Federal Development Update for March 2021


Product Stewardship And The Pandemic: Surviving And Thriving In Disruptive Times, March 31, 2021, 1:30 p.m. - 3:00 p.m. EDT, Via Webinar: The COVID-19 global pandemic has had far-reaching impacts on business operations. To strengthen organizational resilience going forward, we must examine lessons learned and position product stewardship as a key player in business continuity and crisis management.This future-focused webinar hosted by the Product Stewardship Society (PSS) will identify the broad range of complex, unresolved, and evolving issues product stewards have faced and continue to face because of the pandemic. Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®), will moderate this discussion and B&C is a proud sponsor. Complimentary registration is available here.

All Things Chemical™ Podcast Celebrates Its 50th Fascinating Episode: B&C is pleased to announce the 50th episode of All Things Chemical, with the release of episodes 49 and 50, the two-part series “How will the Biden Administration Interpret Amended TSCA?” and “How will the New Administration affect the EPA?”. On this milestone, Lynn L. Bergeson stated “B&C is thrilled to offer the podcast platform to chemical stakeholders of diverse backgrounds. The complexity and ever-changing commercial, legal, scientific, and regulatory landscape of the global chemical community offer rich and seemingly endless content for listeners. We look forward to many more great conversations.” All episodes of All Things Chemical are available to stream online now.

GlobalChem 2021, March 31, 2021, Via Webinar: B&C is a proud sponsor of GlobalChem. Richard E. Engler, Ph.D., Director of Chemistry, B&C, presented “CBI Challenges and Opportunities,” now available for registrants to stream on-demand and will present “Plastics and UNEA” on March 31, 2021.

TSCA/FIFRA/TRI

"Why the US EPA can, and should, evaluate the risk-reducing role a new chemical may play if allowed on the market," By Richard E. Engler, Ph.D. And Jeffery T. Morris, Ph.D., For Chemical Watch: In the 21st century, we take as given a continuous stream of new and better products. From electronics to building materials to transportation solutions, the flow of new and better products and applications seems unending. New chemical substances play a fundamental role in creating those products and making existing products better. If the pipeline of new chemicals were closed off, the flow of new products and applications would slow to a trickle and eventually dry up. Modern life as we know it would not exist without the continued invention, production, and use of new chemicals. Read the full article online.

EHS Daily Advisor Publishes “What Might EHS Expect from the Biden EPA?” By Lynn L. Bergeson: As a new administration arrives in Washington, D.C., few things are certain except that 2021 is sure to be an eventful year. While underlying partisan jockeying and prospects for bipartisan cooperation will greatly affect what may happen in the more limited context of chemical regulation, the Biden Administration has already laid out priorities on the environment that will surely influence the U.S. Environmental Protection Administration (EPA) positions on climate change, the role of science, and regulation in general. Read the full article online.

National Academies Committee Recommends EPA Improve Its Use Of Systematic Review In TSCA Risk Evaluations; EPA “Commits to Strengthening Science Used in Chemical Risk Evaluations”: On February 16, 2021, the National Academies of Sciences, Engineering, and Medicine (National Academies) announced the availability of a report entitled The Use of Systematic Review in EPA’s Toxic Substances Control Act Risk Evaluations. EPA requested that the National Academies convene a committee to review EPA’s 2018 guidance document on Application of Systematic Review in TSCA Risk Evaluations and associated materials. In its final report, the Committee to Review EPA’s Toxic Substances Control Act (TSCA) Systematic Review Guidance Document states that it “was in strong consensus that the processes used by [the Office of Pollution Prevention and Toxics (OPPT)] do not meet the evaluation criteria specified in the Statement of Task (i.e., comprehensive, workable, objective, and transparent).” The final report states that “[t]here is an ongoing cross-sector effort to develop and validate new tools and approaches for exposure, environmental health, and other new areas of application of systematic review,” and the Committee “strongly recommends that OPPT staff engage in these efforts.”

EPA published a press release on February 16, 2021, in response to the Committee’s report, announcing that it “will refine its approach to selecting and reviewing the scientific studies that are used to inform” TSCA chemical risk evaluations. EPA “expects to publish and take public comment on a TSCA systematic review protocol that will adopt many of the recommendations in the Academies’ report later this year.” More information is available in our February 17, 2021, blog item.

EPA Will Hold Public Comment Period For Manufacturer-Requested Risk Evaluation For OTNE: On February 18, 2021, EPA announced that it is opening a public comment period for a manufacturer-requested risk evaluation of octahydro-tetramethyl-naphthalenyl-ethanone (OTNE), a category of chemical substances consisting of four inseparable individual isomers. 86 Fed. Reg. 10267. EPA specifically invites public comment on the inclusion of any additional conditions of use and potentially exposed or susceptible subpopulations. According to the notice, EPA is in the process of broadly re-examining how it intends to implement these and other provisions of amended TSCA, including determining how new executive orders and other direction provided by the Biden-Harris Administration will be addressed. Comments are due April 5, 2021. More information is available in our February 18, 2021, blog item.

