All three branches of the federal government are currently considering the question of whether the Migratory Bird Treaty Act (MBTA) prohibits the take of protected birds that is incidental to some otherwise lawful activity. The latest development is a proposal by US Fish and Wildlife Service (USFWS or Service) to issue a regulation expressly defining the scope of the MBTA to exclude take “that results from, but is not the purpose of, an action (i.e., incidental taking or killing).” 85 Fed. Reg. 5915 (Feb. 3, 2020). This proposal is the latest effort by the USFWS to bring clarity and certainty to a question that has been the subject of dispute for years and is currently both the subject of pending lawsuits and proposed legislation before Congress. If adopted, the rule should bolster the current administration’s effort to defend its interpretation of the statute, but the question is likely to be litigated further, assuming Congress does not intervene (seemingly unlikely for now).
Continue Reading USFWS Makes Another Move to Exclude Incidental Take from the Migratory Bird Treaty Act

On March 2, 2020, the Environmental Protection Agency proposed an updated Multi-Sector General Permit, which authorizes the discharge of stormwater industrial activities and is the model for most states’ industrial stormwater NPDES permits. The proposal makes numerous updates to the MSGP and, notably, incorporates recommendations from the National Academy of Sciences report on improving permitting of industrial stormwater. EPA will be accepting public comments on the proposal until May 1, 2020.
Continue Reading EPA Proposes New Multi-Sector General Permit for Industrial Stormwater

Companies that manufacture or import products containing one or more of 20 common chemicals may soon be required to disclose those activities and pay fees to offset the United States Environmental Protection Agency’s (EPA) review of those chemicals under the Toxic Substances Control Act (TSCA). In December 2019, EPA finalized its list of 20 high-priority chemicals for risk evaluation and potential regulation under TSCA:

  • Formaldehyde, a chemical commonly used in building products and as a preservative;
  • Five phthalates used as plasticizers in products like plastic pipes, toys, food packaging, cosmetics and medical/dental products (BBP, DBP, DEHP, DIBP and DCHP) and one chemical used to make phthalates (phthalic anhydride);
  • Three flame retardants (TBBPA, TCEP and TPP) and a chemical sometimes used in the manufacture of flame retardants and fire extinguishers (ethylene dibromide);
  • A fragrance additive found in perfumes, cosmetics and other consumer products (HHCB, also known as galaxolide);
  • Seven chlorinated solvents found in products like cleaning solutions, paint thinners and glues (1,1-dichloroethane, 1,2-dichloroethane, 1,2-dichloropropane, o-dichlorobenzene, p-dichlorobenzene, trans-1,2-dichloroethylene and 1,1,2-trichloroethane); and
  • A chemical used to manufacture synthetic rubber (1,3-butadiene).


Continue Reading EPA Reportedly Expecting Manufacturers and Importers of Products Containing 20 Common Chemicals to Self-Report and Share in Costs of Chemical Risk Evaluations

Additive manufacturing, more commonly known as 3D printing, has already found commercial application in various industries and its use is on the rise. 3D printing converts 3D digital models created on a computer or with a scanner into physical objects, usually by successively adding material layer by layer. The process allows manufacturers to make complex designs, rapid prototypes and final products while offering the potential to limit process waste and reduce production costs.
Continue Reading EPA Focuses on Potential Emissions from 3D Printing

Safe Harbor regulations were implemented in August 2016 to require “clear and reasonable” warnings of the potential danger of exposure to consumers. Hunton Andrews Kurth partners Malcolm Weiss and Shannon Broome pick up their discussion, this time exploring aspects of the Safe Harbor regulations and the expectations for companies with products sold in California.
Continue Reading VIDEO Inside Look: California Prop 65 Safe Harbor Regulations

California’s Proposition 65 (Prop 65), adopted in 1986 by state voters, has long been considered among the most far-reaching right-to-know and toxic chemical reduction statutes in the country. It now has competition from Washington State’s Pollution Prevention for Healthy People and Puget Sound Act (the “Act”), SSB 5135 (Chapter 292, 2019 Laws), signed into law on May 8, 2019, by former 2020 presidential candidate Governor Jay Inslee. Numerous commentators have called the Act, the nation’s “strongest” policy for regulating toxic chemicals in consumer products.
Continue Reading Washington State Ramps Up Chemical Regulation

In December 2018, an article in this blog flagged a petition for EPA rulemaking under the Toxic Substances Control Act (TSCA) that, if denied, had the potential to set up precedent-setting litigation on citizens’ ability to use the courts to require EPA action under TSCA. Now, nearly a year later, the scenario that article described is coming true. In a challenge to EPA’s denial of that petition, a federal district court is poised to decide what constitutes a petition for issuance of a new rule as opposed to one for amendment of an existing rule—and in the process, to decide when a court may cast aside deference to EPA and undertake its own evaluation independent of the Agency’s record and conclusions.
Continue Reading Federal District Court Poised to Consider Petition for Issuance of a New Rule Versus Petition for Amendment of an Existing Rule

California Prop 65 has allowed a slew of lawsuits to be brought by plaintiff attorneys against consumer retailers with products that end up in California.  Hunton Andrews Kurth partners Malcolm Weiss and Shannon Broome walk through the process for Prop 65 60-day notices and tactics companies can use to respond.
Continue Reading VIDEO Inside Look: California Prop 65 60-Day Notices

Electric vehicle (EV) production is expected to increase substantially in the near future. So, too, will the need to solve the problem of used EV batteries after they no longer meet EV performance standards. One solution may be to reuse those batteries as a source of energy for the electric grid.
Continue Reading A Green Afterlife for EV Li-ion Batteries