Acta Group Launches CDR Cross-Check™ To Assist Companies In Identifying Chemical Data Reporting Requirements: The Acta Group (Acta^®) announced on April 1, 2020, the launch of CDR Cross-Check™, an ingenious yet simple tool developed and offered by Acta to assist companies in preparing for the 2020 Chemical Data Reporting (CDR) required by the U.S. Environmental Protection Agency (EPA). CDR Cross-Check utilizes the most recent CDR listing information publicly available provided by EPA (currently, 2016 lists) to identify whether all or some of a company’s inventory of chemical substances are subject to CDR under the Toxic Substances Control Act (TSCA) and, if so, at what reporting threshold. CDR Cross-Check will make CDR reporting easier. Visit the CDR Cross-Check website, https://cdr-cross-check.actagroup.com/, for more information and to order a CDR Cross-Check report.

Navigating The Jurisdictional Tightrope Between Biopesticides, Biostimulants, And Related Emerging Technologies, April 29, 2020, 12:00 pm (EDT), Via Webinar: Register for the American Bar Association (ABA) webinar “Navigating the Jurisdictional Tightrope Between Biopesticides, Biostimulants, and Related Emerging Technologies” with Bergeson & Campbell P.C. (B&C^®) professionals deconstructing the jurisdictional boundaries distinguishing pesticides, biopesticides, plant regulators, biostimulants, and related technologies. The webinar will focus on draft EPA guidance intended to clarify the lines between and among those products that are subject to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registration as plant regulators and those biostimulant products not subject to FIFRA registration. The webinar also will focus on new and evolving chemistry and technology issues that may blur some jurisdictional lines or potentially move products from one category to another. Lynn L. Bergeson, Managing Partner, B&C; Lisa R. Burchi, Of Counsel, B&C; and Sheryl Lindros Dolan, Senior Regulatory Consultant, B&C, will present.

Law, Climate Change, And Agriculture: Legal Tools In The Arsenal, April 22, 2020, 12:00 p.m. (EDT), Via Webinar: Register for the International Bar Association (IBA) webinar “Law, Climate Change, and Agriculture: legal tools in the arsenal” covering the role of innovative agriculture practices in combating climate change and highlighting the legal, policy, and institutional changes that will encourage innovation. Lynn L. Bergeson, Managing Partner, B&C, is Vice Chair of the Agricultural Law Section of IBA.

Christopher R. Blunck, Former Special Assistant To The Director Of EPA’s Office Of Pollution Prevention And Toxics (OPPT), Joins B&C And Acta: B&C and Acta are pleased to announce that Christopher R. Blunck has joined our firms as Of Counsel with B&C and Senior Regulatory Specialist with Acta. Over his 30-year career at EPA Mr. Blunck managed or participated in the development of hundreds of TSCA and Toxics Release Inventory (TRI) Program regulations, guidance documents, and policy papers, and his decades of involvement in the regulatory development process at EPA are an invaluable asset to clients seeking to anticipate, address, and resolve regulatory compliance matters.

LEGISLATIVE

House Passes Bill To Extend CFATS Program: On March 14, 2020, the House passed a bill by unanimous consent that would reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program for 18 months (H.R. 6160). The CFATS program will expire on April 18, 2020, without the extension.

Senate Confirms Katherine Lemos To Chair CSB: On March 24, 2020, the Senate Committee on Environment and Public Works announced that the Senate confirmed Katherine Lemos, Ph.D., to be a member and Chair of the U.S. Chemical Safety and Hazard Investigation Board (CSB). The Senate confirmed Lemos by unanimous consent. Dr. Lemos previously served in the Federal Aviation Administration and on the National Transportation Safety Board. She is currently the Director of Programs for Northrop Grumman Corporation’s Aerospace Sector. According to the White House’s June 13, 2019, announcement of the nomination, Dr. Lemos has a distinguished background in system safety, accident investigation, human factors, and advanced technology research and integration. She also has broad experience across the product life cycle in analyzing and promoting product, process, and operational performance.

Senate Committee Gathers Information On AIM Act: From March 25, 2020, through April 8, 2020, the Senate Committee on Environment and Public Works conducted an information-gathering process entitled “S. 2754, American Innovation and Manufacturing Act of 2019: Written Testimony and Questions for the Record.” During this period, the Committee accepted written testimony from any interested party regarding the American Innovation and Manufacturing (AIM) Act of 2019 (S. 2754). Until 4:00 p.m. on April 15, 2020, the Committee accepted written questions for the record from Committee members who wish to ask a submitting party questions. No later than 4:00 p.m. on April 29, 2020, the Committee will electronically accept written responses to questions for the record from submitting parties who received questions from Committee members. The Committee will make publicly available on its website the full record of written testimony and questions for the record compiled during this information-gathering process. The AIM Act would authorize a 15-year phasedown of hydrofluorocarbons (HFC) and would give EPA the authority to regulate a transition to newer refrigerants.