EPA Extends Comment Period For Proposed Updates To TSCA Fees Rule: On February 23, 2021, EPA extended the public comment period on proposed updates to the TSCA Fees Rule to give stakeholders more time to review and comment. 86 Fed. Reg. 10918. Comments are due March 27, 2021. Information on the proposed updates is available in our December 30, 2020, memorandum, “EPA Intends Proposed Rule to Increase Flexibility and Reduce Burdens under TSCA Fees Program.”

EPA Publishes Receipt And Status Information For Certain New Chemicals: On February 23, 2021, EPA published the receipt and status reports for TSCA Section 5 submissions for January 2021. 86 Fed. Reg. 10958. EPA provides notice of receipt of premanufacture notices (PMN), significant new use notices (SNUN), and microbial commercial activity notices (MCAN) (including amended notices and test information); an exemption application under 40 C.F.R. Part 725 (Biotech exemption); test marketing exemptions (TME), both pending and/or concluded; notices of commencement (NOC) to manufacture a new chemical substance; and a periodic status report on new chemical substances that are currently under EPA review or have recently concluded review. EPA also provides information on its website about cases reviewed under the amended TSCA, including the Section 5 PMN/SNUN/MCAN and exemption notices received, the date of receipt, the final EPA determination on the notice, and the effective date of EPA’s determination for PMN/SNUN/MCAN notices. Comments identified by the specific case number provided in the notice must be received on or before March 25, 2021.

GAO Report States EPA Has Completed Some Regulatory-Related Actions For PFAS: On March 1, 2021, the U.S. Government Accountability Office (GAO) publicly released a report entitled Man-Made Chemicals and Potential Health Risks: EPA Has Completed Some Regulatory-Related Actions for PFAS. GAO found that EPA completed three of six selected regulatory-related actions for addressing per- and polyfluoroalkyl substances (PFAS) outlined in the PFAS Action Plan. According to GAO, three of the six selected regulatory-related actions are ongoing, and EPA’s progress on these actions varies. More information is available in our March 2, 2021, blog item.

GAO Reports That EPA’s Process For Assessing And Controlling Toxic Chemicals Has Regressed: On March 2, 2021, GAO published its latest High Risk List, which includes 36 areas across the federal government vulnerable to waste, fraud, abuse, and mismanagement or needing broad-based transformation. According to GAO, five areas have regressed since 2019, including EPA’s process for assessing and controlling toxic chemicals. GAO’s report, High-Risk Series: Dedicated Leadership Needed to Address Limited Progress in Most High-Risk Areas, states that this high-risk area declined in the monitoring criterion from a partially met rating in 2019 to a not met rating in 2021; three criteria in each of the two segments declined to a not met rating in 2021. GAO notes that the Integrated Risk Information System (IRIS) Program did not issue a completed chemical assessment between August 2018 and December 2020, and EPA (1) did not indicate how it was monitoring its assessment nomination process to ensure it was generating quality information about chemical assessment needs; and (2) lacked implementation steps and resource information in its strategic plan and metrics to define progress in the IRIS Program. Additionally, according to GAO, EPA’s programs supporting TSCA (1) did not complete workforce or workload planning to ensure the Agency can meet TSCA deadlines; and (2) did not meet initial statutory deadlines for releasing its first ten chemical risk evaluations.

EPA Announces Settlement With Major Chemical Distributor For TSCA Violations: On March 2, 2021, EPA announced that it reached a settlement agreement with Brenntag Pacific, Inc. for TSCA violations. According to EPA, Brenntag Pacific, Inc. has corrected the violations and will pay a $128,265 fine. EPA inspectors “found the company failed to submit accurate and timely reports and notification associated with the import and export of nine chemicals.” According to EPA, between 2012 and 2015, Brenntag Pacific, Inc. failed to report properly the import production volumes and uses of five chemicals as required by the 2016 Chemical Data Reporting (CDR) Rule.

Ranking Members On House Committee On Science, Space, And Technology Urge EPA To “Expedite” Reevaluation Of TSCA Systematic Review: On March 3, 2021, Representatives Frank Lucas (R-OK), Ranking Member of the House Science, Space, and Technology Committee; Stephanie Bice (R-OK), Ranking Member of the Environment Subcommittee; and Jay Obernolte (R-CA), Ranking Member of the Investigations and Oversight Subcommittee, sent a letter to EPA urging EPA to expedite any reevaluation of TSCA systematic review methods. In their March 4, 2021, press release, the Republicans ask for EPA’s commitment that, “in accordance with congressional intent to operate with flexibility and speed, TSCA does not fully or consistently adopt program processes or procedures implemented by IRIS.” If EPA incorporates elements developed by the IRIS Program into TSCA, the Republicans “expect the Agency to assess their benefits and impacts thoroughly, while also adhering to the statutorily prescribed deadlines and scientific standards mandated.”

