Articles

The standard of judicial review for most critical TSCA determinations under section 19 is “substantial evidence in the record taken as a whole”. This is a tough standard, considerably more rigorous than the Administrative Procedure Act (APA) standard under section 706, where agency action will be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The recent Loper Bright decision overturning Chevron has...

On 28 March, the Environmental Protection Agency (EPA) issued its long-awaited first final risk management rule under the Toxic Substances Control Acta (TSCA), banning the import and eventual use of chrysotile asbestos. This is the only form of asbestos known to be used in the US. You may be thinking now that because your company does not import or use asbestos, this does not affect you. You should care about it because the EPA’s approach...

The US Environmental Protection Agency (EPA) recently issued final risk management rules under the Toxic Substances Control Act (TSCA) banning certain uses of two chemicals: chrysotile asbestos and methylene chloride. The identity of these two chemicals is less important than the process by which the EPA concluded that the banned uses of these chemicals pose unreasonable risks to human health and the environment, and the nature and intrusiveness of the workplace and other restrictions the...

A federal district court recently issued an Order to enjoin enforcement of California’s Proposition 65 warnings related to titanium dioxide in cosmetics and personal care products. This is the third case successfully challenging Prop 65 warnings on First Amendment grounds, with previous cases involving glyphosate and acrylamide, as discussed in our FIFRA blog. These are important cases with implications for companies facing Prop 65 warnings for other substances where the underlying...

The U.S. Environmental Protection Agency (EPA) issued on May 8, 2024, a final rule under the Toxic Substances Control Act (TSCA) to address the unreasonable risk of injury to health presented by methylene chloride under its conditions of use (COU). To no one’s surprise, the EPA banned most uses of the chemical. However, surprisingly, the EPA also adopted a de minimis threshold to account for impurities and the unintended presence of methylene chloride. The final...

A critical element of the U.S. Environmental Protection Agency’s (EPA) Draft National Strategy to Prevent Plastic Pollution (Strategy) is to “improve post-use materials management.”  The Strategy identifies potential voluntary actions EPA believes can be implemented to prevent plastic waste. Plastics recycling, both mechanical and “advanced,” is core to achieving improved post-use plastics materials management. Post-use plastics management, in turn, is core to achieving circularity....

This past March, the U.S. Environmental Protection Agency (EPA) issued its first final risk management rule under the Toxic Substances Control Act (TSCA) to address the unreasonable risk of chrysotile asbestos to human health under certain conditions of use (COUs). Even if asbestos isn’t in your supply chain, don’t hit the brakes on reading further. All TSCA stakeholders need to understand this rule because it is a template for how the agency will address risk...

On March 6, 2024, the U.S. Environmental Protection Agency (EPA) promulgated revised National Ambient Air Quality Standards (NAAQS) for particulate matter (PM). The final rule was signed on Feb. 7, 2024. New NAAQS standards are always controversial, and this one is no exception. ...

On Jan. 26, 2024, the U.S. Occupational Safety and Health Administration (OSHA) issued updated enforcement guidance regarding compliance with OSHA’s standard for the Process Safety Management of Highly Hazardous Chemicals (PSM standard). The new directive, CPL 02-01-065, provides much-needed updates to the guidance issued in 1994 and explains OSHA’s current thinking regarding compliance with the PSM standard. ...

First, let’s look at U.S. policy and regulatory developments. In this election year, competing priorities will dominate U.S. Environmental Protection Agency (EPA) actions. The agency will seek to complete as many actions as possible while tempering its expectations to avoid any significant pre-election missteps. While there is no consensus on whether the Biden administration’s commitment to policy shifts in chemical management has elicited desirable results, reasonable people will agree it...