On November 27, 2013, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice on "Draft Guidelines; Product Environmental Performance Standards and Ecolabels for Voluntary Use in Federal Procurement; Notice of Availability and Request for Comments." A copy of the notice is available online. Comments are due by February 25, 2014.
According to EPA, the Agency intends for the guidelines to "provide a transparent, fair, and consistent approach to using non-governmental product environmental performance standards and ecolabels in Federal purchasing, consistent with Federal standards policy and sustainable acquisition mandates... Voluntary guidelines for standards and ecolabels would help agencies implement sustainable acquisition requirements of Executive Order 13514 and the Federal Acquisition Regulation (FAR) 23.103 which requires 95% of the government's applicable contract actions to be sustainable. Specifically, the Guidelines for standards and ecolabels could provide clarity regarding the term 'environmentally preferable' for purposes of the Executive Order. In addition to seeking input on the draft Guidelines themselves, EPA is seeking input on how standards and ecolabels should be assessed for conformance to such guidelines."
On December 4, 2013, EPA published a final rule requiring the electronic submission of certain documents under the Toxic Substances Control Act (TSCA). EPA is promulgating amendments to reporting requirements under TSCA Section 4 (including test rules and Enforceable Consent Agreements (ECA)), TSCA Section 5, TSCA Section 8(a) Preliminary Analysis Information Rule (PAIR) at 40 C.F.R. Part 712, and TSCA Section 8(d) Health and Safety Data Reporting Rules at 40 C.F.R. Part 716. A copy of the rule, including a more detailed description of the new reporting requirements, is available online. The rule will become effective on March 4, 2014.
On November 26, 2013, the Obama Administration released its biannual regulatory agenda for all federal agencies. A copy of the agenda is available online. EPA listed several top regulatory priorities, including "taking actions on toxics and chemical safety." The Agency states that it intends to take actions to protect chemical facility safety and security and that it "plans to take a range of identified regulatory actions for certain chemicals and assess other chemicals to determine if risk reduction action is needed to address potential concerns." EPA also lists in the agenda several specific upcoming final regulatory actions it intends to take, including:
• Issuing the 2014 Renewable Fuel Standard (RFS) rule, expected by February 2014; and
• Issuing additional RFS pathways.
EPA has requested a report from the National Academies Committee (the Committee) on options that governments, manufacturers, and retailers can use to compare the safety of various chemicals as they analyze potential substitutes for those chemicals. The report is expected early in 2014. During the initial meeting of the Committee last month, a representative from the Organization for Economic Cooperation and Development (OECD) reported that an OECD committee has identified more than 80 methods for selecting safer chemicals. OECD also intends to release a report identifying them early next year.
On November 29, 2013, EPA published its proposed rule on "2014 Standards for the Renewable Fuel Standard Program" and a "Notice of Receipt of Petitions for a Waiver of the Renewable Fuel Standard." Copies of the proposed rule and notice published in the Federal Register are available online, and online. Comments on both are due by January 28, 2014.
BRAG's coverage of the pre-published versions of the proposed rule and notice is available online.
On December 5, 2013, EPA held a public hearing in Arlington, Virginia, on the proposed rule. The Agency heard from more than 140 stakeholders from every side of the RFS debate, including public officials and farmers, as well as company executives and trade associations representing the corn, biofuels, and oil and gas industries. Witness testimony was generally consistent with previous public comments.
For instance, representatives from the oil and gas industry expressed concern that the proposed rule does not go far enough. They argued generally that even with the proposed reductions to all renewable fuel volume obligations (RVO), the E10 blend wall could still be breached, which would force a restriction in gasoline availability and higher prices at the pump for consumers. A representative from the Union of Concerned Scientists pointed out that EPA should place more emphasis on the market potential of E85 as a solution to the blend wall concerns and option to help meet the statutory RFS RVOs. Representatives from the biofuels industry argued that EPA should revise the proposed rule and include higher RVOs more consistent with the RVO targets included in the RFS statute for 2014. They argued these revisions are needed to protect ongoing investment in the further development and commercialization of U.S. biofuels, especially advanced and cellulosic biofuels.