EPA Releases Testing Data Showing PFAS Contamination From Fluorinated Containers: On March 5, 2021, EPA announced that it is making available new testing data related to PFAS found in fluorinated containers in which a mosquito control product was packaged and sold. EPA also announced its planned next steps to characterize further and address this potential source of contamination. EPA states that it “will use all available regulatory and non-regulatory tools to determine the scope of this emerging issue and its potential impact on human health and the environment. It is important to note that although these types of products should not be a source of PFAS, the data indicates that the amount of PFAS that has entered the environment from the contamination in the containers the agency tested is extremely small.” According to the announcement, EPA is also committed to coordinating with the affected entities involved and their supply and distribution chains, pesticide users, the pesticide and packaging industry, and its federal, state, and tribal partners as it works through this complex health and environmental issue.

EPA Proposes To Cancel FIFRA Registration For Pentachlorophenol: On March 5, 2021, EPA announced that “[i‌]n support of the Biden-Harris Administration’s commitment to making evidence-based decisions to protect human health, U.S. Environmental Protection Agency (EPA) is taking an important step by proposing the cancellation of the registration of pentachlorophenol.” Pentachlorophenol, a well-recognized wood preservative in use for decades, is registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). According to EPA, it is used primarily on utility poles. For more information on the cancellation of pentachlorophenol, please read the full memorandum.

EPA Seeks Additional Public Comment On Final PBT Rules, Announces No Action Assurance For Final Rule On PIP (3:1): EPA announced on March 8, 2021, that it is asking for additional public input on five final rules for persistent, bioaccumulative, and toxic (PBT) chemicals issued on January 6, 2021, under TSCA. EPA is opening a 60-day comment period for the public to provide new input on:

  • Whether the rules sufficiently reduce exposure to these chemicals, including exposures to potentially exposed or susceptible subpopulations and the environment;
     
  • Newly raised compliance issues associated with the final rule on phenol, isopropylated phosphate (3:1) (PIP (3:1)), including the compliance dates for certain regulated articles; and
     
  • Whether to consider additional or alternative measures or approaches.
     

EPA will use the feedback received during the comment period to determine the best path forward, which could include amending the final rules to include additional or alternative exposure reduction measures or extending compliance dates for certain regulated products and articles. Upon publication of the Federal Register notice, EPA will accept public comments for 60 days.

EPA is also issuing a temporary 180-day “No Action Assurance” indicating that it will exercise its enforcement discretion regarding the prohibitions on processing and distribution of PIP (3:1) for use in articles, and the articles to which PIP (3:1) has been added. EPA “is taking this action to ensure that the supply chain of these important articles is not interrupted while EPA continues to collect the information needed to best inform subsequent regulatory efforts and allow for the issuance of a final agency action to extend the March 8, 2021, compliance date as necessary.”

EPA Publishes Statements Of Findings For 2020 For Certain New Chemicals Or Significant New Uses: On March 10, 2021, EPA published statements of Administrator findings under TSCA Section 5(a)(3)(C) for January 1, 2020, through December 31, 2020. 86 Fed. Reg. 13706. TSCA Section 5(g) requires EPA to publish in the Federal Register a statement of its findings after its review of TSCA Section 5(a) notices when EPA makes a finding that a new chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment. Such statements apply to PMNs, MCANs, and SNUNs submitted to EPA under TSCA Section 5.

COVID-19

FDA Issues Latest Update On Response Efforts: On March 9, 2021, the U.S. Food and Drug Administration (FDA) issued its latest update on the ongoing response efforts to the COVID-19 pandemic. The highlights include 340 tests and sample collection devices are now authorized under Emergency Use Authorizations (EUA) with 38 of those for use in home-collection of samples. In addition, FDA warns that it is unlawful to advertise that a product can prevent, treat, or cure human diseases unless you possess competent and reliable scientific evidence, including, when appropriate, well-conducted human clinical studies, substantiating that the claims are true at the time they are made and for COVID-19, no such study is currently known to exist for certain product types, including wipes.

