Memoranda

The U.S. Environmental Protection Agency (EPA) has revised the Notice of Arrival (NOA) form (EPA Form 3540-1), the use of which is required for import of pesticides and pest control devices into the United States. Importers should begin using the new form immediately. The revised form and related instructions are available online. EPA has added optional information blocks, recommendations, and certain clarifications to the instructions. Some of these changes may be beneficial and respond to...

On December 30, 2013, Health Canada’s Pest Management Regulatory Agency (PMRA) released a consultation document entitled Proposed Approach to Special Reviews – Consultation Document. The Consultation Document outlines the Pest Control Products Act legislative requirements for special reviews and PMRA’s proposed approach to conduct such special reviews. The document is available online. PMRA is accepting comments until January 29, 2014. PMRA states that any comments...

On November 12, 2013, the United States Environmental Protection Agency (EPA) released an Administrative Law Judge (ALJ) decision ordering Respondent Elementis Chromium Inc., f/k/a Elementis Chromium, LP (Elementis or Company), to pay a $2,571,800 civil penalty for violating Section 8(e) and Section 15(3)(B) of the Toxic Substances Control Act (TSCA). The decision is available online. Although the case is highly fact-specific, the decision, if upheld under any potential appeal, may be used...

Bergeson & Campbell, P.C. (B&C®) outlines below thoughts on what may be headed our way in 2014 from the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP). We also offer a few thoughts on European and Asian developments pertinent to chemical regulatory matters. Although President Obama is well into his second term, the 2014 off-year elections, combined with the bitter partisan atmosphere in Washington, D.C., will result in a...

On November 20, 2013, the United States Environmental Protection Agency (EPA) announced its intent to release for comment proposed Draft Guidelines for Product Environmental Performance Standards and Ecolabels for Voluntary Use in Federal Procurement (Draft Guidelines). EPA states the Draft Guidelines — developed by EPA, the General Services Administration (GSA), and other federal agencies following several “listening sessions” with a wide range of stakeholders — are...

On November 13, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing on the Chemical Safety Improvement Act (S. 1009) (CSIA), which was introduced in May 2013 by the late Senator Frank R. Lautenberg (D-NJ) and Senator David Vitter (R-LA). Earlier this year, the House Subcommittee held hearings to provide an overview of Title I of the Toxic Substances Control Act (TSCA); examine TSCA Sections 5 and 14, which...

On November 7, 2013, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision granting in part and denying in part the Natural Resources Defense Council’s (NRDC) petition for review of the U.S. Environmental Protection Agency’s (EPA) conditional registration of HeiQ AGS-20 and AGS-20 U (collectively, AGS-20) pesticide products that EPA has determined contain nanoscale silver (nanosilver). The court vacated EPA’s decision “insofar as it concluded that...

There are 26 days remaining until the December 1 deadline by which employers must have trained their workers on the new label elements and the Safety Data Sheet (SDS) format as required under the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). While there is still time to meet the requirements, companies must act quickly. Bergeson & Campbell, P.C. (B&C®) and The Acta Group (Acta) can assist employers storing, using, or handling...

On October 29, 2013, the Federal Trade Commission (FTC) announced six enforcement actions concerning misleading and unsubstantiated environmental marketing claims. In a case imposing a $450,000 civil penalty, FTC filed a complaint and consent order against a company for violating a 1994 FTC order prohibiting it from making unsupported green claims for its paper plates and bags. In the five other actions, FTC addressed biodegradable plastic claims for the first time. In one case, FTC...

The U.S. Environmental Protection Agency (EPA) signed on September 30, 2013, a final rule amending a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances. The amendment adds PFAS chemical substances that have completed the Toxic Substances Control Act (TSCA) new chemical review process, but have not yet commenced production or import, and designates (for all listed PFAS chemical substances) “processing” as a significant new use. The final rule also...

The California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations) take effect today. Memoranda providing background information on the Regulations are available online. The Regulations and Final Statement of Reasons are available online. The most onerous requirements for “responsible entities” (i.e., manufacturers, importers, assemblers, and retailers) will not be felt until DTSC identifies the first Priority...

