On June 13, 2023, the Biden administration released the 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda). The Agenda lists federal agencies’ planned “short-term” regulatory actions to be taken over the next 12 months and “long-term” actions under development. The dates listed in the Agenda are based on publication dates in the Federal Register. Stakeholders should take note, as the Agenda provides a window into the administration’s priorities and strategies:
On June 7, 2023, the White House Council on Environmental Quality (CEQ) published a request for information (RFI) in the Federal Register seeking input on its planned Ocean Justice Strategy (the “Strategy”). The RFI describes the Strategy as an effort to integrate environmental justice principles into ocean-related activities of the federal government. The Strategy could have wide-ranging impacts on the development of ocean energy resources.
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.
On May 30, 2023, the U.S. Department of Energy (DOE) issued for public comment its draft Critical Materials Assessment. In the draft assessment, DOE characterized 22 different materials as critical, near critical, or noncritical to the nation’s energy needs based on the importance of those materials to energy applications and supply risk. DOE uses its Critical Materials Assessment — which it anticipates updating every three years — to “prioritize research and development efforts to meet the nation’s energy needs while reducing reliance on materials with high supply risk.” DOE explained that inclusion of a material on the critical materials for energy list may inform critical minerals Research Development, Demonstration, and Commercial Application (RDD&CA) Program priorities and eligibility for the Inflation Reduction Act Qualifying Advanced Energy Project Section 48C tax credits.
On Thursday, May 18, 2023, the U.S. Environmental Protection Agency (EPA) proposed new regulatory requirements for inactive coal combustion residuals (CCR) surface impoundments at inactive electric generating units. EPA had promulgated standards for new and existing CCR landfills and surface impoundments that exempted inactive surface impoundments at inactive facilities in April 2015. However, in August 2018, the U.S. Court of Appeals for the District of Columbia Circuit vacated the exemption and remanded the issue to EPA after environmental nongovernment organizations objected to the treatment of inactive impoundments at inactive facilities that may still pose a risk of introducing toxic substances into ground and drinking water.
On Tuesday, May 16, 2023, the U.S. Environmental Protection Agency (EPA) released a prepublication version of a proposed rule instituting reforms to EPA’s regulations implementing the Toxic Substances Control Act (TSCA). EPA maintains a TSCA Chemical Substance Inventory, which lists all chemical substances known to be in commerce in the United States. Under TSCA, manufacturers and importers must submit a premanufacture notice for a new chemical substance unless an exemption applies (e.g., research and development). EPA must complete its risk determination for the new chemical substance before manufacture or import may commence. The proposed rule now makes clear that EPA must complete its risk determination on 100% of new chemical substances or approve an exemption notice before the associated product can enter the market, which aligns with amendments to TSCA made in 2016.
The California Department of Toxic Substances Control (DTSC) has proposed adding microplastics and PPD derivatives to its Candidate Chemicals List. This listing positions microplastics, and products containing them, for regulation and potential restrictions under the agency’s Safer Consumer Products Program. Companies with products containing microplastics and PPD derivatives should engage with DTSC in coming regulatory proceedings.
The U.S. Environmental Protection Agency (EPA) issued, on May 5, 2023, a request for information seeking input on the availability of zero-emission technologies in the heavy-duty vehicle and port sectors toward establishing funding programs under the Inflation Reduction Act (IRA). EPA requests comment from manufacturers, distributors, installers, fleet operators, and port operators about their products and experience with zero-emission technologies.