RCRA/CERCLA/CWA/CAA/PHMSA/SDWA

EPA Extends Comment Periods For Proposed National Emission Standards For Hazardous Air Pollutants (NESHAP) Rules: On February 23, 2021, EPA extended the comment periods for proposed rules titled “National Emission Standards for Hazardous Air Pollutants: Mercury Cell Chlor-Alkali Plants Residual Risk and Technology Review” (86 Fed. Reg. 1362) and “National Emission Standards for Hazardous Air Pollutants: Primary Magnesium Refining Residual Risk and Technology Review” (86 Fed. Reg. 1390), published on January 8, 2021; “National Emission Standards for Hazardous Air Pollutants: Flexible Foam Fabrication Operations Residual Risk and Technology Review and Flexible Polyurethane Foam Production and Fabrication Area Source Technology Review” (86 Fed. Reg. 1868), published on January 11, 2021; “National Emission Standards for Hazardous Air Pollutants: Refractory Products Manufacturing Residual Risk and Technology Review” (86 Fed. Reg. 3079) and “National Emission Standards for Hazardous Air Pollutants: Carbon Black Production Residual Risk and Technology Review” (86 Fed. Reg. 3054), published January 14, 2021; and “National Emission Standards for Hazardous Air Pollutants: Cyanide Chemicals Manufacturing Residual Risk and Technology Review” (86 Fed. Reg. 3906), published on January 15, 2021. 86 Fed. Reg. 10909. EPA states that it is extending the comment period to allow additional time for stakeholders to review and comment on the proposals. Comments on the January 8, 2021, proposed rules are due March 24, 2021. Comments on the January 11, 2021, proposed rule are due March 29, 2021. Comments on the January 14, 2021, and January 15, 2021, proposed rules are due March 31, 2021.

EPA Announces Final Regulatory Determinations For Contaminants On CCL 4: On March 3, 2021, EPA announced final regulatory determinations for eight of the 109 contaminants listed on the Fourth Contaminant Candidate List (CCL 4). 86 Fed. Reg. 12272. Specifically, EPA made final determinations to regulate perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) and not to regulate 1,1-dichloroethane, acetochlor, methyl bromide (bromomethane), metolachlor, nitrobenzene, and RDX. The Safe Drinking Water Act (SDWA) requires EPA to make regulatory determinations every five years on at least five unregulated contaminants. A regulatory determination is a decision about whether to begin the process to propose and promulgate a national primary drinking water regulation for an unregulated contaminant.

EPA Requests Additional Input On The Lead And Copper Rule: EPA announced on March 10, 2021, that it is extending the effective date of the Revised Lead and Copper Rule (LCR) so that it can seek further public input, particularly from communities that are most at-risk of exposure to lead in drinking water. The first action is a final rule that announces an extension of the effective date for the revised LCR from March 16, 2021, until June 17, 2021. 86 Fed. Reg. 14003. The purpose of this additional time is to enable EPA to take public comment on a second action that would provide a longer extension of the effective date and for EPA to review the rule “in a deliberate and thorough manner consistent” with the public health purposes of the SDWA, President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, the President’s Chief of Staff’s Regulatory Freeze Pending Review Memorandum, and in consultation with affected stakeholders. The second action is a proposed rule that would extend the effective date until December 16, 2021, and also proposes a corresponding extension of the revised LCR’s compliance deadline to September 16, 2024. 86 Fed. Reg. 14063. According to EPA, this action would ensure that drinking water systems and primacy states continue to have the full three years provided by the SDWA to take actions needed to assure regulatory compliance. Comments on the proposed rule are due April 12, 2021.

EPA Proposes Revisions To UCMR 5 For Public Water Systems And Announces Public Meeting: On March 11, 2021, EPA proposed an SDWA rule that would require public water systems to collect national occurrence data for 29 PFAS and lithium. 86 Fed. Reg. 13846. According to EPA, the proposed rule would require all community and non-transient non-community water systems serving 3,300 or more people, and a representative sample of smaller water systems, to conduct monitoring. EPA notes that PFAS and lithium are not currently subject to national primary drinking water regulations, and EPA proposes to require the collection of drinking water occurrence data to inform EPA decisions. EPA is also announcing two public meetings (via webinar) to discuss this proposal of the fifth Unregulated Contaminant Monitoring Rule (UCMR 5). The number of webinar connections available for the meeting is limited and will be available on a first-come, first-served basis. Further details about registration and participation can be found on EPA’s Unregulated Contaminant Monitoring Program Meetings and Materials web page. Comments are due April 12, 2021.

EPA Amends General Provisions For NESHAP To Remove Certain Exemptions From Emission Standards During SSM Periods: On March 11, 2021, EPA amended the Code of Federal Regulations (C.F.R.) to reflect a court order regarding the General Provisions for NESHAP issued on December 19, 2008, by the U.S. Court of Appeals for the District of Columbia Circuit. 86 Fed. Reg. 13819. The court vacated two provisions in the General Provisions that exempted sources from hazardous air pollutant (HAP) non-opacity and opacity emission standards during periods of startup, shutdown, and malfunction (SSM). The court held that under the Clean Air Act (CAA), emissions standards or limitations must be continuous in nature and that the SSM exemptions in these two provisions violate this requirement. The final rule amended these two NESHAP General Provisions to conform to the court’s order. The final rule was effective on March 11, 2021.

