Significant Activity Follows US EPA’s TSCA Asbestos Risk Evaluation

The US Environmental Protection Agency’s (EPA’s) December 30, 2020 issuance of its risk evaluation for asbestos under Section 6 of the Toxic Substances Control Act (TSCA) has generated considerable attention and activity, which will likely keep interested parties and the courts busy for quite some time.

As background, TSCA Section 6 requires EPA to prepare risk evaluations for “high priority” chemical substances that “may present an unreasonable risk of injury to health or the environment.”   Asbestos was selected as one of the “first ten” substances to undergo risk evaluation, as required by the 2016 TSCA amendments, without consideration of costs or other non-risk factors.

The processes for prioritizing and evaluating a chemical substance’s risk to health and the environment were set forth in EPA’s 2017 Risk Evaluation Rule, which requires evaluation of a chemical’s “conditions of use,” or “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”  That rule was challenged and in late 2019, the Ninth Circuit Court of Appeals in Safer Chemicals, Healthy Families v. EPA, held that the rule could not exclude “legacy uses” (i.e., uses without ongoing or prospective manufacturing, processing, or distribution) or “associated disposals” (i.e., future disposal of legacy uses) from the risk evaluations.

In EPA’s asbestos risk evaluation, it concluded (as in the March 30, 2020 draft) that: (1) there is no unreasonable risk to the environment under any of the conditions of use, but that (2) there is an unreasonable risk to workers, occupational non-users, consumers and bystanders under certain conditions of use.  However, after considerable criticism from stakeholders and EPA’s Science Advisory Committee on Chemicals (SACC), EPA characterized the risk evaluation as “Part 1” since it focuses only on chrysotile asbestos, which the agency determined is the only asbestos fiber type imported, processed, or distributed under the conditions of use in the United States.  The other five fiber types included in TSCA’s definition of asbestos are subject to an April 25, 2019 significant new use rule (SNUR).  EPA has stated that it will conduct “Part 2” of the risk evaluation to address certain “legacy” uses and disposals of asbestos as required by the Ninth Circuit.

On January 26, a group of twelve environmental petitioners filed a Petition for Review with the Ninth Circuit challenging the Part 1 risk evaluation for its alleged failure to “consider the risks of other asbestos fibers, conditions of use, health effects and pathways of exposure that impact public health.”  Petitioners will also likely challenge EPA’s finding in Part 1 that 16 of 32 conditions of use did not pose an unreasonable risk to workers, consumers and bystanders, and try to convince the Ninth Circuit to require EPA to reexamine those findings.

Moreover, the environmental groups have mounted a two-front attack on the risk evaluation by separately giving notice on January 26 of their intent to sue under TSCA Section 20, charging that EPA failed to perform its non-discretionary duty to address the use and disposal of legacy asbestos in the risk evaluation, as well as challenging EPA’s lack of specifics about a future Part 2 evaluation and failure to set a schedule for completing it.  Petitioners’ Section 20 challenge would seek to impose a judicially-enforced deadline for evaluation of such legacy uses.

These legal challenges come on the heels of a December 22 decision from the Northern District Court of California, which held that EPA acted unlawfully in denying plaintiffs’ TSCA Section 21 citizen petitions asking EPA to require companies importing or using asbestos to report such information on those uses to the TSCA program under the Chemical Data Reporting (CDR) rule.  Finding that EPA’s rationale was “arbitrary and capricious,” the court ordered EPA to quickly amend its CDR rule to address these “deficiencies”.  However, on February 2, EPA filed a motion asking the Court to rescind its order that EPA amend the CDR rule and instead remand the matter back to EPA to reconsider the petitions in light of the Court’s opinion.

A big unanswered question raised in the context of the asbestos risk evaluation is whether — and how — the Biden EPA may alter its chemical risk evaluations moving forward.  The CDR rule decision in particular could pave the way for the new administration to revisit and/or supplement reporting requirements for asbestos.  The determination by the Trump EPA to conduct a “Part 2” supplemental risk evaluation of asbestos (instead of revising the initial risk evaluation) also may provide the Biden EPA a basis for “supplementing” the other Trump-era chemical evaluations, potentially evaluating additional conditions of use for those substances and addressing exposures to additional subpopulations (especially in light of the Biden Administration’s focus on environmental justice concerns).  In addition, the Biden Administration may utilize the risk-management rulemaking process to impose broader restrictions on substances than the “narrowly tailored” ones signaled by the Trump EPA.  President Biden also has ordered EPA to review a number of TSCA-related actions and rules, including the “framework” Risk Evaluation Rule.  On February 5, EPA announced that while it is moving forward with the risk management rulemakings for the first ten substances, the Agency is also “actively reviewing the final risk evaluations in light of statutory obligations and policy objectives related to use of the best available science and protection of human health and the environment, in accordance with the Executive Orders and other direction provided by the Biden-Harris Administration.” Consequently, the “first ten” risk evaluations under TSCA may be subject to further revision or unwinding.

