Congress, the media, and the public have given significant attention to remarks this week by a commissioner of the Consumer Product Safety Commission ("CPSC") indicating that the agency would be considering a federal ban on gas stoves due to their health effects. The suggestion of a ban on gas stoves has drawn comments from bipartisan policymakers in both chambers, and even the White House has weighed in against the prospect of a potential ban.
The CPSC is unlikely to ban gas stoves in the near future, although it has the authority to ban unreasonably dangerous products that cannot be made safe, and has done so with toxic substances in children's products and other product categories in the past. A CPSC rulemaking on mandatory safety standards for gas stoves, however, is a possibility, and that process may drive the establishment of voluntary industry standards by a standards-setting body. Additionally, other federal and state regulators have recently sharpened their focus on indoor air quality and gas-powered appliances, for both health and environmental reasons. The Environmental Protection Agency ("EPA"), for instance, is undertaking several activities related to indoor air quality. And the California Air Resources Board ("CARB") recently adopted a plan that would effectively prohibit the sale of gas-powered space and water heaters in California by 2030.
Particularly with regard to federal regulatory activity on gas stoves and other gas-powered appliances, potentially affected parties will have ample opportunities to help shape the outcome of any mandatory or voluntary product standards put in place or accepted by the CPSC, and to engage with other regulators. This alert provides an overview of recent and emerging legislative and regulatory activity related to indoor air pollution, focusing particularly on activity by the CPSC and EPA. Companies—both those with interests in gas stoves and those concerned with indoor air quality issues more broadly—should carefully follow indoor air quality developments, including in their interactions with regulators, given the increased focus on this area.
Consumer Product Safety Commission
The Consumer Product Safety Act ("CPSA") tasks the CPSC with regulating the safety of consumer products, which the statute broadly defines as products sold or used by consumers. The CPSA exempts from CPSC jurisdiction most items subject to regulation by another federal agency, including food, drugs, tobacco, pesticides, motor vehicles and motor vehicle equipment, and firearms.The CPSC has five commissioners and is bipartisan by statute, although one seat is currently vacant.
The CPSC has the power to promulgate product safety standards that are "reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with such product." The public, including industry, may offer written comments in a CPSC rulemaking on product safety standards, and the CPSC must "give interested persons an opportunity for the oral presentation of data, views, or arguments." Additionally, if the agency receives a submission of a voluntary safety standard and determines that the standard is "likely to result in the elimination or adequate reduction of the risk of injury" and that "it is likely that there will be substantial compliance with such standard," it must terminate the rulemaking and rely on the voluntary standard.
The CPSC faces a relatively high bar to implementing a mandatory safety standard, including the requirement that it make a finding that "the rule imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the rule is being promulgated." There is an even higher bar for banning a product, which requires a finding that there is "no feasible consumer product safety standard [that] would adequately protect the public from the unreasonable risk of injury associated with such product." Both mandatory standards and a ban could be challenged in federal court, and most courts considering CPSC mandatory standards or bans have subjected the agency's required findings to stringent scrutiny.
Although Commissioner Trumka's recent remarks gained attention due to his reference to a potential ban on gas stoves, the adoption of voluntary or mandatory standards is a more likely outcome. There is a clear CPSC interest in the topic. The agency's fiscal year 2023 operating plan includes as a priority a focus on "chronic hazards, including hazards associated with ...万博体育app手机登录gas stoves" and sets a target date of March 1, 2023, for agency staff to provide a plan to the commissioners for seeking public input on the topic. In considering the operating plan, the Commission unanimously accepted, as part of a larger manager's amendment, Commissioner Boyle's addition of "chronic hazards" to the agency's priorities. During that meeting, Commissioner Trumka offered an amendment to begin rulemaking on standards for gas stoves, but he withdrew that amendment due to lack of support. The instruction to begin seeking public input on gas stoves was a fallback, which the Commission adopted unanimously.