On November 20, 2013, the United States Environmental Protection Agency (EPA) announced its intent to release for comment proposed Draft Guidelines for Product Environmental Performance Standards and Ecolabels for Voluntary Use in Federal Procurement (Draft Guidelines). EPA states the Draft Guidelines -- developed by EPA, the General Services Administration (GSA), and other federal agencies following several "listening sessions" with a wide range of stakeholders -- are intended to help federal purchasers identify and select greener products and meet sustainability purchasing goals. Under several federal purchasing mandates, including but not limited to Executive Order 13514 (Federal Leadership in Environmental, Energy and Economic Performance) and the Federal Acquisition Regulation (FAR) 23.103, federal agencies must ensure that 95 percent of their acquisitions and contracts are sustainable, such as by buying environmentally preferable products.
The Draft Guidelines and a pre-publication version of the Federal Register notice announcing the availability of the Draft Guidelines are available online. A 90-day comment period will be set once the Federal Register is published, which is expected in early December 2013.
Our full memorandum, with background and analysis, is available on the BRAG website.
On November 19, 2013, EPA's request for comment on its Draft FY 2014-2018 Strategic Plan was published in the Federal Register. In addition, according to the notice, EPA is proposing new FY 2014-2015 Agency Priority Goals. Comments are due by January 3, 2014. A copy of the notice is available online.
As described in the notice, "The Strategic Plan provides the Agency's long-term direction and strategies for advancing human health and the environment." In addition, EPA has made targeted revisions to "[its] existing Plan that seek to advance efforts to address our changing climate, protect our precious water and land resources, and advance chemical safety."
On Wednesday, November 13, 2013, the House Committee on Energy and Commerce held a hearing on CSIA, a bill to reform TSCA. CSIA was introduced earlier this year by Senator David Vitter (R-LA) and the late Senator Frank Lautenberg (D-NJ). Senator Vitter and Senator Tom Udall (D-NM) are now working to move CSIA forward through the legislative process. A Law360 article recently published by Lynn Bergeson contains a detailed discussion of the significance and provisions of this legislation. With 25 bipartisan co-sponsors, CSIA is a "potentially politically viable framework for TSCA reform and renewed hope that badly needed modernization of this ancient law may occur."
The hearing included three panels of nine witnesses and focused on CSIA and potential reform to TSCA. A detailed memorandum on the hearing issued by B&C is available online.
Senators Vitter and Udall are working to address concerns about CSIA raised during a hearing held in July 2013 before the Senate Committee on Environment and Public Works on TSCA reform. The BRAG report on that hearing may be found online.
On Wednesday, November 13, 2013, EPA Administrator Gina McCarthy testified as the sole witness before the House Committee on Science, Space, and Technology on "Strengthening Transparency and Accountability within the Environmental Protection Agency."
While the hearing was held as part of the Committee's annual oversight of EPA, it provided Committee Chair Lamar Smith (R-TX) an opportunity to question McCarthy on several concerns he reportedly had with EPA and appropriate transparency at the Agency. These included reports of EPA officials' use of outside e-mail addresses to conduct business, and questions following EPA's "insufficient" response to a subpoena last summer requesting information about the Agency's confidential health studies that form the basis for EPA regulation of greenhouse gas (GHG) emissions.
Assessments of EPA's performance during the hearing fell along party lines. Committee Democrats led by Ranking Member Eddie Bernice Johnson (D-TX) have publicly criticized Chair Smith for his criticisms of the Agency.
Administrator McCarthy's nomination was held up for several months due to concerns by the Senate Committee on Environment and Public Works Ranking Member David Vitter (D-LA) over sufficient transparency at EPA. It was allowed to go through after Administrator McCarthy pledged to bolster transparency at EPA under her leadership.
On Thursday, November 14, 2013, the House Committee on Energy and Commerce's Subcommittee on Energy and Power, chaired by Representative Ed Whitfield (R-KY), held a hearing to discuss EPA’s proposed greenhouse gas standards for new power plants and draft legislation authored by Chairman Whitfield and Senator Joe Manchin. The hearing included three panels of ten witnesses, including Senator Joe Manchin (D-WV) and EPA Acting Administrator for Air and Radiation Janet McCabe, to discuss a potential legislative proposal by Subcommittee Chair Whitfield and Senator Manchin that would effectively prohibit EPA from promulgating or enforcing its recently released proposed rule to regulate GHG emissions from new power plants and make regulation of GHGs from existing plants contingent on Congressional approval.
Several states and business groups, including the U.S. Chamber of Commerce, support the Whitfield-Manchin proposal. Information on the hearing, including a list of witnesses and the draft legislation, may be found online.