Additionally, during a February 3 webinar hosted by EPA, it was clear that whatever action the agency takes regarding asbestos will be contentious. Environmental advocates pushed for a ban on asbestos, while industry representatives challenged EPA’s determination that certain uses posed unreasonable risks, including highlighting the differences in risk posed by materials with longer or shorter fiber types, claiming that the risk evaluation was overly conservative, and asserting that EPA’s cancer potency determinations were not supported by the most recent science.

EPA plans to issue the draft scope document in mid-2021, followed by a final scope document, a draft risk evaluation for public comment, and then a final risk evaluation document.  According to EPA, the Part 2 risk evaluation will consider “legacy uses” and associated disposals for the six fiber types of asbestos included within TSCA’s definition of asbestos.

The above developments underscore that EPA’s asbestos risk evaluation will continue to be the focus of much attention over subsequent months.  Interested stakeholders should continue to monitor developments related to Part 1, while also preparing to engage in Part 2 opportunities in the near future.

The opinions expressed are those of the author and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates.  This article is for general information purposes and is not intended to be and should not be taken as legal advice.

The UK Environment Bill – How Will Air Quality Be Protected?

The Environment Bill, which is completing its passage through the UK parliament, represents the government’s vision of a framework for environmental regulation and governance in the UK post-renewable wind energyBrexit.  The government has promised that the Bill will deliver cleaner air for all, but how will this ambition be achieved and what happens if it is not?  

Find out more as Rob Biddlecombe and Anita Lloyd, from Squire Patton Boggs’ environmental, safety and health practice put the Environment Bill under the microscope in this article for Air Quality News magazine.

 

2021 Women in Energy & Environment Webinar Series

turbine

In January, our four-part 2021 Women in Energy & Environment Webinar Series reached an industry-leading, global audience of more than 450 professionals. The series covered the following key and emerging issues facing the global regulated community today:

  • Embedding Environmental, Social and Corporate Governance Into the New Normal – Returning From the Pandemic
  • Key Regulatory Issues in the UK in Environment and Sustainability: 2021 and Beyond
  • Looking Ahead to 2021: Implications of a Change in Administration on Environmental Policy in the US
  • Key Regulatory Issues in the US in Energy and Environment: 2021 and Beyond

You can access the full benefits of this series via this placemat, which provides links to the recording and presentation materials of each session.  Information for all of the presenters is also available via their hyperlinked bios should you have any questions.

We look forward to seeing you attend future programs as we continue highlighting energy and environmental developments in 2021 and beyond.  We also welcome your feedback.  Please reach out to Christopher Timms with any general questions or comments.

Developments in Mobile Source Regulation: US EPA’s Updated Tampering Policy

The second half of 2020 sped by with all the fleetness of a supercharged truck.  In case you missed it, Squire Patton Boggs has provided a recap of the Agency’s revised tampering policy as well as trends in the broader industry.  Although we expect the new administration to lead to changes in approach to mobile source regulation, the tampering policy is likely to remain in place since it is an integral part of the Agency’s National Compliance Strategy on aftermarket defeat devices.  In 2020, for example, the US EPA reported resolving 31 civil enforcement cases related to tampering and aftermarket defeat devices – “the most for any one year in the agency’s history.”

Looking to the future, several manufacturers in the industry are also planning for a post-diesel market. Recently, seven of the largest truck manufacturers in Europe announced that they would eliminate the use of diesel by 2040 – including, for one manufacturer, the intention to have carbon neutral manufacturing in its North American facilities by approximately 2025.  As manufacturers plan for the future, an expected priority will be to push for unified regulatory standards at the state and federal level, especially as the California Air Resources Board (CARB) advances initiatives and rulemaking designed to reduce emissions from heavy-duty and off-road vehicles and engines.

