On August 11, 2017, the Office of the Federal Register published the third of EPA’s three rules implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule). We reported on the two previously published rules as well as a pre-publication version of the Active/Inactive Rule here. As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA with regard to chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016. The Active/Inactive Rule also sets forth the logistics for submitting the notifications, potential exceptions from the notification requirements, and procedures for handling confidential business information (CBI).
On July 20, 2017, EPA published in the Federal Register two final rules intended to begin implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which significantly reformed the Toxic Substances Control Act (TSCA). The two final rules are the Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, 82 Federal Register 33753 (Prioritization Rule) and Procedures for Chemical Risk Evaluation under the Amended Toxic Substances Control Act, 82 FR 33726 (Risk Evaluation Rule). A third TSCA framework rule—the TSCA Inventory Notification (Active/Inactive) Requirements rule (Inventory Rule)—has not yet been published in the Federal Register, although a pre-publication version was released in June 2017 (we previously reported on all three proposed rules here). Together, these three rules will help the Agency implement the extensive reforms set out in motion by the Lautenberg Act.
The Prioritization Rule and the Risk Evaluation Rule will become effective on September 18, 2017. Upon publication of the Active/Inactive Final Rule in the Federal Register – which EPA has indicated will become effective upon publication – a 180-day clock will be triggered for affected manufacturers, and affected processors must comply within 420 days of publication.
Finally, EPA published the notice of availability of Guidance to Assist Interested Persons in Developing and Submitting Draft Risk Evaluations, a guidance document intended to assist stakeholders with developing and submitting their draft risk evaluations, and has uploaded draft scoping documents for the first ten chemicals for which EPA is required to perform risk evaluations under the Lautenberg Act to its website (EPA’s initiation of the risk evaluation for these ten chemicals was previously discussed here).
On July 25, California Governor Jerry Brown signed into law Assembly Bill 398, an extension of California’s greenhouse gas (GHG) cap-and-trade program through 2030. Eight days after being introduced, AB 398 passed the California Legislature with a two-thirds majority vote of 55-22 in the Assembly and 28-12 in the Senate. AB 398 implements California’s goal of reducing GHG emissions to 40 percent below 1990 levels by 2030, which was codified in SB 32, a bill signed by Governor Brown last year.
On July 21, 2017, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) proposed amendments to the regulations implementing Prop 65 – the California law that requires business to provide a “clear and reasonable warning” to consumers on products that contain any chemicals listed by California as causing cancer or reproductive harm. According to OEHHA, these amendments are intended to clarify a previous round of amendments that were finalized in August 2016 that will become effective on August 30, 2018, discussed here .
On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act (“FOIA”) request. The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups’ arguments as opposed to the three judge panel that originally heard the case.
Law360 announced Sue Charles, Russell Eggert and Trent Cornell have joined Troutman Sanders’ Environmental and Litigation Practices in its Chicago, IL office. The 3-person team was formerly with Lathrop & Gage. Charles and Eggert handle environmental risk in corporate mergers and acquisitions while Cornell represents trustees and retiree groups in large bankruptcy claims. These additions will strengthen the already deep Environmental and Natural Resources and Litigation practices as well as grow the firm’s Chicago presence. For the full article, visit Law360.com.”
California’s Supreme Court recently upheld the State’s greenhouse gas (GHG) cap-and-trade auction program. In a June 28, 2017 order, the Court denied petitions to review a lower court’s ruling that affirmed the program’s legality. Filed by a coalition of industry groups, including the California Chamber, the petitions had alleged that the cap-and-trade program constitutes an illegal tax under Proposition 13 because the law authorizing it, AB 32, was not passed by a two-thirds vote.
The DC Circuit issued a decision on July 3, 2017, vacating the 90-day stay of the Oil & Gas Industry NSPS rules – the first rules to regulate methane from that sector. In a June 5 Federal Register notice, the new Trump EPA stayed the rules pending reconsideration under Section 307(d) of the Clean Air Act. Environmental Groups filed an emergency challenge to the stay, asking for either a stay of that decision or summary vacatur of it. Issuing its decision less than a month later, the court vacated EPA’s stay of the rules.
Yesterday, the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit” or “the court”) vacated a federal district court’s order requiring EPA to account for the economic impacts of Clean Air Act (“CAA”) regulations. This decision stems from a suit filed by coal companies claiming that EPA had failed to perform a non-discretionary duty by completing continuous evaluations of job losses and plant closures resulting from CAA implementation or enforcement as required under Section 321 of the CAA. In a strongly worded opinion, the district court ordered EPA to come into compliance with the requirements of Section 321 by July 2017, an order that EPA subsequently appealed to the Fourth Circuit.
An Act that was recently passed by the General Assembly has limited the damages private parties can recover against agricultural or forestry operations in civil actions for nuisance claims.