EPA Reopens Comment Period On Notice Of Data Availability For Reconsideration Of Beneficial Use Criteria And Provisions For Piles Of CCR: On March 12, 2021, EPA reopened the comment period on the notice of data availability for its reconsideration of the beneficial use criteria and provisions for piles of coal combustion residuals (CCR). 86 Fed. Reg. 14066. EPA published the original notice of data availability on December 22, 2020, with a 60-day public comment period closing February 22, 2021. EPA reopened the public comment period for an additional 60 days, to May 11, 2021.

FDA

Materials From FDA’s Food Traceability Public Meetings: On February 12, 2021. FDA announced the publication of materials from three Food Traceability Public meetings held at the end of 2020. The purpose of the meetings was to discuss and encourage public engagement with the proposed “Requirements for Additional Traceability Records for Certain Foods” rule.

FDA Issues Letter To Industry On Chemical Hazards: On March 5, 2021, FDA issued a letter to industry on its efforts to reduce toxic elements in foods for babies and young children. FDA notes that levels of heavy metals in food depends on a variety of factors, including growing conditions, manufacturing and agricultural processes, past or current environmental contamination, and the inherent ability for crops to take up elements. The letter focuses on Food Safety Modernization Act (FSMA) rules, including Current Good Manufacturing Practices, Hazard Analysis, and Risk-Based Preventive Controls for Human Food, and reminds food manufacturers and processors of their responsibilities under these rules.

NANOTECHNOLOGY

OECD Publishes Developments On The Safety Of Manufactured Nanomaterials In Tour De Table: The Organization for Economic Cooperation and Development (OECD) has published the latest edition of the Developments in Delegations on the Safety of Manufactured Nanomaterials -- Tour de Table. The Tour de Table compiles information provided by delegations on the occasion of the 20th meeting of the OECD Working Party on Manufactured Nanomaterials (WPMN) in September 2020. Highlights from the Tour de Table are available in our February 19, 2021, blog item.

EUON Publishes Nanopinion On Using eREACHNano To Register Nanoforms Under REACH: On February 19, 2021, the European Union (EU) Observatory for Nanomaterials (EUON) published a Nanopinion entitled “eREACHNano helps you to register nanoforms under REACH” by Dorte Rasmussen, Ph.D., who has been working on the exposure and risk assessment of chemicals at DHI A/S for almost 25 years. Rasmussen describes eREACHNano, a tool developed to explain Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation requirements for nanoforms. More information is available in our February 22, 2021, blog item.

VdMi Publishes Comparative Compilation Of Nano Definitions And Their Consequences: The Verband der Mineralfarbenindustrie e. V. (VdMi), which represents German manufacturers of inorganic, organic, and metallic pigments, fillers, carbon black, ceramic and glass colors, food colorants, artists’ and school paints, masterbatches, and products for applied photocatalysis, has published a “Comparative Compilation of relevant nano definitions in different regulations and their corresponding consequences.” VdMi intends the compilation “to provide an initial overview of the nano-definitions implemented in the various EU regulations and their differences, as well as -- according to our interpretation -- the resulting consequences for the products concerned.”

NIEHS-Funded Study Finds Graphene Nanochannel Filters Hold Promise For Contaminant Clean-Up: The March 2021 issue of Environmental Factor, a monthly newsletter published by the National Institute of Environmental Health Sciences (NIEHS), includes an item entitled “New graphene nanochannel filters hold promise for contaminant clean-up.” According to the item, an NIEHS-funded study found a new strategy to design nanomaterials to filter contaminants better from water. More information is available in our March 3, 2021, blog item.

France Recommends OELs For Titanium Dioxide Nanoparticles: On March 4, 2021, the French Agency for Food, Environmental and Occupational Health and Safety (ANSES) announced that it is recommending an eight-hour occupational exposure limit (OEL) of 0.80 micrograms per cubic meter (µg/m3) for titanium dioxide nanoparticles. Due to the lack of available data on the immediate or short-term effects of titanium dioxide nanoparticles, in accordance with its methodological guide, ANSES states that it also recommends not exceeding the concentration of 4.0 µg/m3 over a 15-minute period. More information is available in our March 11, 2021, blog item.