US EPA Tampering Policy

In late November 2020, US EPA issued a new civil enforcement policy for violations of 42 USC § 7522(a)(3), § 7547(d), and 40 CFR § 1068.101(b)(1)-(2), which address the prohibitions against tampering with vehicle emission control systems and the sale/installation/use of aftermarket defeat devices.  The purpose of the policy is to supersede and replace the long-time US EPA Mobile Source Enforcement Memo 1A from June 1974.  Memo 1A was originally issued to provide guidance and clarity as to the Agency’s plans for enforcing the Clean Air Act tampering prohibition in the context of aftermarket parts.

The foundation of the original policy was that US EPA will exercise enforcement discretion for persons with a documented reasonable basis that the tampering action in question does not adversely affect emissions performance.  This remains consistent in the new policy but with a more detailed description of how one can establish such a reasonable basis across six categories:

  • Identical to Certified Configuration;
  • Emissions Testing for Replacement After-Treatment Systems for Older Vehicles, Engines, and Equipment;
  • New After-Treatment Systems that Decrease Emissions;
  • Emissions Testing;
  • EPA Certification (conduct certified under 40 CFR Part 85, Subpart V); and
  • CARB Certification (Exemptions for emissions-related design elements).

US EPA qualifies the list is meant to be “illustrative and is not exhaustive.” For example, for a replacement part identical to the certified configuration, the Agency directs the part manufacturer should document that the replacement part will perform identically to the OEM part being replaced and have available either (1) documentation the replacement part is identical in all emission-related aspects (i.e.,  engineering drawings) or (2) test results supporting the representation.

The revised policy also provides more clarity on what it does not apply to, additional categories of vehicle and fuel types, and updated technology references. For example, the new policy addresses that modern vehicles and engines are equipped with electronic control units (ECUs) and tampering with such a control system, such as with the use of tuners, could constitute an illegal defeat device and/or tampering.  Parts or components that also change onboard diagnostic (OBD) systems may fall into the category of an illegal defeat device, and a delete kit is provided as an example. However, the Agency explicitly clarifies in the revised policy that its enforcement discretion for documenting a reasonable basis “does not apply, however, to conduct affecting an OBD system, which may be subject to enforcement regardless of effect on emissions.”

While this policy can help provide a basis for aftermarket industry participants to reduce the risk of Agency enforcement, it should be cautioned that many states have their own regulatory systems addressing tampering and defeat devices. The policy cautions that it addresses only the federal Clean Air Act and “[m]any states also have laws prohibiting tampering with in-use vehicles, and some states also prohibit dealers from selling tampered in-use vehicles.” The policy does not affect compliance with such state and local laws, as applicable.

This revised policy is in line with the Agency’s recent focus on tampering initiatives as part of its National Compliance Initiative for aftermarket defeat devices. The Agency’s Air Enforcement Division completed and released a study entitled Tampered Diesel Pickup Trucks: A Review of Aggregated Evidence from EPA Civil Enforcement Investigations.  The report is intended to inform both US EPA and state partners of the impact that tampering has and the results of numerous civil investigations. The report identifies that more than 550,000 diesel trucks have been tampered with in the last decade resulting in an estimated “more than 570,000 tons of excess oxides of nitrogen (NOx) and 5,000 tons of particulate matter (PM).”

CARB

On the state level, California Air Resources Board formally approved its Heavy-Duty Low NOx Omnibus rulemaking during a hearing on August 27, 2020. Squire Patton Boggs previously discussed the proposed rule in this article, and the requirements approved at the August meeting are consistent with the June 2020 proposal.

CARB also issued a draft Mobile Source Strategy in late November 2020. For on-road heavy duty vehicles, CARB highlighted the passage of the Omnibus rulemaking as well as its regulations on zero-emission trucks and buses. CARB explains that “[t]aken together, these requirements ensure lower NOx emissions over a more comprehensive range of vehicle operation.” For off-road vehicles and equipment, CARB identified a list of strategies it may consider to reduce air pollutants and GHG emissions in the sector. One example under consideration includes introduction of “more stringent emission standards such as Tier 5 to reduce emissions from new internal combustion engines, and OBD standards to ensure emissions from those engines” meet expectations through the engine’s useful life. Where feasible, CARB also intends to look for areas to implement zero-emission technologies in the off-road sector.

The opinions expressed are those of the author and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates.  This article is for general information purposes and is not intended to be and should not be taken as legal advice.

January 2021 Update: frESH Law Horizons: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Our Environmental, Safety & Health team is pleased to share with you the latest edition of our monthly newsletter, frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law and Procedure; providing bite-size updates on EU and UK law, procedure and policy.

