5 concentration is less than or equal to the level of the standard; and
       
    • 24-hour standard: EPA is proposing to retain the existing 24-hour standard, with its level of 35 μg/m3. An area would meet the 24-hour standard if the 98th percentile of the yearly distribution of 24-hour PM2.5 concentrations, averaged over three years, is less than or equal to 35 μg/m3.
       
  • Primary (Health) Standard for PM10:
     
    • EPA is proposing to retain the existing 24-hour primary standard for PM10, with its level of 150 μg/m3. An area meets the 24-hour PM10 standard if it does not exceed the 150 μg/m3 level more than once per year on average over a three-year period.
       
  • Secondary Standards for Particle Pollution:
     
    • EPA’s current secondary standards for particle pollution are identical to the primary standards for PM2.5 and PM10, except for the annual PM2.5 standard, which has a level of 15.0 μg/m3. After reviewing the science on particle pollution, analysis by EPA experts and advice from the agency’s independent science advisors, the Clean Air Scientific Advisory Committee (CASAC), EPA is proposing that the current secondary standards are adequate to protect against PM-related visibility impairment, climate effects, and effects on materials.
       

EPA will accept public comment for 60 days after the proposed standards are published in the Federal Register. EPA states that it will announce details on virtual public hearings “shortly.” According to the announcement, EPA will issue the final standards by the end of 2020.

FDA

Chromium Supplement For Horse Feed Approved: The U.S. Food and Drug Administration (FDA) on March 13, 2020, amended the regulations for food additives permitted in feed and drinking water of animals to expand use of chromium propionate as a source of supplemental chromium, currently approved for use in feed for broiler chickens, to include horse feed. 85 Fed. Reg. 14565. The approval, following a food additive petition filed by Kemin Industries, Inc., limits the level of supplemental chromium in horse feed to not exceed 4 mg of chromium from chromium propionate per horse per day.

FDA Accepting Comments For FAP And CAP Annual Reporting Burdens: On March 17, 2020, FDA announced the opportunity for public comment on the proposed collection of information from submission of food and color additive petitions (FAP and CAP), submission of information to a master file in support of petitions, and electronic submission using Form FDA 3503, as required under the Paperwork Reduction Act of 1995. 85 Fed. Reg. 15188. The estimated annual reporting burden, accounting for two CAPs per year and three FAPs per year, reflecting the average number of petitions received annually over a period of ten years, remains unchanged. FDA is accepting comments until May 18, 2020.

FDA Issues Final Rule Addressing Organizational Change: On March 24, 2020, FDA published a final rule that revises 21 C.F.R. Chapter I to reflect changes to FDA’s organizational structure. 85 Fed. Reg. 16549. The rule, intended to improve the accuracy of FDA’s regulation, is editorial in nature and does not impose any new regulatory requirements on regulated parties. Technical amendments in the rule include replacement of the term “District Director” with “Division Director,” as well as grammatical changes and conforming amendments to accommodate the new terminology. FDA has determined that this rulemaking meets the relevant notice and comment exemption requirements. The rule was effective immediately.

FDA Issues Temporary FSVP Policy During Public Health Emergency: On March 26, 2020, FDA announced the availability of final guidance for industry titled “Temporary Policy Regarding Preventive Controls and FSVP Food Supplier Verification Onsite Audit Requirements During the COVID-19 Public Health Emergency,” which communicates FDA’s intention not to enforce the requirement for an onsite audit in part 117, part 507, and the FSVP regulation in specified circumstances (e.g., region covered by a travel restriction related to COVID-19, an alternative verification activity is undertaken). 85 Fed. Reg. 17008. No deadline or timeframe is included in the guidance document. FDA reportedly intends to provide timely notice about the withdrawal of the temporary policy.

Cancellation Of International Cooperation On Cosmetics Regulation (ICCR) -- Preparation For ICCR-14 Meeting: On March 26, 2020, FDA announced cancellation of the public meeting titled “International Cooperation on Cosmetics Regulation (ICCR) -- Preparation for ICCR-14 Meeting,” due to the COVID-19 public health emergency. 85 Fed. Reg. 17088. As of March 20, 2020, the status of the ICCR-14 meeting itself remains to be determined.

FDA Announces Opportunity For Public Comment On Collection Of Information: On April 3, 2020, FDA announced an opportunity for public comment on the collection of information for the provisions of its Voluntary Cosmetic Registration Program (VCRP). 85 Fed. Reg. 18993. Specifically, FDA is seeking to understand the following.