EC Committee Publishes Final Opinion On Copper (Nano) And Colloidal Copper (Nano): On March 5, 2021, the European Commission’s (EC) Scientific Committee on Consumer Safety (SCCS) published its final opinion on copper (nano) and colloidal copper (nano). For three different copper nanomaterials, notification files were provided. The final opinion states that for all three copper nanomaterials, “the notified files were insufficient regarding their characterisation and for conducting a safety evaluation.” Most files contained declarations of safety without any supporting data or documentation, however, and based on the provided information, the final opinion states that it is not possible to perform a safety assessment on them. More information is available in our March 8, 2021, blog item.

Registration Opens For NNI Webinar On “What We Know About NanoEHS: Human Exposure”: Registration is open for the U.S. National Nanotechnology Initiative’s (NNI) March 23, 2021, webinar on “What We Know About NanoEHS: Human Exposure.” The webinar will feature experts from diverse disciplines to share their perspectives on key findings in quantifying and assessing the effects of human exposure to nanomaterials. More information is available in our March 4, 2021, blog item.

BIOBASED/RENEWABLE PRODUCTS

B&C® Biobased And Sustainable Chemicals Blog: For access to a summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go to http://blog.braginfo.org.

LEGISLATIVE

Congressional Biofuels Caucus Reintroduces Renewable Fuel Standard Integrity Act: On February 19, 2021, Representatives Angie Craig (D-MN) and Dusty Johnson (R-SD) led Co-Chairs of the Congressional Biofuels Caucus in reintroducing bipartisan legislation intended to ensure transparency and predictability to EPA’s small refinery exemption (SRE) process. According to Craig’s February 19, 2021, press release, the Renewable Fuel Standard (RFS) Integrity Act would require small refineries to submit a petition for an RFS hardship exemption by June 1 of each year, allowing EPA to account properly for exempted gallons in the annual Renewable Volume Obligations set each November. The bill would also increase transparency by mandating the public disclosure of data surrounding SREs, “a process that has previously been carried out behind closed doors with little to no congressional oversight.” The press release states that the bill is supported by the National Corn Growers, Growth Energy, Fuels America, the Renewable Fuels Association, the National Biodiesel Board, the American Soybean Association, POET, the American Farm Bureau Federation, the National Farmers Union, and other groups dedicated to protecting and strengthening the RFS.

Gillibrand Announces PFAS Firefighter Protection Act: On February 22, 2021, Senator Kirsten Gillibrand (D-NY) announced the PFAS Firefighter Protection Act. The PFAS Firefighter Protection Act would ban the manufacture, importation, and sale of all firefighting foam containing PFAS within two years of enactment. It also sets deadlines for airports for prohibiting the use of PFAS firefighting foams. Gillibrand’s press release notes that current law states that the Federal Aviation Administration (FAA) shall not require airports to use firefighting foam that contains PFAS. The legislation would prohibit its use by 2024.

Legislation Reintroduced To Reduce Carbon Pollution From National Highway System: On February 23, 2021, the Senate Committee on Environment and Public Works announced that Senator Tom Carper (D-DE), Chair of the Committee , joined Senator Ed Markey (D-MA) and Representative Jared Huffman (D-CA) to reintroduce the Generating Resilient, Environmentally Exceptional National (GREEN) Streets Act. According to the Committee, the legislation would establish national goals to reduce greenhouse gas emissions from the National Highway System and help states adapt their transportation systems to the adverse effects of climate change.

House Passes Protecting America’s Wilderness And Public Lands Act: On February 26, 2021, the House passed the Protecting America’s Wilderness and Public Lands Act (H.R. 803) by a vote of 227 to 200. The bill is a package of eight separate measures concerning public lands in Arizona, Colorado, California, and Washington. The bill would designate approximately 1.49 million acres of public land as wilderness and incorporates more than 1,000 river miles into the National Wild and Scenic Rivers System. The bill would also withdraw more than 1.2 million acres of public land from new oil and gas and mining claims. On February 23, 2021, the Office of Management and Budget (OMB) issued a Statement of Administration Policy stating that the Biden-Harris Administration “strongly supports” House passage of the bill.

CLEAN Future Act Introduced In The House: On March 2, 2021, Representatives Frank Pallone, Jr. (D-NJ), Chair of the House Committee on Energy and Commerce, Paul Tonko (D-NY), Chair of the Environment and Climate Change Subcommittee, and Bobby L. Rush (D-IL), Chair of the Energy Subcommittee, introduced the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act, “ambitious new climate legislation that ensures the United States acts aggressively to tackle the climate crisis this decade and achieve net zero greenhouse gas pollution.” According to the Committee’s March 2, 2021, press release, the CLEAN Future Act would achieve net zero greenhouse gas pollution no later than 2050, with an interim target of reducing pollution by 50 percent from 2005 levels no later than 2030. The bill includes both sector-specific and economy-wide solutions intended to meet those targets, “offering a sweeping set of policy proposals that will put the United States on the path to a cleaner and more economically prosperous future.” The Energy and Commerce Subcommitte on Environment and Climate Change will hold a legislative hearing on the bill on March 18, 2021.

