Insights

On August 6, 2024, the Environmental Protection Agency (“EPA”) took the rare action of announcing the emergency suspension of all registrations for pesticide products containing the active ingredient dimethyl tetrachloroterephthalate (“DCPA” or “Dacthal”) under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). This is the first time in almost 40 years that EPA has issued an emergency suspension order.[1] EPA’s reasoning for the present action is that DCPA can cause adverse health effects in the fetuses of women exposed to DCPA.

A wave of recent changes in federal and state law pertaining to PFAS chemicals is likely to present both immediate and long-term challenges to the government contracting community. At the federal level, contractors that import products, parts, packaging, equipment or other articles with components that contain PFAS must confront new and extensive regulatory reporting requirements relating to such imports going back to 2011, and they must do so by May 2025. At the state level, a growing list of states are enacting total bans on the sale and distribution of such products and components. On top of this flurry of environmental regulatory activity, the Biden Administration continues to direct federal agencies to develop procurement strategies that prioritize the purchase of PFAS-free articles as part the Administration’s broader effort to leverage the federal procurement function in pursuit of climate and sustainability policy objectives.

Recent changes in federal and state law pertaining to PFAS chemicals will have profound impacts on clean energy companies in the U.S.  At the federal level, companies that import equipment or other articles with components that contain PFAS will have to comply with extensive reporting requirements.  At the state level, companies will face total bans on the sale and distribution of such products and components.

On January 31, 2024, EPA Administrator Michael Regan signed two proposed rules related to per- and polyfluoroalkyl substances (PFAS) and corrective action authority under the Resource Conservation and Recovery Act (RCRA). These rulemakings follow from a 2021 announcement covered in a prior Crowell client alert, adding to the growing number of pending PFAS-related proposals submitted by EPA.

In a recent Client Alert we introduced readers to EPA’s new PFAS reporting rule under Section 8(a)(7) of the Toxic Substances Control Act (TSCA), highlighting the rule’s impacts on companies that are typically not regulated under TSCA, such as importers of equipment, machinery, electronics and other types of manufactured articles.  In this follow-up alert we examine how the new PFAS reporting rule will apply to manufacturers and importers of chemical products.  Although chemical manufacturers are likely to be well-acquainted with regulations under TSCA, EPA’s new PFAS reporting rule is unprecedented in scope and will present unusual compliance challenges for many companies that manufacture or import chemical products.

On September 28, 2023, EPA released a long-anticipated final rule aimed at gathering information on products in commerce that contain PFAS chemicals.  As defined in the regulation, the term “PFAS” includes a group of materials known as fluoropolymers, which are widely used in gaskets, tubing, electrical wiring, composite materials, printed circuit boards, membranes and many other manufactured articles.  Under EPA’s new regulation, any company that has imported any of these types of articles containing fluoropolymers (or any other PFAS chemical) at any time since 2011 will be required to submit extensive information to EPA regarding those products and activities.  The pre-publication version of the final rule can be found here.

Many businesses face mounting disruption and, in some cases, temporary shutdown as a consequence of the ongoing coronavirus (COVID-19) pandemic. As owners and operators confront these challenges, they face the added challenge of continuing to satisfy applicable federal, state, and local environmental laws and regulations. Unprecedented obstacles to maintaining routine compliance include, for example, the lack of staff to collect water samples, the inability to obtain physical signatures of documents such as air permits and compliance reports, and difficulty constructing, repairing, upgrading, and maintaining emissions controls and monitoring systems because of disruptions to the supply chain or work force.

The Office of Administrative Law has approved amendments to California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) regulations regarding the responsibility to provide consumer product exposure warnings and the meaning of “actual knowledge” as used in the regulations.1 The amendments, which are set to go into effect on April 1, 2020, are specifically intended to clarify Title 27, California Code of Regulations, section 25600.2, subsections (b), (c), (f) and (i).2 

On January 27, 2020, the U.S. Environmental Protection Agency (EPA) identified companies that it believes are manufacturing or importing any of 20 “high priority” chemical substances undergoing EPA-initiated risk evaluations under section 6 of the Toxic Substances Control Act (TSCA). These companies could be subject to a mandatory share of a $1.35 million EPA risk evaluation fee for each substance.

