EPA Moves to Revise Chemical Reviews
This month the U.S. Environmental Protection Agency (EPA) has issued two policy changes that will likely have substantial regulatory effects on chemicals and manufacturing sectors. First, EPA announced that it will reopen risk evaluations for certain high-priority chemicals that were completed under the last administration. Second, EPA announced changes to its new chemical review program to focus more on considering all conditions of use and worker protections for a chemical under review.
California Agency Proposes Listing PFOA as a Carcinogen under Proposition 65
Earlier this month, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed listing perfluorooctanoic acid (PFOA) as a carcinogen under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65. Under Proposition 65, OEHHA maintains a list of carcinogens and reproductive toxins, and businesses must generally provide “clear and reasonable” warnings prior to exposing anyone in California to a listed chemical, including through consumer, worker, or environmental exposures.
New Guidance on Self-Disclosure of Violations Under EPA’s Audit Policy
Last week, the U.S. Environmental Protection Agency (EPA) issued new guidance related to its policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (the Audit Policy), 65 Fed. Reg. 19618 (April 11, 2000). The new guidance, titled EPA’s Audit Policy Program: Frequently Asked Questions (the 2021 FAQ), provides an update to interpretive guidance from 1997, 2007, and 2015 for self-disclosure of potential noncompliance.
DOJ Environment and Natural Resources Division Withdraws Nine Guidance Documents From Trump Administration
Earlier this month, the Acting Assistant Attorney General supervising the Environment and Natural Resources Division (ENRD) at the U.S. Department of Justice (DOJ) has issued a memorandum rescinding nine policy or guidance documents issued for ENRD over the past three years. The documents generally concerned enforcement priorities and discretion and payments to third parties as part of settlements. The memorandum cites Executive Order 13,990, signed by President Joe Biden on January 20, 2021, which directs agencies to review agency agencies that may conflict with a range of environmental goals.
Environmental Justice Features in Early Biden Transition Planning
Earlier this month, U.S. President-elect Joe Biden announced multiple picks for the transition team with an environmental justice (EJ) focus. Leading the transition team for the Environmental Protection Agency (EPA) is Patrice Simms, who is vice president for healthy communities at Earthjustice. Simms has advocated for environmental enforcement focused on low-income communities and communities of color, and he has critiqued the Trump administration on the same topic. The transition team also includes alumni of the Obama administration with a reported record on EJ issues.
EPA Extends Deadline for Filing Under Chemical Data Reporting Rule to January 2021
The U.S. Environmental Protection Agency (EPA) has extended the deadline for submissions due under the Chemical Data Reporting (CDR) Rule from November 30, 2020, to January 29, 2021. The CDR report covers chemical manufacturing and processing for the four calendar years of 2016 through 2019. We have covered the scope and application of the CDR rule here.
California Air Resources Board Hosts Advanced Clean Cars Workshop
Earlier this month, the California Air Resources Board (CARB) hosted an Advanced Clean Cars (ACC) II Workshop to obtain public input on CARB’s development of ACC II regulations. The ACC II rules would be meant to contribute to meeting California’s carbon neutrality targets, advancing zero emissions vehicle (ZEV) technology, and reaching ozone targets under California’s State Implementation Plan. The workshop materials note that CARB views a need for deep reduction to light-duty vehicle emissions to address climate and air quality issues.
U.S. Legislators and Regulators Bring New Attention to PFAS
Late summer this year has brought a surge of activity related to per- and polyfluoroalkyl substances (PFAS). The U.S. Environmental Protection Agency (EPA) research office reported at an industry conference last week that it was evaluating ways to divide PFAS compounds into categories for purposes of risk assessment and risk management. This aligns with the approach supported by industry groups but conflicts with demands from environmental advocates that EPA study each compound separately. Because of the complexity and number of individual PFAS molecules, which number in the thousands, categorization would likely expedite the review process.
Infrastructure EO May Lead to Policy Reversals, Litigation
*Article first appeared in Bloomberg Law on June 18, 2020.
A new executive order seeks to accelerate federal approvals of infrastructure and development projects, relying on various emergency authorities in environmental statutes. The authors of this article say the scope of these provisions, as well as their interaction with other laws, is uncertain, and investors and developers should be cautious of potential judicial challenges.
What’s Next for EPA’s Review of Toxic Substances
Companies have started reporting their manufacture or imports of newly designated high-priority substances under the Toxic Substances Control Act—and paying EPA costs for evaluating the substances’ risk. Sidley lawyers explain the risk evaluation process and how companies can strategically engage with EPA on the scope of risk evaluations.