Bipartisan Fair Returns For Public Lands Act Introduced In The Senate: On March 10, 2021, Senators Jacky Rosen (D-NV) and Chuck Grassley (R-IA) announced the introduction of the bipartisan Fair Returns for Public Lands Act, legislation intended to “update the nation’s outdated public lands royalty system and ensure that taxpayers and our rural communities get fair returns on leases of public lands for oil and gas production.” The bill would set a uniform federal royalty at 18.75 percent that would be applied to new oil and gas leases. According to Rosen’s press release, the Congressional Budget Office estimated that this royalty would raise $200 million in federal revenue over the next ten years, with an equivalent amount returned to the states where the oil or gas is being extracted. The bill will also increase the rates for reinstated oil and gas leases, “which will discourage oil and gas developers from holding onto leases on public lands they do not intend to actually explore or develop.”

House Committee Holds Hearing On “Restoring the Vital Mission of EPA”: On March 10, 2021, the House Energy and Commerce Subcommittee on Oversight and Investigations held a hearing on “The Path Forward: Restoring the Vital Mission of EPA.” According to the March 7, 2021, memorandum from Representative Frank Pallone, Jr. (D-NJ), Chair of the Committee, to the Subcommittee, EPA’s current responsibilities include reviewing national air pollution standards and overseeing or carrying out cleanups at most of the 1,327 sites on the Superfund’s National Priorities List. TSCA and other laws require EPA to address threats and contamination from chemicals, including PFAS. In addition, EPA is also responsible for addressing the health impacts that disproportionately affect low-income communities, communities of color, and fence-line communities situated near industrial plants. The memorandum notes that the previous Administration eliminated or weakened more than 170 environmental protections, impairing EPA’s ability to address pressing environmental challenges. Finally, according to the memorandum, continuing budget and staffing pressures also are impacting EPA’s capacity. The memorandum states that “[d]espite having fewer programs to administer at the time, EPA’s budget in 1980 was fifty percent higher in inflation-adjusted dollars than it is today. Between fiscal years 2015 and 2018, staffing levels at EPA declined by nearly 2,500 full-time equivalent positions.” The memorandum notes that more departures may occur in the coming years, with nearly 40 percent of EPA now eligible for retirement. For more information on the hearing, please read the full memorandum.

House Committee Holds Hearing On Science Behind Impacts Of The Climate Crisis: The House Committee on Science, Space, and Technology held a hearing on March 12, 2021, on “The Science Behind Impacts of the Climate Crisis.” Witnesses included: Dr. Michael Oppenheimer, Albert G. Milbank Professor of Geosciences and International Affairs, Princeton University; Dr. Zeke Hausfather, Director of Climate and Energy, The Breakthrough Institute; Dr. Noah S. Diffenbaugh, Kara J. Foundation Professor, Department of Earth System Science, Kimmelman Family Senior Fellow, Woods Institute for the Environment, Stanford University; and Dr. Paula S. Bontempi, Dean, Graduate School of Oceanography, Professor of Oceanography, University of Rhode Island.

Senate Committee Will Hold Hearing On Challenges Facing Drinking Water And Waste Water Infrastructure Projects: The Senate Committee on Environment and Public Works will hold a March 17, 2021, joint hearing of the full Committee and the Subcommittee on Fisheries, Water, and Wildlife entitled “Examining the Challenges Facing Drinking Water and Waste Water Infrastructure Projects.”

House Subcommittee Will Hold Hearing On “Brain Drain: Rebuilding the Federal Scientific Workforce”: The House Science, Space, and Technology Subcommittee on Investigations and Oversight will hold a hearing on March 17, 2021, on “Brain Drain: Rebuilding the Federal Scientific Workforce.” Witnesses will include Dr. Andrew Rosenberg, Director of the Center for Science and Democracy, Union of Concerned Scientists; Max Stier, President and Chief Executive Officer, Partnership for Public Service; and Dr. Betsy Southerland, Former Director of Science and Technology, Office of Water, EPA.

MISCELLANEOUS

Draft NTP Technical Reports On Sodium Tungstate Dihydrate, Di-N-Butyl Phthalate, And Di(2-Ethylhexyl) Phthalate Available For Comment: On February 27, 2021, the National Toxicology Program (NTP) announced the availability of the Draft NTP Technical Reports on sodium tungstate dihydrate, di-n-butyl phthalate, and di(2-ethylhexyl) phthalate scheduled for peer review. 86 Fed. Reg. 9947. A peer review meeting on the draft Technical Reports will be held remotely on April 2, 2021. Written comments are due March 19, 2021. Registration to present oral comments at the meeting will close March 26, 2021. Registration to view the meeting will be open until April 2, 2021.