This month’s edition includes the following:

  • New regulator for construction products
  • Poundstretcher is fined for allergen labelling offences
  • Modern Slavery recommendations for financial services
  • Possible manslaughter charge following a Smart Motorway death
  • The HSE and DEFRA update their chemicals Brexit guidance
  • EA issues a position statement to allow increased storage of plastic waste following export rule changes
  • President Joe Biden commits the US to re-joining the Paris Agreement
  • Government publications and consultations issued on low-carbon buildings
  • Environment Bill is delayed again
  • UK Government consults on “Best Available Techniques” – A future regime within the UK preventing or minimising impacts on the environment from industry
  • EU Court requires the European Investment Bank (EIB) to review a decision to finance a biomass power generation plant
  • European Chemicals Agency is to revoke at least 2,900 REACH registrations held by UK companies
  • UK company sues the EU over the Single-use Plastics Directive
  • European authorities to check compliance with authorisations and regarding recovered substances
  • European Commission says that half of green claims lack evidence

For more detailed information on these developments, download a copy from our website.  You can also subscribe to ensure that you receive our most recent edition each month.

What Automakers Should Expect From Biden’s DOT

Under the Biden administration, the U.S. Department of Transportation is likely to be more active in setting federal standards for vehicle safety, fuel economy and emissions, and to return to more robust safety enforcement, so automakers should update compliance programs and foster constructive relationships with regulators, write Patricia Doersch and Callan Smith in this January 25, 2021, article for Law360.

President Biden Signs Executive Order on Protecting Worker Health and Safety

White HouseOn Thursday, January 21, President Joe Biden signed an Executive Order that directed the Occupational Safety and Health Administration (OSHA) to issue guidance to employers on protecting workers from COVID-19, including protecting workers from COVID-19 under the Occupational Safety and Health Act and protecting other categories of workers from COVID-19.  In this alert we outline the key provisions of the order.

WARNING: California Prop 65 Enforcement of THC Listing from CBD Products Became Effective January 3, 2021

CBD ProductsAs of January 3, 2021, the one-year grace period to comply with the California Prop 65 Clear and Reasonable Warning requirements for delta-9-tetrahydrocannabinol (known as THC) came to a close and the enforcement period has now begun.  OEHHA, the enforcing agency for Prop 65, added THC to the Prop 65 chemicals list last year on January 3, 2020.  It is listed as a chemical known to cause reproductive harm.

As many in the CBD-industry are likely aware, Cannabis (Marijuana) Smoke was added to the Prop 65 chemicals list as a carcinogen in 2009 and enforcement of the Clear and Reasonable Warning requirements began thereafter.  However, in January 2020, it was also classified as a reproductive toxin. Enforcement of the Clear and Reasonable Warning requirements specifically for reproductive toxicity from CBD (Marijuana) Smoke began on January 3, 2021 as well.

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Talk to the Experts Virtual Discussion Forum: Future of Plastics

With heightened public awareness around single-use plastics, and ever-evolving sustainability and circular economy policies, many boardrooms across Europe and beyond have been placing these issues high on their agendas. In addition, there are significant changes ahead for the plastics producing, recycling and using industries in 2021.

Gloria Gabellini, director of Environmental Policy at PepsiCo, and Jens Kathmann, secretary general at Styrenics Circular Solutions, will be joined by our own experts, Anita Lloyd, director, and Ken Huestebeck, senior associate, to explore some of the forthcoming regulatory policy proposals on plastics recycling in the EU and the UK that will impact businesses.

Tony Reed, EMEA chair of the global Corporate Practice, will introduce the speakers and Matthew Kirk, international affairs advisor, will host the discussion.  Questions will be invited from the audience before and during this discussion.

This Talk to the Experts Forum will be on Thursday 14 January 2021 from 2-3 pm GMT.

The Future of Green Energy – UK Perspective

renewable wind energyClimate Policy, Automation, Climate and Ethics (PACE) are at the heart of significant global changes that in turn affect corporate behaviours and governance.

On 23 November 2020, we hosted a panel discussion on The Future of Green Energy.  Joined by The Rt. Hon. Kwasi Kwarteng, Richard Gwilliam at Drax, Helen Boyle at Cadent Gas, Victoria Merton at Peel Group and Steve Cox at Electricity North West, our panel explored the future of green energy and the challenges faced by the industry, as well as highlighted the significance of the “green industrial revolution” in fuelling economic recovery.

In this article, we have summarised the key themes of the discussion, and you can also view a recording of the full debate.  Continue Reading

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