EPA Extends Supply Chain Flexibilities to Producers of Food-Contact Surface Sanitizers During COVID-19 Pandemic

The Environmental Protection Agency (EPA or Agency) will now temporarily provide producers of sanitizers on EPA’s List N of products approved for use against SARS-CoV-2 meant for food-contact surfaces that contain the active ingredient isopropyl alcohol additional supply chain flexibilities during the COVID-19 pandemic. Specifically, EPA is temporarily permitting those sanitizer registrants to add additional registered sources of the active ingredient isopropyl alcohol to a formulation and also to set up approved pesticide manufacturing establishments through notification to the Agency (without prior EPA approval). EPA took this step after hearing from production facilities handling low-moisture products such as grains, cereal, flour and industrial baked goods that they are having difficulty acquiring food-contact surface sanitizers.


PFAS and the Toxics Release Inventory – New Reporting Obligations from the National Defense Authorization Act of 2020

As of January 1, 2020, companies have new obligations to report releases of per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) based on the National Defense Authorization Act (NDAA) for Reporting Year 2020. The NDAA added reporting obligations for 172 individual PFAS chemicals. This potentially impacts any company using any of these PFAS chemicals in their processes, including use of PFAS-containing firefighting foam for training and/or actual fire suppression. This webinar will address this change and also review recent updates to the general regulatory landscape for PFAS issues and practice pointers for TRI enforcement and voluntary disclosures to reduce liability.


, ,

EPA Outlines New Guidance Procedures, to Include Public Comment and Mechanism to Request Modification of Existing Guidance

The Environmental Protection Agency (EPA or Agency) has proposed new regulations to establish a transparent process for issuing future interpretive guidance documents. “Guidance” generally refers to memoranda, letters, bulletins or “frequently asked questions” Web pages that clarify EPA interpretations of regulations or Agency-administered programs and assist regulated entities with regulatory compliance. Historically, EPA has not issued guidance through an Administrative Procedure Act notice-and-comment process. Accordingly, courts have generally found that interpretive guidance is not legally binding in the same way as a promulgated and codified regulation. However, EPA does expect that regulated entities be familiar with interpretive guidance, and the public has not had a clear mechanism to challenge these documents.


Federal Energy Regulatory Commission Proposes Limiting Policy on Tariff Waivers

On May 21, 2020, FERC issued a policy statement to clarify its position regarding requests for waiver of tariff provisions.  If finalized, the Policy Statement would revise how FERC treats requests for waiver of tariff provisions.

The proposed policy relates to FERC’s statutory authority to review and approve public utility rates, as set forth in Federal Power Act (FPA) sections 205 and 206, and the parallel provisions in Natural Gas Act (NGA) sections 4 and 5.  FERC is concerned that its usual practice of waiving tariff provisions after the fact amounts to retroactive ratemaking in violation of the filed rate doctrine. (more…)


Safety, Health and Waste Issues with Reopening Businesses

On April 28, 2020, the U.S. Environmental Protection Agency (EPA) and Centers for Disease Control and Prevention (CDC) released joint guidance on reopening during/after the COVID-19 pandemic. The document covers cleaning practices and disinfection practices, citing the list of EPA-approved disinfectants for use against COVID-19. Of course, as businesses reopen, there are concerns about Occupational Safety and Health Standards as well as waste requirements for spent personal protective equipment (PPE).


Environmental Implications of President Trump’s Executive Order on Enforcement and Regulatory Relief

Earlier this week President Trump issued an executive order aimed at bolstering economic recovery as businesses reopen. This has potential for marked effects on environmental enforcement in light of how the Environmental Protection Agency and the Department of Justice have already been adapting environmental priorities in the face of the pandemic. (more…)

, ,

Ongoing Enforcement on Disinfectants for COVID-19

As previously featured, U.S. agencies have stepped up scrutiny and enforcement of pesticide law against substances purporting to kill the novel coronavirus that causes COVID-19. Recently the Federal Trade Commission (FTC) has also stepped up enforcement, sending letters to 45 companies regarding potentially misleading product claims about COVID-19, including various air and water filters that could violate pesticide law. Manufacturers, importers and retailers that deal in pesticide and pesticide devices should pay special attention to any antiviral claims on products in the current regulatory climate. (more…)

House Committee on Science, Space and Technology Responds to EPA’s Proposed Rulemaking on Transparency in Science

On Wednesday, May 6, Rep. Eddie Bernice Johnson, D-Texas, chairwoman of the House Committee on Science, Space and Technology, distributed a memo to the committee criticizing the U.S. Environmental Protection Agency (EPA) proposed rule to limit the use of scientific studies in agency decisions, highlighting topics Rep. Johnson argued EPA had not considered and questioned the legal authority for EPA’s approach. The memo follows EPA’s supplemental notice of proposed rulemaking published on March 18, following the original “Transparency in Science” proposal published in April 2018. Read more about the EPA March 18 supplemental “Transparency in Science” proposed rule here.

Eighth Circuit Affirms Discharge in Bankruptcy of Common Law Climate Change Claims

On May 6, in In re: Peabody Energy Corp., a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit held that certain climate-change-related claims had been discharged in Peabody Energy’s Chapter 11 bankruptcy plan. Three municipalities had brought state common law claims for negligence, trespass, nuisance and strict liability against energy companies, including Peabody, asserting that the companies contributed to global warming that has caused damage to the municipalities. (more…)

Interpretation of ARCO v. Christian Already Before Appellate Courts

Less than two weeks after the U.S. Supreme Court handed down its decision in Atlantic Richfield Co. v. Christian, the scope of the ruling is before the First and Ninth circuits. On April 28, 2020, Rhode Island and several California counties argued that Atlantic Richfield supported efforts to remand to state court lawsuits filed against energy producers seeking relief based on alleged contributions to climate change. Although these lawsuits do not address the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) — the statute at issue in Atlantic Richfield — the states’ supplemental filings assert that the Court’s jurisdictional holding means that these claims should proceed in state court. (more…)