President Biden Signs Executive Order On America’s Supply Chain: On February 24, 2021, President Joseph Biden signed an Executive Order (EO) on America’s Supply Chains. 86 Fed. Reg. 11849. The fact sheet on the EO directs an immediate 100-day review across federal agencies to address vulnerabilities in the supply chains of four key products: active pharmaceutical ingredients; critical minerals; semiconductors and advanced packaging; and large capacity batteries. The EO also calls for a more in-depth one-year review of a broader set of U.S. supply chains. The one-year review will include a focus on six key sectors: the defense industrial base; the public health and biological preparedness industrial base; the information and communications technology (ICT) industrial base; the energy sector industrial base; the transportation industrial base; and supply chains for agricultural commodities and food production. The EO directs the Biden-Harris Administration “to consult widely with outside stakeholders, such as those in industry, academia, non-governmental organizations, communities, labor unions, and State, local, territorial, and Tribal governments.”

SEC Issues Statement On Review Of Climate-Related Disclosure: On February 24, 2021, Allison Herren Lee, Acting Chair of the U.S. Securities and Exchange Commission (SEC), issued a statement on the SEC’s review of climate-related disclosure. Lee has directed SEC’s Division of Corporation Finance to enhance its focus on climate-related disclosure in public company filings. In 2010, SEC provided guidance to public companies regarding the application of existing disclosure requirements to climate change matters. According to the statement, as part of its enhanced focus in this area, SEC staff will review the extent to which public companies address the topics identified in the guidance, assess compliance with disclosure obligations under the federal securities laws, engage with public companies on these issues, and absorb critical lessons on how the market is currently managing climate-related risks. The statement notes that SEC staff “will use insights from this work to begin updating the 2010 guidance to take into account developments in the last decade.”

USDA Reopens Comment Period On ANPRM Regarding Movement Of Animals Modified Or Developed By Genetic Engineering: On March 8, 2021, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced that it will reopen the comment period on its December 8, 2020, advance notice of proposed rulemaking (ANPRM) on establishing regulations for the movement of certain animals modified or developed by genetic engineering. 86 Fed. Reg. 13221. Under the regulatory framework being contemplated, the USDA would promulgate regulations using the authorities granted to it through the Animal Health Protection Act, the Federal Meat Inspection Act (FMIA), and the Poultry Products Inspection Act (PPIA). Pursuant to these authorities, APHIS would conduct a safety assessment of animals subject to the FMIA or PPIA that have been modified or developed using genetic engineering that may increase the animal’s susceptibility to pests or diseases of livestock, including zoonotic diseases, or ability to transmit the same. The Food Safety and Inspection Service would conduct a pre-slaughter food safety assessment to ensure that the slaughter and processing of certain animals modified or developed using genetic engineering would not result in a product that is adulterated or misbranded. Comments are due May 7, 2021.

Michael S. Regan Sworn In As EPA Administrator: On March 11, 2021, Michael S. Regan was sworn in as EPA Administrator. According to EPA’s March 11, 2021, press release, on his first day, Regan “committed to working closely with and supporting EPA's dedicated career public servants, restoring the role of science and transparency, addressing climate change, and prioritizing environmental justice.” The press release notes that Regan is the first Black man and the second person of color to lead EPA. Regan began his career at EPA, rising to the role of national program manager responsible for designing strategic solutions with industry and corporate stakeholders to reduce air pollution, improve energy efficiency, and address climate change. Prior to his nomination as EPA Administrator, Regan served as the Secretary of the North Carolina Department of Environmental Quality (DEQ). The press release states that as Secretary, Regan “spearheaded the development and implementation of North Carolina’s seminal plan to address climate change and transition the state to a clean energy economy.” Under Regan’s leadership, DEQ secured the largest coal ash clean-up in U.S. history and led complex negotiations regarding the clean-up of the Cape Fear River, which had been contaminated for years by PFAS. In addition, Regan established North Carolina’s first-of-its-kind Environmental Justice and Equity Advisory board to align better social inequities, environmental protection, and community empowerment.

EPA Announces Availability Of Systematic Review Protocol For The Inorganic Mercury Salts IRIS Assessment: EPA announced on March 11, 2021, a 30-day public comment period associated with release of the Systematic Review Protocol for the Inorganic Mercury Salts IRIS Assessment. 86 Fed. Reg. 13895. According to EPA, this document communicates the rationale for conducting the assessment of inorganic mercury salts, describes screening criteria to identify relevant literature, outlines the approach for evaluating study quality, and describes the methods for dose-response analysis. Comments are due April 12, 2021.

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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