The Nickel Report

By March 1, 2024, all establishments that produce pesticides, devices, or active ingredients for pesticides must file their annual production reports for the 2023 reporting year pursuant to Section 7 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C. § 136e(c)(1). Last year, EPA’s Office of Enforcement and Compliance Assurance reminded stakeholders that the agency is poised to take action against companies that violate FIFRA and noted that non-compliance with the requirements related to producing pesticides and devices by EPA-registered establishments is increasing.

On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS or the Service) published a final rule revising the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  89 Fed. Reg. 9920 (Feb. 12, 2024).  The rule revises certain requirements for individual permits – referred to as “specific” permits in the rule – and creates a new program of general permits covering certain activities.  Activities for which general permits will be available include (i) incidental take of bald and golden eagles associated with qualifying wind energy projects, (ii) incidental take of bald and golden eagles associated with power line infrastructure, (iii) certain activities that may cause bald eagle disturbance take, and (iv) certain categories of bald eagle nest take.  We previously reported on the proposed version of the rule, which was published in September 2022.

EPA’s plans to investigate – and eventually establish limits on and liability for – PFAS in wastewater discharges and biosolids crossed a significant milestone on January 31, 2024, with the completion of two new analytical methods to detect these ubiquitous contaminants. The most significant of the two is Method 1633, which provides a standardized quantitative method for laboratories to detect 40 different PFAS compounds, at very low levels, in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue. Method 1621 is a low-cost screening method for the presence of fluorine-containing organic compounds, which could lead to use of the more sensitive Method 1633 to further characterize any PFAS in the sample. EPA’s public statements provide no timeline for seeking approval of these methods for PFAS monitoring of wastewater discharges as part of 40 C.F.R. Part 136, but a Method Update Rule is likely to be proposed before the end of the year.

EPA has big plans for the PFAS data that these two new methods will generate.

For federal agencies seeking to complete rulemaking before the end of the Biden Administration, the clock is ticking, and a number of important deadlines are fast approaching. One of the most important deadlines could be the Congressional Review Act’s (CRA’s) so-called “look-back” provision.

The CRA mandates agencies provide Congress an opportunity to review and possibly overturn rules. To overturn a rule, both houses of Congress must pass a joint resolution of disapproval, and it must be signed by the President. If a CRA resolution is enacted, it invalidates the rule in question and bars the agency from issuing another rule in “substantially the same form” as the disapproved rule. 5 U.S.C. § 801(b)(2). If a rule has already taken effect by the time it is set aside via the CRA, it will no longer be in effect and “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f).

On February 1, 2024, EPA released two proposed rules under the Resource Conservation and Recovery Act (RCRA) that will advance EPA’s PFAS Strategic Roadmap. These two actions would subject certain PFAS—and potentially other emerging contaminants—to RCRA corrective action and may also be a precursor to EPA listing certain PFAS as hazardous waste under RCRA. Once published in the Federal Register, comments on the Definition Rule will be due in 30 days, and comments on the PFAS Hazardous Constituent Rule will be due in 60 days.

In December 2023, federal agencies released their “Fall 2023” Regulatory Agendas that provide an outlook for numerous upcoming regulatory actions on chemicals that could have significant implications for the regulated community. Hunton Andrews Kurth LLP’s chemical regulatory team has provided analyses of these upcoming regulatory actions:

• EPA’s Recent Release of its “Fall 2023” Regulatory Agenda: Upcoming PFAS-Related Actions
• EPA’s Recent Release of its “Fall 2023” Regulatory Agenda: Upcoming Toxic Substances Control Act (TSCA) Actions