  1. Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility;
     
  2. the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
     
  3. ways to enhance the quality, utility, and clarity of the information to be collected; and
     
  4. ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
     

Comments to the proposed collection are due June 2, 2020.

Extension Of Comment Period For FSMA Accreditation Rule: On April 6, 2020, FDA extended the comment period for the “Laboratory Accreditation for Analyses of Foods” proposed rule to July 6, 2020, due to the COVID-19 public health declaration. 85 Fed. Reg.10114.

The Latest COVID-19 Information From FDA: In late March, FDA launched a website offering information and daily updates for the Coronavirus Disease 2019 (COVID-19). The site includes “Daily Roundup” articles, press releases, public statements, frequently asked questions, links to guidance documents, and other information the general public and consumers may find helpful regarding the public health emergency.

NANOTECHNOLOGY

CCOHS Posts Podcast On Hazards Of Nanomaterials And How To Control Exposure: On March 9, 2020, the Canadian Center for Occupational Health and Safety (CCOHS) posted a podcast entitled “The Hazards of Nanomaterials and How to Control Exposure.” CCOHS states that nanomaterials have many useful properties, but the same properties that make them desirable in manufacturing present unique potential safety hazards when workers are exposed to them. In this episode, Todd Irick from the Occupational Health Clinics for Ontario Workers’ Nanotechnology and Health Network explains why nanotechnology is a health and safety concern in the workplace and how exposure to nanomaterials can be controlled.

RIVM Announces Article On Nanoparticle Exposure And Hazard In The Ceramic Industry: On March 16, 2020, the Dutch National Institute for Public Health and the Environment (RIVM) announced publication of an article in the May 2020 issue of Environmental Research entitled “Nanoparticle exposure and hazard in the ceramic industry: an overview of potential sources, toxicity and health effects.” In the article, the researchers provide an overview of the current knowledge on occupational exposure to nanoparticles in the ceramic industry and their impact on human health.

EC Committee Posts Fact Sheet On Guidance On Safety Assessment In Nanomaterials In Cosmetics In French, German, Italian, And Spanish: On March 23, 2020, the European Commission’s (EC) Scientific Committee on Consumer Safety (SCCS) announced that the fact sheet on the SCCS Guidance on the safety assessment of nanomaterials in cosmetics is now available in French, German, Italian, and Spanish. The guidance provides recommendations for the safety assessment of nanomaterials intended for use in cosmetics and covers the main elements of risk assessment of nanomaterials in relation to possible use as cosmetic ingredients.

NNI Releases “Nano Matters” Podcast Episode On Improving Pesticide Use With Nanotechnology: On March 30, 2020, the National Nanotechnology Initiative (NNI) released a “Nano Matters” podcast episode on “Improving Pesticide Use with Nanotechnology.” In the episode, Cristina Sabliov, Professor of Biological and Agricultural Engineering at Louisiana State University, explains how nanotechnology can improve pesticide delivery. She discusses her work on a polymeric nanoparticle delivery system that could reduce the environmental impact of pesticides.

EPA Proposes To Revise SNUR For Functionalized MWCNTs (Generic): EPA published a proposed rule on April 1, 2020, that would amend the significant new use rules (SNUR) for certain chemical substances that were the subject of a premanufacture notice (PMN) and a significant new use notice (SNUN), including functionalized multi-walled carbon nanotubes (MWCNT) (generic). 85 Fed. Reg. 18173. This action would amend the SNURs to allow certain new uses reported in the SNUNs without additional notification requirements and modify the significant new use notification requirements based on the actions and determinations for the SNUN submissions. EPA proposes to amend the SNUR to remove the new uses described in SNUN S-19-5 from the scope of the significant new use and remove the new uses described in SNUN S-18-4 from the scope of the significant new use, except where that use does not include the protective measures described in the TSCA Order for S-18-4. Comments are due May 1, 2020. More information is available in our April 1, 2020, blog item.

NIOSH Posts Posters On 3D Printing With Filaments, Metal Powders: The National Institute for Occupational Safety and Health (NIOSH) has posted two posters from the NIOSH Nanotechnology Research Center (NTRC) on 3D printing: 3D Printing with Filaments: Health and Safety Questions to Ask and 3D Printing with Metal Powders: Health and Safety Questions to Ask. The posters provide health and safety questions with different control options and information intended to reduce exposure to potential hazards.