Facilities, foreign and domestic, that produce pesticides, devices or active ingredients (“pesticidal products”) must file with EPA their annual production reports for 2018 on or before March 1, 2019. 

An EPA-approved Notice of Arrival of Pesticides and Devices (NOA) is required before a pesticide may be imported into the United States. Without EPA approval of an NOA, US Customs and Border Patrol (CBP) will not release the pesticide shipment at the port of entry. During past federal government shutdowns, the importation of pesticides effectively ground to a halt. Without funds or staff, EPA’s regional offices could not accept, and therefore could not process, NOA forms for pesticides. After the 2013 shutdown, EPA was determined to fix this problem, and one solution was the utilization of CBP’s Automated Commercial Environment (ACE), an electronic system where importers or import brokers can file NOAs electronically. All EPA regional offices now accept electronically filed NOAs.

On August 11, 2017 EPA published in the Federal Register the final TSCA Inventory Notification (Active-Inactive) Rule — commonly referred to as the “Inventory Reset Rule.” The rule, which is effective immediately, creates new reporting obligations for companies that manufacture or import chemical products. Companies that process chemicals in order to manufacture articles or to create formulated chemical products are also affected by the rule.

Last week EPA issued the pre-publication version of its much-anticipated final TSCA Inventory re-set rule. Because the new regulation affects every company that manufactures, imports, or processes chemical substances in the U.S., a wide swath of industry will be impacted by the rule including almost every company in the manufacturing sector. The main purpose of the Inventory Reset rule is to provide EPA with a clear picture of all chemical substances that are active in commerce in the U.S. To accomplish this, the rule establishes both “retrospective” and “forward-looking” reporting requirements for manufacturers, importers and processors of chemical substances that are listed on the TSCA Inventory. These designations are key—a substance designated as inactive can no longer be manufactured or processed in the U.S. until the certain reporting requirements are satisfied. Click here for more information on how your company may be affected by the rule and to identify specific steps you can take to minimize disruption caused by the rule.

Last week EPA issued the pre-publication version of its much-anticipated final TSCA Inventory re-set rule. Because the new regulation affects every company that manufactures, imports or processes chemical substances in the U.S., a wide swath of industry will be impacted by the rule including almost every company in the manufacturing sector. Although the reporting requirements appear to be straightforward, the rule creates several potential traps for the unwary. This Alert is intended to help you understand how your company may be affected by the rule and to identify specific steps you can take to minimize disruption caused by the rule.  

In a Federal Register notice that is scheduled to be published tomorrow, EPA will announce a delay in the effective date of the new nano reporting rule until August 14, 2017. A pre-publication copy of the notice, available here, indicates that the delay is intended to allow EPA to issue interpretive guidance on the rule before the new reporting requirements take effect. The lack of interpretive guidance had previously been criticized by various stakeholders.

On January 11, 2017, the U.S. Environmental Protection Agency (EPA) published a final rule establishing new reporting and recordkeeping requirements for substances that are manufactured or processed as nanoscale materials. The rule, which will take effect on May 12, 2017, is unique in several respects:

EPA announced yesterday the first ten chemicals that will be subject to risk evaluations, and possibly restrictions, under the “new” TSCA. The first ten chemicals are:

On August 29, U.S. Customs and Border Protection (CBP) published a proposal to amend the regulations regarding the requirement to file a Toxic Substances Control Act (TSCA) certification when importing chemical substances 1) in bulk form, 2) as part of mixtures, or 3) in articles containing a chemical substance or mixture. The proposed amendments include an electronic option for filing TSCA certifications, the clarification of certain definitions, and elimination of the paper-based blanket certification process.

In this issue:

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act. This legislation, which amends the 40-year old Toxic Substances Control Act (TSCA), completely overhauls how chemical products are regulated in the U.S. In this article we highlight four key aspects of the law that every company should be aware of.