On December 20, 2016, President Obama announced that he was using his authority under the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.) to prohibit drilling and oil exploration in certain areas of the Arctic and Atlantic Oceans. President Obama’s action was coordinated with Canada, where Prime Minister Trudeau announced a similar ban in Canada’s Arctic waters. The action will ban drilling in approximately 115 million acres of the Arctic Ocean, which represents 98% of federally owned Arctic waters, and 3.8 million acres of the Atlantic coast around a series of sensitive coral canyons.
The Outer Continental Shelf Lands Act (“OCS Act”) was passed in 1953 to protect the waters above the outer continental shelf – submerged lands beginning 3 miles from shore and extending to the 200-mile international-waters boundary. 43 U.S.C. § 1331(a). The OCS Act states that:
"The outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs." 43 U.S.C. § 1332(3).
The California Department of Toxic Substances Control (DTSC) has issued draft guidance titled Alternatives Analysis Guide and is seeking comments through January 20, 2017. California’s Safer Consumer Products (SCP) Program challenges product designers and manufacturers to reduce toxic chemicals in their products. According to DTSC, the SCP regulations establish innovative approaches for responsible entities to identify, evaluate, and adopt better alternatives. The SCP approach requires an Alternatives Analysis (AA) that considers important impacts throughout the product’s life cycle and follows up with specific actions to make the product safer. DTSC prepared the Draft Alternatives Analysis Guide to help responsible entities conduct an AA to meet the regulatory requirements. Public comments are specifically requested to provide DTSC with insight on the clarity and usefulness of the Draft Alternatives Analysis Guide.
DTSC’s SCP Program regulations took effect October 1, 2013 and are being implemented based on the various regulatory requirements. The goals of the program are to: 1) reduce toxic chemicals in consumer products; 2) create new business opportunities in the emerging safer consumer products industry; and 3) help consumer and businesses identify what is in the products they buy for their families and customers.
The SCP program implements a four-step process to reduce toxic chemicals in the products that consumers buy and use. It identifies specific products that contain potentially harmful chemicals and asks manufacturers to answer two questions: 1) Is this chemical necessary? 2) Is there a safer alternative? The first step involved publication of a list of candidate chemicals that exhibit a hazard trait and/or an environmental toxicological endpoint. Regulators must then identify potential “priority products” containing chemicals that pose a significant risk to public health or the environment. Once a priority product is declared through a separate rulemaking, regulated entities must conduct an alternative analysis to determine if safer options are available. The final step in the lengthy process is for the department to determine if a regulatory response, such as banning the chemical-product combination, is required.
To learn more about the status of the SCP program and to obtain a copy of the new guidance, visit the DTSC SCP website at http://www.dtsc.ca.gov/SCP/index.cfm.
On December 7, 2016, EPA published a proposed rule to ban certain uses of trichloroethylene (TCE) under section 6(a) of the Toxic Substances Control Act (TSCA) due to risks to human health from those uses. The proposed rule would prohibit the manufacture (including import), processing, distribution in commerce and commercial use of TCE for aerosol degreasing and for spot cleaning in dry cleaning facilities.
As we previously reported on this blog, EPA recently included TCE on its list of the first 10 chemicals it will evaluate broadly for potential risks to human health and the environment pursuant to requirements of the 2016 TSCA Reform Act. In a 2014 risk assessment, EPA identified serious risks to workers and consumers associated with TCE uses, concluding that the chemical can cause a range of adverse health effects, including cancer, development and neurotoxicological effects, and toxicity to the liver.
In a move that should not come as a great surprise, on December 7, 2016, U.S. EPA published a final rule which added a "subsurface intrusion” or “SsI" component to CERCLA’s Hazard Ranking System (HRS). More specifically, SsI can include either groundwater or vapor intrusion although vapor intrusion is the much more common exposure pathway. The new rule, which can be found here, will become effective within 30 days of publication in the federal register. According to U.S. EPA Waste Chief Mathy Stanislaus, the new rule expands the types of sites that be assessed by U.S. EPA to now include sites that solely have SsI issues, as well as sites that have SsI issues that are coincident with a groundwater or soil contamination problem.
The final rule is substantially similar to the draft rule but does have minor adjustments that were made in response to comments which U.S. EPA contends will better “help refine the mechanics of assigning an HRS site score.” Importantly, the new rule doesn’t change the existing HRS cutoff score of 28.5 for a site to qualify for listing on the NPL, nor does the new rule apply to sites that are already on or proposed to be listed on the NPL.
Industry groups and the Department of Defense had objected to the draft rule, and it is unclear whether the new rule will be retained or modified under the incoming Trump administration. We will continue to track this and other rulemaking efforts on the part of U.S. EPA as the administration continues to transition.
Several news outlets are reporting that President-elect Donald Trump will nominate Oklahoma Attorney General Scott Pruitt to serve as the Administrator of the U.S. Environmental Protection Agency. Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. In his role as Oklahoma Attorney General, Mr. Pruitt has been active in litigation challenging current EPA regulations in court, most significant of which have been challenges to the Obama Administration’s Clean Power Plan.
Mr. Pruitt and Oklahoma are part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit, which recently heard nearly seven hours of oral arguments and is expected to issue a ruling soon.
Environmental groups have been quick to react to Mr. Pruitt’s apparent nomination. Sierra Club Executive Director, Michael Brune released a statement critical of the pick:
Having Scott Pruitt in charge of the U.S. Environmental Protection Agency is like putting an arsonist in charge of fighting fires…We strongly urge Senators, who are elected to represent and protect the American people, to stand up for families across the nation and oppose this nomination.
Mr. Pruitt’s appointment must be confirmed by the U.S. Senate. Several Democratic Senators have already raised concerns over his nomination, including Senator Brian Schatz (D-HI), who tweeted that he “will do everything I can to stop this.”
On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule: An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).
The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.
On November 29, 2016, EPA announced the first 10 chemicals it will evaluate for potential risks to human health and the environment under the new Toxic Substances Control Act (TSCA) Reform Act, which was signed into law back in June. The TSCA Reform Act required EPA to publish this list of priority chemicals and begin the risk evaluation process on these chemicals by December 19, 2016. By the end of 2019, EPA will be required to have at least 20 chemical risk evaluations in process at any given time.
The first 10 chemicals to be evaluated by EPA are:
Cyclic Aliphatic Bromide Cluster
Pigment Violet 29
Tetrachloroethylene, also known as perchloroethylene
This list will be published in the Federal Register in the coming weeks, at which point it will trigger several statutory deadlines for these 10 chemicals:
- EPA must release a scoping document for each chemical within 6 months.
- EPA must complete risk evaluations for each chemical within three years.
- If the risk evaluation determines that a chemical presents an unreasonable risk to humans and the environment, EPA must mitigate that risk within two years.
More information on the TSCA Reform Act and EPA’s recent actions can be found on EPA’s website.