EUON Announces That Female Fertility Data Are Lacking For Nanomaterials: The European Union (EU) Observatory for Nanomaterials (EUON) posted an article on April 6, 2020, announcing the availability of a study that found a lack of data on female fertility. The study, A critical review of studies on the reproductive and developmental toxicity of nanomaterials, was commissioned by the European Chemicals Agency (ECHA) and carried out by DHI A/S and the Danish National Research Center for the Working Environment. More information is available in our April 10, 2020, blog item.

National Academies Publish Quadrennial Review Of NNI: The National Academies of Sciences, Engineering, and Medicine (National Academies) have published a prepublication copy of A Quadrennial Review of the National Nanotechnology Initiative: Nanoscience, Applications, and Commercialization. The National Nanotechnology Coordination Office (NNCO) asked the National Academies to form an ad hoc committee to conduct a quadrennial review of the NNI. The statement of task was to analyze the relative position of the U.S. nanotechnology program relative to the programs of other nations, determine whether NNI coordination should continue, and if it should, identify how to improve the NNI’s research and development (R&D) strategy and R&D portfolio to enhance further the economic prosperity and national security of the United States. The report identifies changes to NNI intended to “promote a resurgence of the nation’s nanotechnology program and enable it to respond to the dynamic changes of the new global research environment in which it functions.”

ISO Publishes Standard Specifying Characteristics And Measurement Methods For Air Filter Media Containing Polymeric Nanofibers: The International Organization for Standardization (ISO) has published standard ISO/TS 21237:2020, “Nanotechnologies -- Air filter media containing polymeric nanofibres -- Specification of characteristics and measurement methods.” According to ISO, in recent years, air filter media containing nanofibers have been commercialized and widely used by different industries due to their high filtration efficiency, along with a low pressure drop created by the slip flow effect. ISO states that the standard is intended to facilitate communication between sellers and buyers and to support the growing trade of this new class of air filter media.

BIOBASED/RENEWABLE PRODUCTS

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

LEGISLATIVE

House Passes Bill To Extend CFATS Program: On March 14, 2020, the House passed a bill by unanimous consent that would reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program for 18 months (H.R. 6160). The CFATS program will expire on April 18, 2020, without the extension.

Senate Confirms Katherine Lemos To Chair CSB: On March 24, 2020, the Senate Committee on Environment and Public Works announced that the Senate confirmed Katherine Lemos, Ph.D., to be a member and Chair of the U.S. Chemical Safety and Hazard Investigation Board (CSB). The Senate confirmed Lemos by unanimous consent. Dr. Lemos previously served in the Federal Aviation Administration and on the National Transportation Safety Board. She is currently the Director of Programs for Northrop Grumman Corporation’s Aerospace Sector. According to the White House’s June 13, 2019, announcement of the nomination, Dr. Lemos has a distinguished background in system safety, accident investigation, human factors, and advanced technology research and integration. She also has broad experience across the product life cycle in analyzing and promoting product, process, and operational performance.

Senate Committee Gathers Information On AIM Act: From March 25, 2020, through April 8, 2020, the Senate Committee on Environment and Public Works conducted an information-gathering process entitled “S. 2754, American Innovation and Manufacturing Act of 2019: Written Testimony and Questions for the Record.” During this period, the Committee accepted written testimony from any interested party regarding the American Innovation and Manufacturing (AIM) Act of 2019 (S. 2754). Until 4:00 p.m. on April 15, 2020, the Committee accepted written questions for the record from Committee members who wish to ask a submitting party questions. No later than 4:00 p.m. on April 29, 2020, the Committee will electronically accept written responses to questions for the record from submitting parties who received questions from Committee members. The Committee will make publicly available on its website the full record of written testimony and questions for the record compiled during this information-gathering process. The AIM Act would authorize a 15-year phasedown of hydrofluorocarbons (HFC) and would give EPA the authority to regulate a transition to newer refrigerants.

