EPA Chemical Safety Rule Raises Questions About Authority

For what appears to be the first time in its history, the U.S. Environmental Protection Agency has recently finalized a rule that requires board-level involvement in an EPA-administered program. Specifically, the EPA’s recent amendments to the Risk Management Program (RMP) require certain chemical plants and refineries to submit third-party audit reports on process safety directly to the audit committee of the company’s board of directors. In short, the EPA is seeking to get involved in corporate governance by dictating what information management must provide to the audit committee and when — regardless of management input. In this article, first published in Law360 on April 25, 2024, Sidley lawyers Justin Savage, Ike Adams, and Aaron Flyer dissect the recent RMP amendments, which are a follow up to the EPA’s Safer Communities by Chemical Accident Prevention rule, finalized March 11, 2024. The authors explore the EPA’s authority to regulate corporate governance requirements, the practical value in doing so, and the potential fallout for companies in terms of corporate governance. If the new RMP rule survives judicial review, it may embolden the EPA to issue other board reporting obligations in any number of its regulatory programs governing corporate operations.

(more…)

Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA

On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.

(more…)

U.S. Environmental Protection Agency Releases Draft Risk Evaluation Under the Toxic Substances Control Act for Formaldehyde

On March 15, 2024, the U.S. Environmental Protection Agency (EPA or the Agency) published its draft risk evaluation under the Toxic Substances Control Act (TSCA) for formaldehyde. This proposal is one of a series of risk evaluations EPA is conducting as required by the 2016 amendments to TSCA.

(more…)

U.S. EPA Finalizes Rule Limiting Confidentiality Designations Under the Toxic Substances Control Act

On May 31, 2023, the U.S. Environmental Protection Agency (EPA) finalized a rule designed to tighten confidential business information (CBI) designations in submissions under the Toxic Substances Control Act (TSCA). EPA has touted this rule as providing “transparency” and providing the agency leeway to make “more health and safety data publicly available more quickly.” Given the sensitive nature of the data often provided in TSCA submission, regulated entities should carefully consider the provisions of the new rule and what steps they must take to ensure that confidential information is not subject to public disclosure.

(more…)

U.S. EPA Adds 12 Chemicals to Toxics Release Inventory

On November 30, 2022, the U.S. Environmental Protection Agency (EPA) finalized a rule that adds 12 chemicals to the list of chemicals subject to Toxics Release Inventory (TRI) reporting requirements.[1] Facilities that are covered by TRI and meet reporting requirements for these chemicals will now be required to report to EPA on quantities of these chemicals that are released into the environment or otherwise managed as waste. The first reports on these chemicals will be due to EPA July 1, 2024, for calendar year 2023 data.

(more…)

EPA Notifies Plastics Container Industry of Potential Presence of PFAS and TSCA Compliance Requirements

On March 16, 2022, the U.S. Environmental Protection Agency (EPA) notified the fluorinated high-density polyethylene (HDPE) industry in a letter that per- and polyfluoroalkyl substances (PFAS) could be formed in HDPE containers or similar plastics as a byproduct, which may trigger notification requirements under the Toxic Substances Control Act (TSCA) and be a violation of TSCA as contamination. (more…)

Federal and State Legislative Activity Continues on PFAS

Federal and state lawmakers continue to advance legislative efforts to address per- and polyfluoroalkyl substances (PFAS). PFAS have been used in a variety of consumer products and industrial processes and are often recognized for use in nonstick cookware, waterproof apparel, and fire-fighting foam. The U.S. House of Representatives voted this week to pass legislation that would further regulate PFAS. In a bipartisan vote of 241 to 183, lawmakers advanced HR 2467, the PFAS Action Act of 2021, which would impose federal requirements to address PFAS under many environmental statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Safe Drinking Water Act, and the Toxic Substances Control Act.

(more…)