MISCELLANEOUS

California Department Of Pesticide Regulation Announces Limited Enforcement Discretion For Licensing Requirements To Support COVID-19 Control For The Next 90 Days: On April 3, 2020, the California Department of Pesticide Regulation (DPR) announced it would allow enforcement discretion by County Agricultural Commissioners (CAC) for licensing and certification requirements for pesticide applicators who perform sanitization services to control the spread of COVID-19. DPR states in its announcement that, under normal circumstances, a “Pest Control Business (PCB) must always have a Qualified Applicator License (QAL) holder to supervise pest control services. Generally, where a PCB performs sanitization services, the QAL must also be certified in Category A, P, or K” described as follows:

• Category A allows PCBs to perform sanitization or disinfection in residential, industrial, or institutional (RII) use settings such as hospitals, schools, or prisons;

• Category P allows PCBs to perform microbial pest control in RII use settings; and

• Category K allows PCBs to perform health related pest control services under a government-sponsored program.

DPR acknowledges that due to Governor Newsom’s March 4, 2020, “Stay at Home” Executive Order, DPR cannot proctor in-person licensing examinations to certify licensees. DPR thus announced that it will use enforcement discretion by allowing “licensed and registered PCBs to perform sanitization services for the control of COVID-19 if they have a designated individual at each business location with a valid QAL in any category” (emphasis added by DPR). DPR specifies that enforcement discretion applies when all of the following conditions are met:

1. The professional sanitization service is performed for COVID-19 control and only during the next 90 days.

2. The PCB without the specific QAL license category notifies the CAC in writing with an explanation for why the sanitization work is necessary.

3. Examples of necessary work may include situations in which the PCB is the only licensee registered to do business in the county or where other properly licensed PCBs are unavailable to perform COVID-19-related work.

4. The QAL holder ensures that all applicators applying antimicrobials are properly trained and are in strict compliance with label directions and all other applicable laws and regulations.

The announcement states that those who wish to obtain more information should contact Joe Marade, DPR’s County/State Liaison, at joe.marade@cdpr.ca.gov.

DOJ Will No Longer Seek SEPs In Civil Settlements With Private Defendants: On March 12, 2020, the U.S. Department of Justice (DOJ) issued a memorandum to Environment and Natural Resources Division (ENRD) Assistant Attorney Generals and Section Chiefs regarding supplemental environmental projects (SEP) in civil settlements with private defendants. The memorandum notes that some agencies, including EPA, have entered into SEPs, which are settlements that require defendants to expend funds to provide goods or services to third parties in lieu of the payment of penalties. According to the memorandum, these agencies and DOJ relied on the rationale that SEPs do not trade penalties for projects because there is no penalty owed to the government until the settlement is final. The memorandum states that the policy on which EPA and DOJ previously relied to justify these payments recognized that a given SEP can result in direct penalty mitigation of 80 percent (or less). Given the “acknowledged mathematical relationship between penalties and SEPs,” the memorandum states that “the conclusion is inescapable that SEPs violate the Miscellaneous Receipts Act.” Going forward, SEPs will no longer be part of the suite of relief ENRD seeks in its cases, unless specifically authorized by Congress, “both in light of their inconsistency with law and their departure from sound enforcement practices.”

OECA Publishes Criminal Enforcement Case Bulletin Update For December 2019 Through January 2020: EPA published on March 17, 2020, the Environmental Crimes Case Bulletin for December 2019 through January 2020. The bulletin summarizes publicized investigative activity and adjudicated cases conducted by EPA’s Office of Criminal Enforcement, Forensics and Training (OCEFT) Criminal Investigation Division special agents, forensic specialists, and legal support staff. OCEFT investigates violations of environmental laws and provides a broad range of technical and forensic services for civil and criminal investigative support and council on legal and policy matters.

EPA Publishes Species Sensitivity Distribution Toolbox: On March 17, 2020, EPA published the Species Sensitivity Distribution (SSD) Toolbox, which EPA scientists developed to help assessors determine potential risks from chemical exposure, while taking into account the range of sensitivities among different organisms. According to EPA, the SSD Toolbox uses toxicity test results collected from the lab or field from multiple species for a given chemical. Some typical aquatic invertebrates included in these tests are Daphnia magna, Ceriodaphnia dubia, and Hyalella azteca, but EPA notes that the tool can be used for other taxa as well, including fish and terrestrial vertebrates.