The agency is also facing congressional pressure to begin promulgating safety standards for gas stoves. In December, on the same day that a study was published indicating that gas stoves may be a major cause of childhood asthma, a group of House and Senate Democrats wrote the CPSC to urge the agency to begin a rulemaking to address health risks from gas stoves. The letter included a focus on the impacts of indoor air quality on vulnerable populations, which is consistent with the priority listed in the CPSC fiscal year 2023 operating plan to "enhance agency data collection and analysis of product safety incidents, injuries, and deaths to identify vulnerable populations" and to "allocate safety work to better address any existing safety disparities among such identified vulnerable populations."
Environmental Protection Agency
The EPA has also shown a growing interest in indoor air quality, including related to emissions from gas-powered appliances. The EPA has expansive statutory authority to research, but not regulate, indoor air quality issues under the Radon Gas and Indoor Air Quality Research Act of 1986. Despite lacking authority to regulate in this area, the EPA's research can be authoritative and lead to regulatory and legislative activity and industry scrutiny. For example, the EPA's 1993 report on the risks of secondhand smoke exposure influenced public understanding of the dangers of secondhand smoke and the subsequent proliferation of smoke-free laws. A recently published report by the National Academies of Sciences, sponsored in part by the EPA, stressed the importance of issues relating to indoor chemicals, and the effect of these chemicals on air quality and human health.
As part of its efforts on indoor air quality, EPA has also become involved with indoor air quality sensor technology. Most notably, the EPA recently published guidance on the benefits and limitations of low-cost air quality monitors. While noting that air quality monitors may be helpful in measuring indoor pollution, the EPA also cautioned consumers that there is limited information as to the accuracy of these monitors and noted that there is "currently no widely accepted air concentration limits for most pollutants indoor." The guidance also reflects increased concerns about indoor air pollution, including from stoves, stating that "[i]n some instances, you may wish to use one or more monitors to compare pollutant levels or environmental factors before, during, and after an activity like cooking." The development of indoor air quality monitors may be significant to providing alternatives to simply banning products, by providing consumers with information they can use to respond to indoor air quality issues. Similarly, enhanced research regarding indoor air pollution may provide greater clarity about pollutant levels of concern indoors.
The EPA also has jurisdiction under the Federal Insecticide, Fungicide, and Rodenticide Act over air-cleaning devices if device claims include pest or other micro-organism mitigation (e.g., air filters, air purifiers). The agency has significantly increased its focus on these devices due to the COVID-19 pandemic, and we can expect a continued concern with indoor air quality issues to result in continued EPA engagement regarding this category of products.
As additional evidence of the agency's interest in these issues, the EPA published a request for information in October 2022, seeking input on "actions, strategies, tools and approaches that support ventilation, filtration and air cleaning improvements, and other actions" to promote indoor air quality, with a focus on reducing disease transmission indoors. The request for information was prompted, in part, by the Biden Administration's Clean Air in Buildings Challenge, which calls on building owners and operators to improve indoor air quality and reduce the spread of COVID-19.
Finally, in exercising its authority to address outdoor air pollution, the EPA may affect indoor appliances and indoor air quality. For example, in August 2022 environmental groups, including the Sierra Club, petitioned the EPA to list heating appliances (including indoor appliances such as space heaters, gas stoves, and dryers) as a source category under the Clean Air Act and to issue performance standards.
State and Local Legislation
State and local regulators and legislative bodies have also engaged in activity related to gas-powered appliances.In addition to the California Air Resources Board plan that would effectively prohibit the sale of gas-powered space and water heaters in California by 2030, amendments to the state's building code that strengthened ventilation standards and established requirements for single-family homes to be ready for electric appliances went into effect on January 1. The Los Angeles prohibition on gas appliances in new buildings will be effective this month, and in November 2022, the largest county in Maryland passed a law requiring all new construction to be fully electric by the end of 2026. Numerous other local governments have enacted their own gas bans, although there is currently ongoing litigation regarding whether these gas bans may be preempted under the Energy Policy and Conservation Act. Additionally, these gas bans have prompted backlash from some state governments. As of June 2022, 20 states have passed legislation prohibiting local communities from enacting gas bans, and legislators in states where such "preemption legislation" failed may try again in the coming year.