MISCELLANEOUS

California Department Of Pesticide Regulation Announces Limited Enforcement Discretion For Licensing Requirements To Support COVID-19 Control For The Next 90 Days: On April 3, 2020, the California Department of Pesticide Regulation (DPR) announced it would allow enforcement discretion by County Agricultural Commissioners (CAC) for licensing and certification requirements for pesticide applicators who perform sanitization services to control the spread of COVID-19. DPR states in its announcement that, under normal circumstances, a “Pest Control Business (PCB) must always have a Qualified Applicator License (QAL) holder to supervise pest control services. Generally, where a PCB performs sanitization services, the QAL must also be certified in Category A, P, or K” described as follows:

  • Category A allows PCBs to perform sanitization or disinfection in residential, industrial, or institutional (RII) use settings such as hospitals, schools, or prisons;
     
  • Category P allows PCBs to perform microbial pest control in RII use settings; and
     
  • Category K allows PCBs to perform health related pest control services under a government-sponsored program.
     

DPR acknowledges that due to Governor Newsom’s March 4, 2020, “Stay at Home” Executive Order, DPR cannot proctor in-person licensing examinations to certify licensees. DPR thus announced that it will use enforcement discretion by allowing “licensed and registered PCBs to perform sanitization services for the control of COVID-19 if they have a designated individual at each business location with a valid QAL in any category” (emphasis added by DPR). DPR specifies that enforcement discretion applies when all of the following conditions are met:

  1. The professional sanitization service is performed for COVID-19 control and only during the next 90 days.
     
  2. The PCB without the specific QAL license category notifies the CAC in writing with an explanation for why the sanitization work is necessary.
     
  3. Examples of necessary work may include situations in which the PCB is the only licensee registered to do business in the county or where other properly licensed PCBs are unavailable to perform COVID-19-related work.
     
  4. The QAL holder ensures that all applicators applying antimicrobials are properly trained and are in strict compliance with label directions and all other applicable laws and regulations.
     

The announcement states that those who wish to obtain more information should contact Joe Marade, DPR’s County/State Liaison, at joe.marade@cdpr.ca.gov.

DOJ Will No Longer Seek SEPs In Civil Settlements With Private Defendants: On March 12, 2020, the U.S. Department of Justice (DOJ) issued a memorandum to Environment and Natural Resources Division (ENRD) Assistant Attorney Generals and Section Chiefs regarding supplemental environmental projects (SEP) in civil settlements with private defendants. The memorandum notes that some agencies, including EPA, have entered into SEPs, which are settlements that require defendants to expend funds to provide goods or services to third parties in lieu of the payment of penalties. According to the memorandum, these agencies and DOJ relied on the rationale that SEPs do not trade penalties for projects because there is no penalty owed to the government until the settlement is final. The memorandum states that the policy on which EPA and DOJ previously relied to justify these payments recognized that a given SEP can result in direct penalty mitigation of 80 percent (or less). Given the “acknowledged mathematical relationship between penalties and SEPs,” the memorandum states that “the conclusion is inescapable that SEPs violate the Miscellaneous Receipts Act.” Going forward, SEPs will no longer be part of the suite of relief ENRD seeks in its cases, unless specifically authorized by Congress, “both in light of their inconsistency with law and their departure from sound enforcement practices.”

OECA Publishes Criminal Enforcement Case Bulletin Update For December 2019 Through January 2020: EPA published on March 17, 2020, the Environmental Crimes Case Bulletin for December 2019 through January 2020. The bulletin summarizes publicized investigative activity and adjudicated cases conducted by EPA’s Office of Criminal Enforcement, Forensics and Training (OCEFT) Criminal Investigation Division special agents, forensic specialists, and legal support staff. OCEFT investigates violations of environmental laws and provides a broad range of technical and forensic services for civil and criminal investigative support and council on legal and policy matters.

EPA Publishes Species Sensitivity Distribution Toolbox: On March 17, 2020, EPA published the Species Sensitivity Distribution (SSD) Toolbox, which EPA scientists developed to help assessors determine potential risks from chemical exposure, while taking into account the range of sensitivities among different organisms. According to EPA, the SSD Toolbox uses toxicity test results collected from the lab or field from multiple species for a given chemical. Some typical aquatic invertebrates included in these tests are Daphnia magna, Ceriodaphnia dubia, and Hyalella azteca, but EPA notes that the tool can be used for other taxa as well, including fish and terrestrial vertebrates.