The European Union (EU) Biocidal Products Regulation (BPR) has entered into EU law. This legislation changes the way in which biocidal active substances and biocidal products are regulated in the EU. The new EU regulatory system differs from other global regulatory systems for biocidal substances and redefines what are considered biocidal products and treated articles. Companies competing in this space must be aware of and careful to ensure that existing supply chains and biocidal product...

On September 18, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy convened a hearing on the “Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act.” This was the Subcommittee’s third hearing on Toxic Substances Control Act (TSCA) issues, and was intended to focus “on the existing statutory provisions, regulatory implementation, and ‘real world’ implications of...

On August 28, 2013, California’s Office of Administrative Law (OAL) approved the California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations). The Regulations will take effect on October 1, 2013. The Regulations are the much anticipated regulatory implementation of California’s Green Chemistry Initiative. DTSC’s implementing regulations have gone through several iterations, including an initial draft released on...

On August 6, 2013, the U.S. Environmental Protection Agency (EPA) signed its belated final rule establishing the 2013 renewable volume obligations (RVO) for the four fuel categories that are part of the federal Renewable Fuel Standard (RFS) Program under the Clean Air Act (CAA): cellulosic biofuel; biomass-based diesel; advanced biofuel; and total renewable fuel. These standards apply to all gasoline and diesel produced or imported in 2013. The final rule will become effective once it...

On July 31, 2013, the Senate Committee on Environment and Public Works held a hearing on “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” To date, two bills have been introduced in the Senate that would reform the Toxic Substances Control Act (TSCA) — the Safe Chemicals Act of 2013 (S. 696) (SCA) and the Chemical Safety Improvement Act (S. 1009) (CSIA). The late Senator Frank R. Lautenberg (D-NJ) reintroduced the SCA on April...

On July 11, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing on “Regulation of New Chemicals, Protection of Confidential Business Information, and Innovation.” The Subcommittee held a June 13, 2013, oversight hearing on Title I of the Toxic Substances Control Act (TSCA). The July 11, 2013, hearing was intended to provide the Subcommittee an opportunity to examine the regulatory implementation and “real world” implications of...

On June 14, 2013, the U.S. Environmental Protection Agency (EPA) published a proposed rule to amend the Renewable Fuel Standard. The proposal would allow use of biogas from landfills to meet the obligations imposed on refiners and importers to utilize renewable feedstocks in transportation fuels, and clarify which renewable biofuels can be categorized as cellulosic biofuels. The Renewable Fuel Standard (known as RFS2) was first promulgated in 2010. RFS2 implements requirements for the use of...

On June 19, 2013, the U.S. Environmental Protection Agency (EPA) announced the availability of a fact sheet intended to provide guidance on reporting chemical substances that are or contain different isotopes of the same elements that are already on the Toxic Substances Control Act (TSCA) Inventory. Elemental isotopes have the same number of protons and therefore are the “same” element, but differ in molecular weight and possibly other properties because of a differing number of...

EPA Publishes Final EDSP Policies And Procedures And Final Second List Of Chemicals And Substances For Tier 1 Screening: On June 14, 2013, EPA published a Federal Register notice describing its final policies and procedures for requiring Tier 1 screening under the Endocrine Disruptor Screening Program (EDSP) of chemicals for which EPA may issue EDSP test orders pursuant to Section 1457 of the Safe Drinking Water Act (SDWA) and Section 408(p) of the Federal Food, Drug, and Cosmetic...

Regulation (EC) No. 1223/2009 of the European Parliament and of the Council of November 30, 2009, on Cosmetic Products will come into force on July 11, 2013, and repeals the Cosmetics Directive Regulation (Directive 76/768/EEC) provisions concerning carcinogenic, mutagenic, or toxic for reproduction (CMR) substances that have applied since December 1, 2010. The European Commission (EC) states that the Cosmetics Directive “until now ensured that products circulate freely...