EPA Publishes Supplement To Proposed Rule On Strengthening Transparency In Regulatory Science: EPA published a supplemental notice of proposed rulemaking (SNPRM) to the Strengthening Transparency in Regulatory Science proposed rule in the Federal Register on March 18, 2020. 85 Fed. Reg. 15396. EPA notes that the SNPRM “is not a new rulemaking; rather, it provides clarifications on certain terms and aspects of the 2018 proposed rule.” The SNPRM:

• Proposes that the scope of the rulemaking applies to influential scientific information, as well as significant regulatory decisions;

• Defines and clarifies that the proposed rule applies to data and models underlying both pivotal science and pivotal regulatory science;

• Proposes a modified approach to the availability provisions for data and models that would underlie influential scientific information and significant regulatory decisions, as well as an alternate approach; and

• Clarifies the ability of the Administrator to grant exemptions.

On April 2, 2020, EPA announced that it would extend the comment period to May 18, 2020. EPA anticipates promulgating a final rule later in 2020. More information is available in our March 9, 2020, memorandum, “EPA Releases Supplemental Proposed Rule to the Proposed Rule on Strengthening Transparency in Regulatory Science.”

EPA OIG Report States EPA Enforcement Efforts Generally Declined From FYs 2006 Through 2018: On March 31, 2020, the EPA Office of Inspector General (OIG) published a report entitled EPA’s Compliance Monitoring Activities, Enforcement Actions, and Enforcement Results Generally Declined from Fiscal Years 2006 Through 2018. OIG conducted the audit to identify the trends in EPA-led enforcement actions and results from fiscal years (FY) 2006 through 2018. According to the report, EPA’s annual level of compliance monitoring activities, enforcement actions, and enforcement results generally declined throughout the scope of the audit:

• The number of inspections conducted decreased by 33 percent when comparing FYs 2007 and 2018;

• The numbers of enforcement actions initiated and concluded decreased by 52 and 51 percent, respectively, when comparing FYs 2007 and 2018;

• EPA concluded 58 percent fewer enforcement actions with injunctive relief in FY 2018 than in FY 2007;

• EPA concluded 53 percent fewer enforcement actions with penalties in FY 2018 than in FY 2007;

• The total number of supplemental environmental projects decreased by 48 percent; and

• The value of environmental benefit commitments to reduce, treat, or eliminate pollutants varied from FYs 2012 through 2018 but decreased by 64 percent when comparing FYs 2012 and 2018. The number of commitments also decreased by 31 percent when comparing FYs 2012 and 2018.

OIG notes that both funding for EPA’s enforcement program and the number of enforcement staff decreased by 18 percent and 21 percent, respectively, when comparing FYs 2006 and 2018. While OIG conducted the audit, EPA released its FY 2019 annual enforcement measures. According to the report, compared to FY 2018, four of the 15 enforcement measures increased, while 11 continued to decrease. EPA’s enforcement funding and staff also continued to decrease in FY 2019.

SAB Economic Guidelines Review Panel Will Meet April 23: EPA published a Federal Register notice on March 31, 2020, announcing that the Science Advisory Board (SAB) Economic Guidelines Review Panel will hold a public teleconference on April 23, 2020. 85 Fed. Reg. 17873. The purpose of the meeting is to receive an agency briefing, review charge questions, and hear public comments on EPA’s revised “Guidelines for Preparing Economic Analyses.” The Federal Register notice states that the purpose of the document is to define and describe best practices for economic analysis grounded in the economics literature. It also describes Executive Orders and other documents that impose analytic requirements and provides detailed information on selected important topics for economic analyses.

OSTP Extends Comment Period For RFI On Public Access To Peer-Reviewed Scholarly Publications, Data And Code Resulting From Federally Funded Research: On March 31, 2020, the Office of Science and Technology Policy published a Federal Register notice extending the comment period for a February 19, 2020, request for information (RFI). 85 Fed. Reg. 17907. OSTP and the National Science and Technology Council’s (NSTC) Subcommittee on Open Science (SOS) are engaged in ongoing efforts to facilitate implementation and compliance with the 2013 memorandum Increasing Access to the Results of Federally Funded Scientific Research and to address recommended actions made by the Government Accountability Office in a November 2019 report. The RFI aims to provide all interested individuals and organizations with the opportunity to provide recommendations on approaches for ensuring broad public access to the peer-reviewed scholarly publications, data, and code that result from federally funded scientific research. Comments are now due May 6, 2020.