EPA Publishes Supplement To Proposed Rule On Strengthening Transparency In Regulatory Science: EPA published a supplemental notice of proposed rulemaking (SNPRM) to the Strengthening Transparency in Regulatory Science proposed rule in the Federal Register on March 18, 2020. 85 Fed. Reg. 15396. EPA notes that the SNPRM “is not a new rulemaking; rather, it provides clarifications on certain terms and aspects of the 2018 proposed rule.” The SNPRM:

  • Proposes that the scope of the rulemaking applies to influential scientific information, as well as significant regulatory decisions;
     
  • Defines and clarifies that the proposed rule applies to data and models underlying both pivotal science and pivotal regulatory science;
     
  • Proposes a modified approach to the availability provisions for data and models that would underlie influential scientific information and significant regulatory decisions, as well as an alternate approach; and
     
  • Clarifies the ability of the Administrator to grant exemptions.
     

On April 2, 2020, EPA announced that it would extend the comment period to May 18, 2020. EPA anticipates promulgating a final rule later in 2020. More information is available in our March 9, 2020, memorandum, “EPA Releases Supplemental Proposed Rule to the Proposed Rule on Strengthening Transparency in Regulatory Science.”

EPA OIG Report States EPA Enforcement Efforts Generally Declined From FYs 2006 Through 2018: On March 31, 2020, the EPA Office of Inspector General (OIG) published a report entitled EPA’s Compliance Monitoring Activities, Enforcement Actions, and Enforcement Results Generally Declined from Fiscal Years 2006 Through 2018. OIG conducted the audit to identify the trends in EPA-led enforcement actions and results from fiscal years (FY) 2006 through 2018. According to the report, EPA’s annual level of compliance monitoring activities, enforcement actions, and enforcement results generally declined throughout the scope of the audit:

  • The number of inspections conducted decreased by 33 percent when comparing FYs 2007 and 2018;
     
  • The numbers of enforcement actions initiated and concluded decreased by 52 and 51 percent, respectively, when comparing FYs 2007 and 2018;
     
  • EPA concluded 58 percent fewer enforcement actions with injunctive relief in FY 2018 than in FY 2007;
     
  • EPA concluded 53 percent fewer enforcement actions with penalties in FY 2018 than in FY 2007;
     
  • The total number of supplemental environmental projects decreased by 48 percent; and
     
  • The value of environmental benefit commitments to reduce, treat, or eliminate pollutants varied from FYs 2012 through 2018 but decreased by 64 percent when comparing FYs 2012 and 2018. The number of commitments also decreased by 31 percent when comparing FYs 2012 and 2018.
     

OIG notes that both funding for EPA’s enforcement program and the number of enforcement staff decreased by 18 percent and 21 percent, respectively, when comparing FYs 2006 and 2018. While OIG conducted the audit, EPA released its FY 2019 annual enforcement measures. According to the report, compared to FY 2018, four of the 15 enforcement measures increased, while 11 continued to decrease. EPA’s enforcement funding and staff also continued to decrease in FY 2019.

SAB Economic Guidelines Review Panel Will Meet April 23: EPA published a Federal Register notice on March 31, 2020, announcing that the Science Advisory Board (SAB) Economic Guidelines Review Panel will hold a public teleconference on April 23, 2020. 85 Fed. Reg. 17873. The purpose of the meeting is to receive an agency briefing, review charge questions, and hear public comments on EPA’s revised “Guidelines for Preparing Economic Analyses.” The Federal Register notice states that the purpose of the document is to define and describe best practices for economic analysis grounded in the economics literature. It also describes Executive Orders and other documents that impose analytic requirements and provides detailed information on selected important topics for economic analyses.

OSTP Extends Comment Period For RFI On Public Access To Peer-Reviewed Scholarly Publications, Data And Code Resulting From Federally Funded Research: On March 31, 2020, the Office of Science and Technology Policy published a Federal Register notice extending the comment period for a February 19, 2020, request for information (RFI). 85 Fed. Reg. 17907. OSTP and the National Science and Technology Council’s (NSTC) Subcommittee on Open Science (SOS) are engaged in ongoing efforts to facilitate implementation and compliance with the 2013 memorandum Increasing Access to the Results of Federally Funded Scientific Research and to address recommended actions made by the Government Accountability Office in a November 2019 report. The RFI aims to provide all interested individuals and organizations with the opportunity to provide recommendations on approaches for ensuring broad public access to the peer-reviewed scholarly publications, data, and code that result from federally funded scientific research. Comments are now due May 6, 2020.

