On December 14, 2023, the European Parliament and the European Council reached a provisional deal on the Corporate Sustainability Due Diligence Directive (CS3D). Initially proposed by the European Commission in February of 2022, the CS3D requires certain companies to account for and mitigate adverse human rights and environmental impacts throughout their supply chains, including both their own operations as well as upstream and downstream activities. In November 2022, the European Council adopted the general approach proposed by the European Commission. Since then, the Council and the European Parliament have negotiated the parameters of the CS3D to reach a provisional agreement. While press releases from the Council, the Parliament, and the Commission all confirm an agreement has been reached, the text of the agreed upon CS3D is not yet publicly available. It is likely to be released in early 2024.Continue Reading EU Corporate Sustainability Due Diligence Directive Nearly Final
Manufacturing
Extended Producer Responsibility for Packaging: What’s Ahead in 2024
With the growing emergence of Extended Producer Responsibility (EPR) laws, companies selling products in the United States must increasingly plan for the end of a product’s life. EPR programs shift waste-management responsibilities that have traditionally been handled by consumers or state and local governments to the “producer” of the product.
Most existing EPR programs in the United States target packaging materials, especially plastic packaging. So far, four states have finalized EPR legislation for packaging: Maine, Oregon, Colorado, and California.[1] Each of these states is currently in the process of developing a regulatory program. In 2023, several additional states introduced EPR legislation, signaling that other states may soon follow.Continue Reading Extended Producer Responsibility for Packaging: What’s Ahead in 2024
Maine Department of Environmental Protection Releases Proposed Rule Implementing the Procedures for Maine’s Reporting Requirements and Prohibitions for Products Containing PFAS
The Maine Department of Environmental Protection (DEP) recently released a long anticipated proposed rule that would implement the procedures for Maine’s 2021 law[1] requiring manufacturers to submit notifications to DEP for products and product components containing intentionally added per- and polyfluoroalkyl substances (PFAS) sold in the state. Stakeholders will have until May 19, 2023, to provide comments on the proposal.
While Maine’s notification requirements went into effect on January 1, 2023, the proposed rule provides critical details on the applicability and procedures for notifications. Many manufacturers who received extensions from the January 1, 2023 notification deadline will be interested in reviewing the details of this proposal. The proposed rule provides important clarifications about the notification requirements, including:Continue Reading Maine Department of Environmental Protection Releases Proposed Rule Implementing the Procedures for Maine’s Reporting Requirements and Prohibitions for Products Containing PFAS
DOE Publishes Notice of Intent to Fund Clean Hydrogen Projects
On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.
Hydrogen plays a critical role in the United States’ energy mix, providing energy security, economic value, and environmental benefits. DOE’s Office of Energy Efficiency and Renewable Energy (EERE) issued the NOI to achieve such goals by providing financial assistance awards in the form of cooperative agreements. These funds were appropriated by Congress in the Infrastructure Investment and Jobs Act (more commonly known as the Bipartisan Infrastructure Law (BIL)).Continue Reading DOE Publishes Notice of Intent to Fund Clean Hydrogen Projects
Fourth Circuit Ruling Narrowly Construes Administrative Enforcement Bar to Clean Water Act Citizen Suit
A recent Fourth Circuit decision narrowly construed the state administrative enforcement bar to the Clean Water Act citizen suit, allowing a citizen suit seeking civil penalties to proceed despite the fact the state had already issued a notice of violation for the same alleged conduct. …
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Federal Court Finds Tort Claims Preempted by CERCLA Consent Decree
A recent federal district court decision shows how a consent decree can provide protection to responsible parties under CERCLA by precluding later-filed tort claims seeking additional relief or different remedial action.
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Why EPA’s Announcement about a Chemical No Longer Manufactured is Big News for your Business
On December 29, the chemicals program at EPA closed out 2021 by proposing revisions to its risk determinations for the Cyclic Aliphatic Bromide Cluster (HBCD), a solvent used as a flame retardant and wetting agent which has not been manufactured in the United States in nearly five years. In doing so, the Biden EPA made good on its June 2021 promise to revisit risk determinations previously made during the Trump Administration in accordance with the Toxic Substances Control Act (TSCA). The draft “revisions” represent a significant shift from EPA’s prior approach to existing chemical risk evaluation and foreshadow increased regulatory and litigation risk for all companies—not just those whose operations may have historically involved HBCD.
Continue Reading Why EPA’s Announcement about a Chemical No Longer Manufactured is Big News for your Business
Waste Not, Want Not: EPA’s Impending National Recycling Strategy
EPA hopes to issue its final National Recycling Strategy (NRS) this November, according to recent statements by acting director of EPA’s Resource Conservation and Sustainability Division, Office of Land and Emergency Management Nena Shaw at the American Bar Association’s Fall Conference. Previously, EPA indicated it intended to finalize the NRS in the spring of 2021 with an implementation roadmap out in the fall of 2021. To date, the agency has yet to release its final NRS.
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EPA May Require Companies To Know All The Chemicals In Products They Make Or Sell
In a dramatic announcement last week, EPA suggested that if companies import, manufacture, or process a finished good for commercial sale, and that product is not a pesticide, not a firearm, not a tobacco product, and not a food, food additive, drug, cosmetic, or device, they will need to know all chemicals contained in those products. We explain more about this below.
EPA has traditionally declined to extend most of its chemical regulations to finished goods, which are known as “articles” under the Toxic Substances Control Act (TSCA), on the grounds it would be enormously difficult for importers of complex consumer products to determine the chemical identity of each chemical substance in these products. Industry stakeholders have generally supported this approach and have long taken the position that supply chains are too complex to expect finished product manufacturers to be aware of all chemicals in those products.Continue Reading EPA May Require Companies To Know All The Chemicals In Products They Make Or Sell
EPA Advances Efforts to Address PFAS in Industrial Discharges
The EPA Office of Water has taken a major step towards further regulation of per- and polyfluoroalkyl substances (PFAS) under the Clean Water Act. On March 17, it published an advance notice of a proposed rulemaking (ANPRM) that could lead to development of effluent limitations guidelines (ELGs), pretreatment standards, and new source performance standards for PFAS manufacturers, formulators, and possibly other industries now being studied by EPA. 86 Fed. Reg. at 14,560. These industries include pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports. The ANPRM is open for public comment through May 17.
Continue Reading EPA Advances Efforts to Address PFAS in Industrial Discharges