Product manufacturers, retailers, and consumers can expect continued state and local legislative activity on gas appliances in 2023. For example, New York's Climate Action Council plan, passed in December, contains recommendations for implementing New York's 2019 Climate Leadership and Community Protection Act. The plan calls for making buildings more energy efficient through a mix of adopting zero-emission building codes and standards and providing incentives to transition to energy efficient appliances. Cities such as Denver and Eugene, Oregon, are also considering bans on natural gas in new residential buildings.
Non-Governmental Organizations
Non-governmental organizations are likely to continue advocating for regulation of gas-fueled appliances and indoor air quality. For example, a 2022 study conducted by the U.S.公众兴趣研究集团教育基金和Sierra俱乐部发现,消费者在各零售商购物可能无法了解与燃气炉和通风需求相关的健康风险,此外,2022年6月,美国医学协会传递了
Opportunities for Companies
Clearly, indoor air quality concerns are not going away, and we expect continued regulatory and policymaking focus on these issues. Companies selling products that may contribute to indoor air quality issues should consider monitoring these developments, participating in rulemaking and legislative processes, and proactively taking steps to evaluate and mitigate any indoor air quality risks (e.g., enhanced ventilation, monitoring), and develop a legal and regulatory strategy. Others may want to consider both the benefits and the risks associated with providing air-cleaning and air-monitoring technologies to consumers, which will continue to be an area of significant regulatory and legislative focus.
If you have any questions concerning the material discussed in this post, please contact the authors.
Taken together, EPA's recent actions are significant and provide opportunities for companies to develop novel products that could have significant public health benefits. But they also highlight that significant uncertainty remains in this area, which presents risks that companies must carefully navigate to ensure regulatory compliance.
- Residual Antimicrobial Products
EPA's guidance regarding residual antimicrobial products sets out a new framework governing products that seek to make claims of residual efficacy against viruses or bacteria. This is significant: in the wake of the COVID-19 pandemic, the ability to use a product to kill viruses and bacteria on a surface not only at the time of application, but for weeks, months, or even years thereafter, has the potential for significant public health benefits. EPA had provided interim guidance in October 2020, but is now providing more detailed guidance and a test method. EPA's new guidance distinguishes between three categories of residual products: (1) residual disinfectants, (2) antimicrobial surface coatings and films, and (3) fixed/solid surfaces, such as copper, or other impregnated materials.
Residual disinfectants are essentially standard disinfectants demonstrating residual efficacy, and may make claims that they "kill" microbes for up to 24 hours after application.Coatings and films cannot make "kill" claims, and instead must contain disclaimer language, including the statement that the product is not a disinfectant but "can provide some additional protection against microorganism(s)] for up to X days." Fixed/solid surfaces and impregnated materials—for example, a copper door knob—may make claims such as the following: "kills 99.9% of [insert microorganism/s] within 1-2 hours of exposure when used as part of a comprehensive infection control program/protocol."
For second and third categories of products (surface coatings and fixed surfaces), a "stewardship plan" must be included as a condition of registration. The stewardship plan must address "the proper sale (including advertising and promotional materials), distribution, and responsible use of the supplemental residual coatings and antimicrobial surface products." EPA suggests that plans could include elements such as outreach to infection-control specialists regarding product efficacy and appropriate use!万博体育app手机登录development of a website to convey accurate information about the product and to "correct any false or misleading third-party statements or publications," and participating in regular meetings with EPA and others to discuss the product.
In requiring a stewardship plan, EPA is signaling that it intends to closely monitor these products, likely in part out of concerns that end users may view these products as a substitute for standard disinfection and thus not take adequate precautions. By making the registrations conditional on implementation of a stewardship plan, EPA has the ability to cancel the registration in a more streamlined fashion as compared to an unconditional registration.
Accordingly, companies developing products for which a stewardship plan will be required will need to carefully develop and robustly implement their stewardship plan, to mitigate the risk of a potentially abrupt registration cancellation.
Companies interested in developing these types of products, or adding claims to existing products, will need to generate appropriate data and secure registration with EPA (and the states) before making these claims. Applicants may also need to develop and secure EPA approval of test methods if they wish to make differing claims or seek to use products on use-sites not within the scope of EPA's guidance (for example, EPA's guidance for surface coatings and fixed surfaces does not cover porous surfaces). Ultimately, while this guidance provides a significant amount of information regarding these product categories, numerous questions remain about how EPA will implement it.