EPA Invites Nominations Of Candidates To EPA’s SAB And SAB Standing Committees: On April 1, 2020, EPA published a Federal Register notice inviting nominations of scientific experts from a diverse range of disciplines to be considered for appointment to EPA’s SAB and four SAB standing committees. 85 Fed. Reg. 18225. The SAB Staff Office invites nominations to serve on the chartered SAB in the following scientific disciplines as they relate to human health and the environment: analytical chemistry; benefit-cost analysis; causal inference; complex systems; ecological sciences and ecological assessment; economics; engineering; forestry; geochemistry; health sciences; hydrology; hydrogeology; medicine; microbiology; modeling; pediatrics; public health; risk assessment; social, behavioral and decision sciences; statistics; toxicology; epidemiology; and uncertainty analysis. The SAB Staff Office is also seeking nominations of experts for possible vacancies on the following four SAB standing committees:

  • The SAB Agricultural Science Committee provides advice to the chartered SAB on matters that have been determined to have a significant direct impact on farming and agriculture-related industries;
     
  • The SAB Chemical Assessment Advisory Committee provides advice through the chartered SAB regarding selected toxicological reviews of environmental chemicals;
     
  • The SAB Drinking Water Committee provides advice on the scientific and technical aspects of EPA’s national drinking water; and
     
  • The Radiation Advisory Committee provides advice on radiation protection, radiation science, and radiation risk assessment.
     

Nominations are due May 1, 2020. EPA anticipates filling the appointments by the start of FY year 2021 (October 2020).

CDTSC Extends Comment Period, Postpones Hearing On Proposed Regulations On PFAS In Carpets And Rugs: The California Department of Toxic Substances Control (CDTSC) has extended the comment period on its proposed regulations that would list carpets and rugs containing per- or polyfluoroalkyl substances (PFAS) as priority products. CDTSC states that due to the threat of COVID-19, the public hearing originally scheduled for April 13, 2020, is being postponed and will be conducted as a virtual hearing. CDTSC will also extend the comment period for the proposed regulations through the date of the virtual hearing. CDTSC will announce the date, time, and specifics of the virtual hearing.

EPA Requests Nominations To NAC And GAC To U.S. Representative To CEC: On April 10, 2020, EPA published a Federal Register notice inviting nominations from a diverse range of qualified candidates to be considered for appointment to fill vacancies on the the National Advisory Committee (NAC) and the Government Advisory Committee (GAC) to the U.S. Representative to the Commission for Environmental Cooperation (CEC). 85 Fed. Reg. 20267. According to the notice, vacancies on these two committees are expected to be selected by spring 2020. Nominations are due May 8, 2020. NAC and GAC held a public teleconference on April 10, 2020, to provide advice to the EPA Administrator regarding the draft 2021-2025 CEC Strategic Plan.

OSHA Issues Enforcement Guidance For Recording Cases Of COVID-19: On April 10, 2020, the Occupational Safety and Health Administration (OSHA) announced that it issued interim guidance for enforcing OSHA’s recordkeeping requirements (29 C.F.R. Part 1904) as it relates to recording cases of COVID-19. OSHA states that under its recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:

  • Is confirmed as a COVID-19 illness;
     
  • Is work-related as defined by 29 C.F.R. Section 1904.5; and
     
  • Involves one or more of the general recording criteria in 29 C.F.R. Section 1904.7, such as medical treatment beyond first aid or days away from work.
     

OSHA notes that in areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: there is objective evidence that a COVID-19 case may be work-related; and the evidence was reasonably available to the employer. OSHA states that employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations pursuant to 29 C.F.R. Part 1904.

OSHA Announces Interim Enforcement Response Plan Intended To Protect Workers During The Coronavirus Pandemic: OSHA announced on April 13, 2020, an interim enforcement response plan for the coronavirus pandemic. The response plan provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHO) for handling coronavirus-related complaints, referrals, and severe illness reports. OSHA states that during the coronavirus outbreak, OSHA Area Offices will use their inspection resources to fulfill mission essential functions and protect workers exposed to the disease. The response plan contains interim procedures that allow flexibility and discretion for field offices to maximize OSHA’s impact in securing safe workplaces in this evolving environment. The response plan outlines procedures for addressing reports of workplace hazards related to the coronavirus. According to OSHA, fatalities and imminent danger exposures related to the coronavirus will be prioritized for on-site inspections. The response plan contains procedures and sample documentation for CSHOs to use during coronavirus-related inspections. OSHA notes that workers requesting inspections, complaining of coronavirus exposure, or reporting illnesses may be protected under one or more whistleblower statutes and will be informed of their protections from retaliation. The response plan took effect immediately and will remain in effect until further notice.

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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