On November 15, 2022, the United States Environmental Protection Agency (US EPA) issued the pre-publication version of supplemental proposed rulemaking for reduction of methane emissions in the oil and natural gas sector. The original proposed rule, published on November 15, 2021, sought to strengthen methane standards for new sources (New Source Performance Standards or NSPS), establish nationwide emission guidelines (EG) for regulation of existing sources, and develop new standards for unregulated sources. US EPA ultimately received more than 470,000 public comments. The rules, once finalized, will be included in 40 CFR Part 60, Subpart OOOOb (NSPS) and Subpart OOOOc (EG).
The Automotive Recall Landscape in the US
As automotive technologies evolve, particularly in regard to autonomous vehicles (AVs), legislators struggle to keep pace. The lack of a binding legislative framework for AVs leaves regulators on their own in determining if and how to establish new safety standards. Here, we provide a general overview of recent legislative efforts, the National Highway Safety Administration’s (NHTSA) current regulatory approach for AVs and anticipated rulemakings, and strategies to reduce compliance risk while producing innovative automotive technologies.
US EPA Proposed Clean Air Act Endangerment Finding Targets Aviation Fuel
Lead was once a common additive in fuels, paints, glasses, batteries, pipes, ceramics, and more. As the health effects of lead exposure came to be better known, Congress and EPA began targeting lead pollution under a variety of laws and regulations governing air and water pollution, including the Toxic Substances Control Act, Residential Lead-Based Paint Hazard Reduction Act of 1992, Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act (CAA), among various other non-statutory initiatives such as the 2018 Federal Lead Action Plan. Lead exposure dropped dramatically as a result of these initiatives, but one industry still makes extensive use of lead-based products: aviation fuels for piston-engine aircraft which generate emissions that make up over half the country’s annual lead inventory.
On October 17, 2022, the United States Environmental Protection Agency issued a proposed finding that lead air pollution may reasonably be anticipated to endanger the public health and welfare within the meaning of Section 231(a) of the Clean Air Act, 42 U.S.C. § 7571, and further that engine emissions of lead from aircraft contribute to such pollution. This is a two-pronged “endangerment” and “cause or contribution” finding which addresses both elements provided under Section 231 which provides that EPA shall “issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” An endangerment and contribution finding is therefore the first step in the process of regulating lead emissions from aviation fuels. EPA often, but not always, combines these endangerment findings with the substantive regulations and emissions limitations but has not done so here.
UK Government Proposes 1,000 Fold Increase in Fines for Water Companies
The number of pollution incidents allegedly perpetrated by water companies in the UK has risen sharply in the last few years. On 3 October 2022, the UK Government shared proposals to raise the maximum cap on civil penalties for pollution incidents to unprecedented levels – from £250,000 up to £250 million per violation.
If retained by the Sunak Government, the proposals will be subject to consultation. If implemented, they would represent a 1,000-fold increase on current levels.
Why the increase?
China Publishes Draft List of Key New Pollutants under Pollutant Control Action Plan
We have been monitoring the progress China’s Ministry of Ecology and Environment (MEE) has been making on the goals set in its New Pollutant Control Action Plan, released in May 2022. One of the goals of the Plan was to release a list of key “new pollutants” for regulation and control, the categories of which would include persistent organic pollutants; endocrine disruptors; antibiotics; and microplastics, in 2022.
Just recently, the MEE released a draft list of key new pollutants and is soliciting public comment on the list by October 28, 2022. Instructions for making a public comment are available in the Notice. The complete list can be found here in Mandarin and here in English.
2022 Chemicals Workshop Webinar Series: PFAS, REACH and Other Chemical Regulatory Issues
A recording of PFAS, REACH and Other Chemical Regulatory Issues the second webinar in our two-part 2022 Chemicals Workshop webinar series, in partnership with the Ohio Chemistry Technology Council (OCTC), is now available.
In this session, we provided an overview of the rapidly evolving landscape related to per- and polyfluoroalkyl substances (PFAS), including the proposed listing of perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), regulation under the Toxic Substances Control Act (TSCA), and the practical strategies, considerations and measures to assess legacy and current risks. We also discussed developments related to Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and other chemical regulatory issues in the UK and the EU.
2022 Chemicals Workshop Webinar Series: TSCA Developments and US EPA Updates
A recording of TSCA Developments and US EPA Updates, the first webinar in our two-part 2022 Chemicals Workshop webinar series in partnership with the Ohio Chemistry Technology Council (OCTC), is now available.
In this session, we reviewed US EPA’s implementation of the Toxic Substances Control Act (TSCA), including proposed “whole chemical” determinations and other Biden Administration initiatives. We discussed implications for the chemical industry, possible legal challenges and risk mitigation strategies, and reviewed developments in the Agency’s “new chemicals” program and related TSCA regulatory changes.
US EPA Launches Initiative to Streamline the Review Process for Certain Electric Vehicle and Clean Energy Chemicals
On October 5, 2022, the U.S. Environmental Protection Agency (EPA) announced its intent to streamline the review process of mixed metal oxides (MMOs). MMOs are a key component in lithium-ion batteries, which are used in electric vehicles and other clean energy initiatives, including in semi-conductors, and renewable energy generation and storage, such as in solar cells and wind power turbines.
Prop 65 Regulatory Update for the Cannabis Industry: Tailored Warnings Become Effective October 1, 2022 with a 1-Year Grace Period for Compliance
As we noted in a prior post, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed tailored Prop 65 safe harbor warnings for THC and marijuana smoke, following listing THC for reproductive harm and marijuana smoke as cancer-causing in January 2020 (marijuana smoke was already listed for reproductive harm as of 2009). After considerable public comment and a published final statement of reasons addressing those comments, OEHHA announced on August 8, 2022 that it had approved amendments to the new tailored warnings.
The regulations will become effective on October 1, 2022. However, there is a one-year phase-in period and unlimited sell-through provision for products manufactured and labeled with compliant warnings before October 1, 2023.
In general, these amendments provide “non-mandatory, specific safe harbor exposure warning methods of transmission and content for retail products that can expose consumers to cannabis (marijuana) smoke or delta-9-THC via inhalation, ingestion, or dermal application, and for environmental exposures . . .” However, there are a few important items to note in the newly adopted regulations.
US EPA Proposes PFAS Hazardous Substances Designation
In a landmark action, US EPA recently proposed to designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.” If finalized, this rule would require entities to report releases of those PFAS substances and would authorize US EPA to order cleanups by potentially responsible parties. Given the potential for widespread liability for such parties if the rule is finalized, it is likely to trigger significant debate from supporters and challengers alike.