- Air Sanitization & Indoor Air Quality
The registration of the first product approved to kill both viruses and bacteria in the air (rather than just bacteria) is also significant: EPA has now approved a product that can kill 99.9% of viruses in the air if used as directed, and so there is now an opportunity for pesticides to be developed to directly combat the spread of viruses in the air. That said, significant challenges likely remain in developing products that are both effective and easy to use to treat the air. That is demonstrated by the instructions for the approved product, which may pose some practical issues—they call for closing or covering "all doors, windows, air vents and returns" in the room, spraying for 30 seconds, and then leaving the room for 12 minutes. The instructions also note that there is "no residual effect after room is reopened." Still, this product provides a novel use, and may pave the way for other types of registered pesticides that kill airborne viruses and bacteria.
As to the other category of EPA-regulated products that are intended to kill viruses or bacteria in the air—pesticide devices—EPA has not provided additional guidance. However, on October 5, 2022, EPA's Office of Radiation and Indoor Air requested comment regarding indoor air quality matters, and announced its intent to "promote and advance the widespread adoption of actions that lead to improvements in indoor air quality .... to help mitigate disease transmission (e.g., COVID-19)." Among other issues on which EPA seeks comment are (1) what the federal government can do to help improve "ventilation, filtration, and air cleaning practices to reduce the risk of disease transmission," (2) whether and how to develop a building recognition program relating to "ventilation, filtration, and air cleaning," and (3) "qualitative or quantitative features could be helpful in assessing or describing ventilation, filtration, and air cleaning parameters in a building." Because many of these cleaning and filtering technologies are pesticide devices, stakeholders may want to submit comments to EPA, which are due by December 5, 2022.
环境保护局发布三份信息请求 关于回收问题,这是分配资金和执行去年《基础设施投资与就业法》(通称双党基础建设法)所载任务的第一步EPA请求信息程序主要面向改善消费者垃圾回收:
图类高度:自动机abjectivity-left数据对齐>IIJAsec70401bbrbrbrbrbrbr>(2) 建立程序促进电池回收,为电池生产者和消费者开发电池和其他形式的通信材料自愿标签指南,说明电池关键材料的复用和回收IIJAsec70401cabr+++br+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++br信息电池回用和回收通信素材面向电池生产者和消费者EPA在每个类别中列出了一系列关于当前回收实践的具体问题,例如:The current recycling rate in the United States—about 32 percent—is well below what it could be. EPA has set a target of 50% by the end of the decade, and last year published the agency's first ever national recycling strategy. These requests for information focus on some of the most commonly cited reasons for the low rate, including consumer attitudes toward recycling and poor infrastructure in many parts of the country.
The RFIs should be of interest to a broad set of stakeholders. EPA's desire to better understand battery recycling practices is of particular note, given the prevalence of batteries in modern consumer products, and the importance of energy storage solutions to the Biden Administration's climate goals. The guidelines developed by EPA could ultimately become the basis for either federal or state mandatory requirements. Manufacturer take-back programs are also specifically mentioned, suggesting that EPA may eventually consider extended producer responsibility for these products, a trend that is prevalent in a number of states.响应这些请求的书面评论和信息必须在2022年7月25日或之前收到。 EPA资源保护恢复局今年将在全国各地主办虚拟会议。
On May 24, 2022, the National Academies of Sciences released a report, sponsored by EPA, CDC, and others, on indoor chemistry and air quality issues. The report stresses the importance of these issues given that "people spend, on average, more than 80 percent of their time" in indoor environments, "often in close proximity to sources and processes that emit chemicals" and biological pollutants. A main theme of the report is that there remain many outstanding questions in this area, and that "the management of indoor chemistry is at a nascent stage," but rapidly evolving.
Several aspects of the report are likely to be of particular interest to companies that market products for indoor use, particularly air cleaning and air sensor products.
First, the report underscores the importance of indoor air quality, an issue that has gained increased prominence as a result of the COVID-19 pandemic, and discusses various air-cleaning technologies. The report noted the importance of "air-cleaning technologies," while stating that for some technologies, "[t]he lack of testing and regulation has led to rampant unsubstantiated claims about efficacy and health benefits of devices. The potential health risks and benefits resulting from their use warrant further investigation and potential certification or regulatory oversight." The report suggested that one way to address these concerns would be the development of "[s]tandardized consensus test methods."