EPA Invites Nominations Of Candidates To EPA’s SAB And SAB Standing Committees: On April 1, 2020, EPA published a Federal Register notice inviting nominations of scientific experts from a diverse range of disciplines to be considered for appointment to EPA’s SAB and four SAB standing committees. 85 Fed. Reg. 18225. The SAB Staff Office invites nominations to serve on the chartered SAB in the following scientific disciplines as they relate to human health and the environment: analytical chemistry; benefit-cost analysis; causal inference; complex systems; ecological sciences and ecological assessment; economics; engineering; forestry; geochemistry; health sciences; hydrology; hydrogeology; medicine; microbiology; modeling; pediatrics; public health; risk assessment; social, behavioral and decision sciences; statistics; toxicology; epidemiology; and uncertainty analysis. The SAB Staff Office is also seeking nominations of experts for possible vacancies on the following four SAB standing committees:

• The SAB Agricultural Science Committee provides advice to the chartered SAB on matters that have been determined to have a significant direct impact on farming and agriculture-related industries;

• The SAB Chemical Assessment Advisory Committee provides advice through the chartered SAB regarding selected toxicological reviews of environmental chemicals;

• The SAB Drinking Water Committee provides advice on the scientific and technical aspects of EPA’s national drinking water; and

• The Radiation Advisory Committee provides advice on radiation protection, radiation science, and radiation risk assessment.

Nominations are due May 1, 2020. EPA anticipates filling the appointments by the start of FY year 2021 (October 2020).

CDTSC Extends Comment Period, Postpones Hearing On Proposed Regulations On PFAS In Carpets And Rugs: The California Department of Toxic Substances Control (CDTSC) has extended the comment period on its proposed regulations that would list carpets and rugs containing per- or polyfluoroalkyl substances (PFAS) as priority products. CDTSC states that due to the threat of COVID-19, the public hearing originally scheduled for April 13, 2020, is being postponed and will be conducted as a virtual hearing. CDTSC will also extend the comment period for the proposed regulations through the date of the virtual hearing. CDTSC will announce the date, time, and specifics of the virtual hearing.

EPA Requests Nominations To NAC And GAC To U.S. Representative To CEC: On April 10, 2020, EPA published a Federal Register notice inviting nominations from a diverse range of qualified candidates to be considered for appointment to fill vacancies on the the National Advisory Committee (NAC) and the Government Advisory Committee (GAC) to the U.S. Representative to the Commission for Environmental Cooperation (CEC). 85 Fed. Reg. 20267. According to the notice, vacancies on these two committees are expected to be selected by spring 2020. Nominations are due May 8, 2020. NAC and GAC held a public teleconference on April 10, 2020, to provide advice to the EPA Administrator regarding the draft 2021-2025 CEC Strategic Plan.

OSHA Issues Enforcement Guidance For Recording Cases Of COVID-19: On April 10, 2020, the Occupational Safety and Health Administration (OSHA) announced that it issued interim guidance for enforcing OSHA’s recordkeeping requirements (29 C.F.R. Part 1904) as it relates to recording cases of COVID-19. OSHA states that under its recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:

• Is confirmed as a COVID-19 illness;

• Is work-related as defined by 29 C.F.R. Section 1904.5; and

• Involves one or more of the general recording criteria in 29 C.F.R. Section 1904.7, such as medical treatment beyond first aid or days away from work.

OSHA notes that in areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: there is objective evidence that a COVID-19 case may be work-related; and the evidence was reasonably available to the employer. OSHA states that employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations pursuant to 29 C.F.R. Part 1904.

OSHA Announces Interim Enforcement Response Plan Intended To Protect Workers During The Coronavirus Pandemic: OSHA announced on April 13, 2020, an interim enforcement response plan for the coronavirus pandemic. The response plan provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHO) for handling coronavirus-related complaints, referrals, and severe illness reports. OSHA states that during the coronavirus outbreak, OSHA Area Offices will use their inspection resources to fulfill mission essential functions and protect workers exposed to the disease. The response plan contains interim procedures that allow flexibility and discretion for field offices to maximize OSHA’s impact in securing safe workplaces in this evolving environment. The response plan outlines procedures for addressing reports of workplace hazards related to the coronavirus. According to OSHA, fatalities and imminent danger exposures related to the coronavirus will be prioritized for on-site inspections. The response plan contains procedures and sample documentation for CSHOs to use during coronavirus-related inspections. OSHA notes that workers requesting inspections, complaining of coronavirus exposure, or reporting illnesses may be protected under one or more whistleblower statutes and will be informed of their protections from retaliation. The response plan took effect immediately and will remain in effect until further notice.