The U.S. House of Representatives Committee on Energy and Commerce, Subcommittee on Environment and the Economy, held a June 13, 2013, hearing on “Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact.” The oversight hearing was intended to improve the Subcommittee’s understanding of the Toxic Substances Control Act (TSCA) and its implementation. The background memorandum for the hearing notes that Title I authorizes the U.S....

In a stunning bipartisan show of support for reform of the Toxic Substances Control Act (TSCA) that few saw coming, Senators David Vitter (R-LA) and Frank Lautenberg (D-NJ) (among bipartisan others) introduced on May 22, 2013, the Chemical Safety Improvement Act (CSIA), later designated S. 1009, available online. CSIA provides a new and streamlined approach to reform TSCA that stakeholders may view favorably when compared to prior legislative templates that have been considered...

Senator David Vitter (R-LA) announced today that he and Senator Frank Lautenberg (D-NJ) are the lead co-sponsors on a bill to reauthorize and amend the Toxic Substances Control Act (TSCA). The bill, entitled the Chemical Safety Improvement Act (CSIA), is co-sponsored by the following Senators: Kirsten Gillibrand (D-NY) Mike Crapo (R-ID) Dick Durbin (D-IL) Lamar Alexander (R-TN) Charles Schumer (D-NY) James Inhofe (R-OK) Tom Udall (D-NM) Susan Collins (R-ME) Joe Manchin (D-WV) Marco...

On April 24, 2013, the South Korea National Assembly Environmental and Labor Committee passed the Act on Registration and Evaluation, Authorization and Restriction of Chemical Substances, commonly known as Korea REACH or K-REACH. On April 30, 2013, the National Assembly enacted K-REACH, and it is now scheduled to come into force on January 1, 2015. Information on K-REACH is not yet available on the Ministry of Environment’s website. A translation of the Act is available online....

On May 8, 2013, the U.S. Environmental Protection Agency (EPA) issued a long-awaited final rule revising the data requirements for antimicrobial pesticide products. EPA states the revisions “reflect current scientific and regulatory practice, and [] provide the regulated community with clearer and transparent information about the data needed to support pesticide registration decisions for antimicrobial products.” The final rule revises and updates the data requirements for...

The European Union (EU) voted April 29, 2013, on a proposal to restrict the use of three neonicotinoid substances for agricultural uses. The substances are clothianidin, imidacloprid, and thiamethoxam. The proposal failed to gain sufficient support from the 27 EU Member States Appeal Committee and was passed to the European Commission (EC), which has confirmed that the proposal will be adopted in the coming weeks. Restriction upon the agricultural use of the three neonicotinoid substances...

On April 22-23, 2013, the Association of American Pesticide Control Officials (AAPCO)/State Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Issues Research and Evaluation Group (SFIREG) Pesticide Operations Management (POM) Working Committee (WC) held its semi-annual full committee meeting in U.S. Environmental Protection Agency (EPA) offices in Crystal City, Virginia. Through a cooperative agreement in 1978, EPA and AAPCO created SFIREG, an AAPCO committee with EPA funding, to...

In a widely anticipated and potentially influential report released on April 30, 2013, a committee of the National Research Council of the National Academy of Sciences (NAS) made detailed recommendations concerning potential revisions to the process by which the U.S. Environmental Protection Agency (EPA) and the Fish and Wildlife Service or the National Marine Fisheries Service (the Services) assess risk during consultation under Section 7(a)(2) of the Endangered Species Act (ESA) for specific...

On April 29, 2013, the U.S. Government Accountability Office (GAO) released a report entitled Toxic Substances: EPA Has Increased Efforts to Assess and Control Chemicals but Could Strengthen Its Approach, which provides the results of a performance audit conducted by GAO from December 2011 to March 2013. GAO reviewed the extent to which: (1) the U.S. Environmental Protection Agency (EPA) has made progress implementing its new approach for managing toxic chemicals with the goal of ensuring...

As reported in our April 11, 2013, memorandum, on April 10, 2013, Senator Frank R. Lautenberg (D-NJ) reintroduced the Safe Chemicals Act of 2013 (S. 696) (SCA 2013), which would reform the Toxic Substances Control Act (TSCA). Senator Lautenberg’s press release noted that the bill is identical to the Safe Chemicals Act of 2011 (S. 847) (SCA 2011), which was reported favorably out of the Senate Environment and Public Works (EPW) Committee on a party-line...

