In a surprising decision, a federal judge last week blocked California from requiring Monsanto to put Proposition 65 warning labels on its Roundup products, ruling there is “insufficient evidence” that glyphosate—the active ingredient in the popular weed killer—causes cancer. Continue Reading Judge Halts Monsanto Warning Label on First Amendment Grounds

On February 7, 2018, US Environmental Protection Agency (EPA) Administrator Scott Pruitt signed a proposed rule to establish user fees to defray EPA’s costs of administering its responsibilities under the Toxic Substances Control Act (TSCA), as amended by the 2016 Frank Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). EPA estimates in the proposed rule that it will collect about $20.05 million per year in user fees, not counting any user fees associated with manufacturer-requested risk evaluations, which would range from $1.3 million to $2.6 million per evaluation. Continue Reading EPA’s Proposed TSCA Fees Rule – Key Issues

Last October we saw the State of California implement its “PSM for Refineries” standard and now the State of Washington’s Division of Occupational Safety and Health (DOSH) appears to be following suit, releasing draft language to adopt a rule of its own. This new chapter will only apply to Process Safety Management (PSM) for petrochemical refining facilities. Continue Reading Washington OSHA has Released Draft Language for its PSM Standard for Refineries

A New Jersey court recently held that an electrical products manufacturer was entitled to coverage rights provided by a predecessor’s commercial general liability policies if it was found liable for environmental remediation costs as a result of cleanup efforts by the US Environmental Protection Agency (EPA) along a 17-mile portion of the Passaic River in New Jersey. Continue Reading New Jersey Decision Highlights Importance of Reviewing Historical Liability Insurance Policies

New chemicals of concern, new scientific and technical developments, newly discovered wastes, or natural disasters can add up to new CERCLA liabilities. When the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) was passed in 1980, it did not address the finality of judgments and settlements for the cleanup of contaminated sites. Some early settlements with EPA provided a complete release from all future CERCLA liability, but that later changed when the United States Environmental Protection Agency (“EPA”) began to limit the scope of covenants not to sue to specified “matters covered” by the settlement. The 1986 CERCLA amendments in section 122(f)(6), 42 U.S.C. § 9622(f)(6)(1) permanently made the change to require “reopeners” in all but a few limited circumstances. Continue Reading Reopened CERCLA Liability: New Causes for Concern?

Last year, President Obama signed into law the amended Toxic Substances Control Act (TSCA). Congress made substantial changes with respect to how both existing and new chemical substances are regulated. Some of these changes are significant and will have a direct impact on US chemical manufacturers, importers, distributors and users. However, the US did not attempt to mimic the EU’s REACH Regulation.

This article provides a high-level comparison of the main building blocks of the two regimes, bringing out the main similarities and differences between them. Of course, these are two different jurisdictions and no direct comparison can be completely valid, but it is worth making the comparison nonetheless, because many companies operate across both regions and because other jurisdictions have mimicked REACH in their regulatory reform, whereas the US has chosen not to. Continue Reading Reformed TSCA and REACH: How Do They Compare?

Environmental and public-health groups have taken issue with the EPA’s rule establishing procedures for chemical risk evaluations under the revised Toxic Substances Control Act (TSCA), which allows the EPA to exclude certain conditions of use when assessing whether a chemical presents unreasonable risks. These groups fear the exclusions could provide a “loophole” allowing some chemical risks to go unaddressed. But putting those concerns aside, should companies affected by the rule actually want to take advantage of these exclusions? Are they really beneficial to regulated industries? Or do they risk undermining one of the primary goals that companies sought to gain by supporting TSCA reform—federal preemption of overlapping state restrictions?

Continue Reading You Can’t Win if You Don’t Play: How EPA’s Risk Evaluation Exclusions Limit TSCA Preemption

Last year Congress directed the US Environmental Protection Agency (EPA) to review new chemicals by a new process. A major question for manufacturers and consumers is whether EPA can do this within a reasonable time period without unnecessarily getting in the way of innovation.

Since enactment of the Lautenberg Act amending the Toxic Substances Control Act (TSCA) in June 2016, the pace of EPA’s review of new chemicals has slowed dramatically. While EPA’s pre-enactment new chemicals program handled around 1,000 premanufacture notifications (PMNs) annually, EPA estimates that a backlog of about 600 new chemicals had built up by January 2017, which created a substantial concern in the regulated community.

Continue Reading EPA’s New Chemicals Review Program – A Status Report

In 1980, a lame duck Congress passed the nation’s first legislation, the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §9601 et seq. (CERCLA), to address the cleanup of toxic waste disposal sites. Comprehensive amendments were passed six years later. Over the next 30 years, EPA’s enforcement powers were used with increasing regularity and consistency to study, begin, and often complete cleanups at hundreds of the nation’s contaminated waste sites. The program has always had its critics, but not until the current administration has there been a fundamental reassessment of its basic cost-benefit structure, just as is being done with many other federal programs. Continue Reading Is Superfund Heading in a New Direction?

What They Are:  PFASs (per- and polyfluoroalkyl substances) comprise a group of highly fluorinated manmade compounds that are showing up in drinking water supplies around the country. They are resistant to heat, water and oil, as well as to chemical breakdown. Because of these properties, PFASs have been used for decades as surface protection in a wide range of consumer products including carpets, clothing, cookware and food industry paper products such as pizza boxes and sandwich wrappers. PFASs are also present in foam used for fighting fires involving flammable or combustible liquids, such as oil and gasoline. Additionally, mist suppressants for metal plating operations may contain PFASs. Continue Reading PFASs: If You Haven’t Heard of Them, You Will Soon