The report's focus on this issue highlights that companies that market air-cleaning devices should ensure that they are in compliance with all applicable regulatory requirements, such as EPA's requirements for pesticide devices, and maintain adequate substantiation for the claims made for their air-cleaning devices. Other regulatory requirements, including those imposed by FDA, the FTC, states, and others may also apply, depending on the device's intended use and the claims made for the device. This has been an area of heightened focus since the start of the COVID-19 pandemic, and companies that are not compliant run the risk of agency enforcement actions, consumer lawsuits, and other adverse actions.
Second, the report notes a trend of the "increased use of consumer-grade indoor air quality monitors," which "may help improve indoor air quality and present opportunities for citizen science" by providing actionable information regarding indoor air quality issues in real time.However, the report also observed that some devices may suffer from "potential accuracy and precision performance issues," and that effective use of these devices would require users to be "equipped with enough knowledge to interpret the information they provide." Similar to air-cleaning devices, the report suggested "[c]ertification processes for consumer-grade sensors" and the development of "consensus test methods" may be appropriate, noting that test methods for PM2.5 and CO2 are being developed.
Companies developing these sorts of sensors should carefully consider both the accuracy of the information those sensors generate, as well as the information and recommendations that are provided to users of those sensors. Again, regulatory and litigation risks may exist if inaccurate information or recommendations are provided.
Third¸ echoing recent Biden Administration themes, the report noted that indoor air quality can have particular environmental justice considerations due to the "potentially unique indoor environments documented in low-income, rural, and cold-climate areas as well as in communities of color." The report also noted that indoor air quality issues also have cross-cutting linkages with climate change, outdoor air quality, and energy efficiency considerations, which the report indicated warrant further study.
Finally, the report observed that management of indoor air quality poses significant regulatory challenges, including because of the "inherent challenges in regulating non-occupational indoor air quality, such as privacy, personal liberty, and property rights." The report suggested that, moving forward, a combination of "[b]uilding codes, standards, and guidelines," as well as regulation of "emission factors of new and recycled products introduced indoors," and of indoor-air cleaning technologies and sensors, may all be part of a set of "crosscutting, multipronged … solutions."
The Biden Administration has signaled its willingness to resume the practice of including supplemental environmental projects (SEPs) in settlements by swiftly revoking Trump Administration memoranda which formally eliminated their use. This is an important development that regulated entities can benefit from when they face investigations and enforcement proceedings. Although further clarification from the Department of Justice is expected in this area, targets in potential enforcement actions can begin to prepare now.
What are SEPs, and what occurred in the Prior Administration?
A SEP is an environmentally beneficial project that a defendant agrees to complete as part of a settlement of an enforcement action. The crux of a SEP is that the project is not required by law. In exchange for performing a SEP, EPA or the Department of Justice typically seeks a smaller civil monetary penalty payable to the government than it would otherwise.
SEPs have historically been popular with settling defendants, who have felt they can benefit more from projects with concrete environmental benefits than from paying a civil penalty. SEPs, for example, may provide opportunities to rebuild a business after a violation, or help overcome the reputational issues that come with enforcement proceedings. They have also been popular with regulators, who have felt that they are a meaningful way to advance environmental protection.
As described in our prior post, the Department of Justice under the Trump Administration engaged in a concerted effort to eliminate SEPs. The effort included dozens of pages of formal memoranda on the topic, culminating with a March 2020 memo that eliminated SEPs from settlements entered into by DOJ going forward. The March 2020 memo argued that SEPs were not only unsound policy, but also illegal absent further congressional action because they violated statutes regarding agency appropriations and receipt of funds. The latter argument was an attempt to bind future Administrations, towards permanently removing SEPs from federal enforcement.