The European Commission (EC) published Regulation 348/2013 on April 17, 2013, that adds eight substances to Annex XIV of EU Regulation 1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), commonly referred to as the Authorization List. The notice can be found online. The substances are: Chemical Name CAS Number EC Number Last Application Date Sunset Date Trichloroethylene 79-01-6 201-167-4 October 21, 2014 April 21, 2016 Chromium trioxide 1333-82-0...

In a decision with enormous implications for pesticide registrants, on April 22, 2013, the U.S. District Court for the Northern District of California dismissed a complaint in Center for Biological Diversity, et al. v. EPA, a case often referred to as the “Mega-ESA” case. In this suit, the plaintiffs asserted that the U.S. Environmental Protection Agency (EPA) improperly failed to initiate or to reinitiate consultation under Endangered Species Act (ESA) Section 7(a)(2) for 382...

On April 18, 2013, the U.S. Environmental Protection Agency (EPA) proposed significant new use rules (SNUR) under the Toxic Substances Control Act (TSCA) for eight chemical substances that were the subject of premanufacture notices (PMN) P-11-327, P-11-328, P-11-329, P-11-330, P-11-331, P-11-332, P-12-298, and P-12-299, the first six of which are renewable, biobased chemical substances manufactured by KiOR, Inc. This memorandum explains why the proposed SNURs for the biobased chemical...

On April 17, 2013, the United Kingdom’s (UK) Department for Business, Innovation and Skills launched a public consultation on the implementation of the recast Waste Electrical and Electronic Equipment (WEEE) Directive. The consultation focuses on how the government should amend the existing WEEE regulations to ensure compliance with the recast WEEE Directive published on July 24, 2012, and on how to respond to concerns from UK producers of electrical and electronic equipment under the...

In its April 30, 2012, publication, FY 2013 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM) Guidance, OECA discusses its enforcement objectives and program priorities for fiscal year (FY) 2013. In discussing notable changes for FY 2013 from FY 2012, OECA lists budget challenges and states that it must cut resources in certain areas: “Anticipating tight budgets in FY 2013 and beyond, EPA’s enforcement program needs to focus its limited...

On April 10, 2013, the California Department of Toxic Substances Control (DTSC) released what many believe to be the last revisions to the proposed Safer Consumer Products Regulations (Revised Proposed Regulations). The Revised Proposed Regulations are subject to a 15-day comment period, ending April 25, 2013. Memoranda providing background information are available online. The Revised Proposed Regulations are available online. In summary, DTSC has not made many significant...

On April 10, 2013, Senator Frank R. Lautenberg (D-NJ) reintroduced the Safe Chemicals Act (S. 696), which would reform the Toxic Substances Control Act (TSCA) and is identical to legislation (S. 847) reported favorably out of the Senate Environment and Public Works (EPW) Committee on a party-line vote in the 112th Congress. In his April 10, 2013, press release, Senator Lautenberg states that, compared to earlier versions of the legislation, the Safe Chemicals Act of...

On March 27, 2013, as part of the Toxic Substances Control Act (TSCA) Work Plan, the U.S. Environmental Protection Agency (EPA) announced that it will begin assessments on 23 chemicals, with a specific focus on flame retardant chemicals. According to EPA’s press release, EPA will evaluate 20 flame retardant chemicals, conducting full risk assessments for four of the flame retardants, three of which are on the TSCA Work Plan, and one of which was the...

The U.S. Environmental Protection Agency (EPA) Office of Pollution Prevention and Toxics (OPPT) convened an in-person and on-line public forum today to discuss OPPT’s ongoing efforts to develop an interactive public website. The website would integrate a wide range of chemical data collected and EPA assessments conducted under Toxic Substances Control Act (TSCA) programs, as supplemented by additional EPA resources such as the Integrated Risk Information System (IRIS) and the Toxics...

