On April 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed a rule seriously restricting the manufacture, processing, and distribution in commerce of methylene chloride. EPA is exercising its authority under Section 6(a) of the Toxic Substances Control Act (TSCA), which allows the agency to impose such prohibitions on chemical substances that it determines, following a risk evaluation, to present an unreasonable risk of injury to health or the environment. Methylene chloride is most commonly used as a solvent in adhesives and sealants, automotive products, and paint and coating removers, and this rule could affect, among others, the automotive, pharmaceutical, and chemical manufacturing sectors.
On April 21, 2023, the U.S. Environmental Protection Agency (EPA) released the draft “National Strategy to Prevent Plastic Pollution” that could have serious implications for the regulated community, including the packaging industry, retailers, plastic manufacturers, solid waste management facilities, and recycling facilities, among others. According to the draft strategy, EPA is seeking to eliminate the release of plastic and other waste from land-based sources into the environment by 2040 through the following objectives: reducing pollution during plastic production, improving postuse materials management, preventing trash and micro/nano plastics from entering waterways, and removing escaped trash from the environment. Within these objectives EPA identified various research and regulatory actions under consideration. Among the regulatory actions under consideration, EPA signaled it was exploring new rules under the Toxic Substances Control Act for advanced recycling facilities that use pyrolysis to process recovered feedstocks into recycled plastics. The agency also called for ratification of the Basel Convention, which the United States agreed to in the 1990s but failed to ratify, as another approach to addressing international plastic waste.
On April 13, 2023, the U.S. Supreme Court in Axon Enterprise, Inc. v. Federal Trade Commission et al. unanimously held that federal district courts can hear constitutional challenges to an agency’s administrative enforcement powers without waiting for the outcome of administrative appeals to that action.
On April 13, 2023, the U.S. Environmental Protection Agency (EPA) issued an Advance Notice of Proposed Rulemaking (ANPRM) asking the public for input concerning potential designations of seven per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Based on public input and data to be received, EPA will evaluate whether these PFAS may present substantial danger to the public health or welfare or the environment.
On April 7, 2023, the U.S. Federal Energy Regulatory Commission (FERC) issued an Order Accepting Tariff Revisions Subject to Condition (183 FERC ¶ 61,009) approving a PJM Interconnection LLC (PJM) proposal to limit the power capacity values of wind, solar, and hybrid resources within PJM’s recently adopted grid reliability framework.
On April 6, 2023, President Joe Biden signed an executive order (EO), “Modernizing Regulatory Review,” amending President Bill Clinton’s EO 12866, which has served as the foundation for regulatory review and analysis across administrations for nearly 30 years. The following day, the White House Office of Management and Budget (OMB) issued several related actions. These included proposed revisions to guidelines for benefit-cost analysis and processes for public participation in the regulatory review process.
On March 29, 2023, the U.S. Internal Revenue Service (IRS) published a Proposed Rule to amend the Environmental Tax Regulations, 25 C.F.R. part 52, specifically those provisions governing the chemical excise taxes used to fund the Hazardous Substance Response Trust Fund established pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)—known as the Superfund Chemical Tax. Because this is the first time the tax will be applied in over 25 years, its effects may not be well understood by affected industry taxpayers, and the IRS’s Proposed Rule offers critical guidance. Companies engaged in the manufacturing, import, or sale of taxable chemicals should evaluate the Proposed Rule and consider submitting comments by the May 30, 2023, deadline.
On Thursday, March 30, 2023, the U.S. House of Representatives passed HR 1, the Lower Energy Costs Act. The bill — the GOP’s energy policy and permitting bill — passed by a vote of 225 to 204, with four Democrats joining Republicans in voting to pass the bill and one Republican legislator voting against it.
On April 3, 2023, the Bureau of Land Management (BLM) published a proposed rule in the Federal Register that would put conservation of U.S. managed lands on an equal footing with oil and gas development and other economic activities (the Proposed Rule). Stakeholders interested in development on federal lands should consider carefully the implications of BLM’s proposal.