Rosemarie Kelley, Director, Waste and Chemical Enforcement Division, U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance, announced during a recent industry meeting that one of EPA’s enforcement priorities will be to look at how manufacturers are naming and listing fractions of existing chemicals for Toxic Substances Control Act (TSCA) Inventory purposes. Kelley stated that fractions or “slices” of existing substances could be new...

On March 5, 2013, the U.S. Environmental Protection Agency (EPA) published in the Federal Register an important final rule certifying additional fuel pathways that meet the biomass-based diesel, advanced biofuel, or cellulosic biofuel lifecycle greenhouse gas (GHG) reduction requirements under the Renewable Fuel Standard (RFS) Program. The final rule describes EPA’s evaluation of advanced biofuels produced from camelina (Camelina sativa) oil and energy cane plants, includes an...

On February 25, 2013, the U.S. Environmental Protection Agency (EPA) published proposed significant new use rules (SNUR) under the Toxic Substances Control Act (TSCA) for 37 chemical substances that were the subject of premanufacture notices (PMN). In addition, 17 of the chemical substances are subject to TSCA Section 5(e) consent orders issued by EPA. If issued in final, the SNURs would require persons who intend to manufacture, import, or process the chemical substances for an...

On February 21, 2013, a three judge panel of the Fourth Circuit Court of Appeals issued a unanimous landmark decision in Dow Agrosciences v. National Marine Fisheries Service setting aside a Biological Opinion (BiOp) prepared by the National Marine Fisheries Service (NMFS) that found that use of the pesticides chlorpyrifos, diazinon, and malathion could jeopardize the viability of certain species of salmon and their habitat. The decision will have significant implications for the...

The U.S. Environmental Protection Agency (EPA) published in the February 20, 2013, Federal Register a notice announcing its intent to extend an Information Collection Request (ICR) concerning “Registration of Fuels and Fuel Additives — Health-Effects Research Requirements for Manufacturers.” Manufacturers (including importers) of fuels and additives designated by EPA, including motor-vehicle gasoline, motor-vehicle diesel fuel, and additives for those fuels, are...

Warm spring-like weather welcomed participants to the 4th Annual Next Generation Bio-Based Chemicals Summit at the Hilton San Diego/Del Mar. As a Platinum Sponsor of this premier event, Bergeson & Campbell, P.C. (B&C) professionals participated in four major events at the Summit. Attendees from many countries enjoyed the opportunity to become updated on the latest technologies and business developments in a well-organized program consisting of two days of concurrent pre-summit...

The U.S. Environmental Protection Agency (EPA) released on February 6, 2013, its preliminary volatilization assessment for the registration review of chlorpyrifos. 76 Fed. Reg. 8522. In a letter to the Natural Resources Defense Council (NRDC) and to the Pesticide Action Network North America (PANNA) dated January 25, 2013, updating these groups on EPA’s response to their September 12, 2007, joint petition regarding chlorpyrifos, EPA stated that “[t]his assessment represents a...

On January 30, 2013, the California Department of Toxic Substances Control (DTSC) released revised proposed Safer Consumer Products Regulations (Revised Proposed Regulations). The Revised Proposed Regulations are subject to a 30-day comment period, ending February 28, 2013. Memoranda providing background information are available online. The Revised Proposed Regulations are available online. Below is a summary of the core elements of the Revised Proposed Regulations —...

The U.S. Environmental Protection Agency (EPA) announced on January 30, 2013, that it will issue a final notice of intent to cancel the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registrations for the 12 D-Con mouse and rat control products produced by Reckitt Benckiser Inc. (Reckitt). This notice is intended to effectuate a Risk Mitigation Decision for rodenticides issued by EPA on May 28, 2008. EPA contends that these cancellations are necessary because “these products...

On January 18, 2013, the U.S. Environmental Protection Agency (EPA) promulgated a final rule revising the regulations on the labeling of pesticide products and devices intended solely for export. EPA states that the final rule restructures the current regulations to clarify which provisions apply under various circumstances. The final rule also provides increased specificity in the regulations by requiring that people who transfer unregistered pesticide products between registered establishments...