But the Trump Administration's efforts did not convince the Biden Administration. Pursuant to President Biden's day one environmental executive order, DOJ began review of a statement of policy containing some of the SEP limitations articulated in the Trump memoranda. And, in a brief memo issued two weeks later, DOJ unceremoniously revoked all the other memoranda restricting SEPs.[1] These actions are an extraordinary reversal in light of the Trump Administration's purported attempts to construe governing law. The timing of this initiative—beginning on the first day of the new Administration, well before the announcement of DOJ's environmental leadership—also underscores the fundamental disagreement with the prior practice.
What is the current status of SEPs?
Although the Biden Administration has worked to undo the prior policies prohibiting SEPs, neither the Department of Justice nor EPA has outlined in detail the role of SEPs going forward, or what projects might qualify. Additional guidance regarding SEPs is likely to come after political leadership at the Department of Justice is confirmed.
There has not yet been an uptick in SEPs in proposed consent decrees or administrative settlements, perhaps reflecting the fact that the new Administration has not yet offered a legal justification for the practice. DOJ and EPA have announced at least one consent decree involving a SEP since the inauguration. The subject matter of that project—reduction in air emissions from diesel engines—is explicitly authorized by Congress, and projects addressing such emissions continued to be authorized by the Trump Administration even as SEP restrictions were promulgated.
What can be done now to take advantage of this shift in policy?
Although the Biden Administration has not yet clarified the role of SEPs going forward or their legal basis, companies currently facing investigation and potential enforcement action need not wait for additional formal pronouncements to begin to take advantage of this shift in policy. There are a number of concrete steps that can be taken to begin to identify and develop a potential project, including:
- Consider type and the amount of potential environmental harm.SEP历史需求与违反解决法相关联:例如,水载污染物排放解决方案可规定免费筛选潜在受影响人群与释放或土地获取可能提供水载污染物自然过滤区相关联的疾病,即使环境不易量化效果(例如违反记录法),法律设计避免的伤害类型将通报可用项目范围。
[1] Unlike the memoranda, the statement of policy was codified in the Code of Federal Regulations, and Trump Administration officials have publicly suggested that this may present some hurdle to renewed use of SEPs.但这些政策声明对该部不具有约束力,有关各方过去在执行时曾遇到障碍。大堂BluffsShale石油公司 ,796F2d533537Cir市egies“不需要单纯泛泛政策声明”(变换和内部引号省略)United States vMohamud 号10-475-KI,2011 WL654964,at#5或二月23,2011年(DOJ向法庭表示政策声明非约束性)em>Hatfill vAshcroft ,404F仿真2d 104 1212005年DOJ政策声明不产生私人行为权。DOJ尚未撤销或修改政策声明!BidenDOJ备忘录中未提及该词 。
EPA recently released a compliance advisory addressing UV lights that make claims to mitigate the novel coronavirus (or other viruses or bacteria), which the agency regulates as pesticidal devices under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). While the advisory largely reiterates past guidance relating to pesticidal devices, which this blog previously discussed, it does underscore that EPA is particularly focused on UV lights, and contains three important cautions for companies making claims that their UV light products kill the coronavirus or other microbes.
First, EPA has emphasized that the efficacy of UV lights can vary based on "a variety of factors including, but not limited to, the device's duration of use, distance of the light from the surface intended to be treated, the UV wavelength, the specific pest being targeted, the strength or wattage of the UV light bulb, the age of the UV light bulb, shadow areas or other factors." Accordingly, companies making pesticidal claims for their UV lights should ensure that they are providing appropriate directions for use, and that the efficacy data they generate in support of their claims is generated consistent with those directions for use as well as the other characteristics of the product. Companies may also wish to generate efficacy data in a variety of contexts (e.g., with aged bulbs, on different types of surfaces) to ensure that there are efficacy data supporting the claims for the life of the product, and in the various contexts in which it may be used.
Second, EPA has noted that it "has been receiving complaints that UV light devices may be in violation of FIFRA.EPA继续关注这些装置并声明打算采取执法行动,因此制造或分发紫外线灯的公司应考虑审查它们的主张、营销材料和辅助数据,以确保其产品与FIFRA兼容性。
归根结底,如同早先的咨询意见一样,EPA没有澄清哪种效果数据足以为UV灯或其他杀虫剂装置提供corona病毒索赔。The California Air Resources Board unanimously adopted the Advanced Clean Trucks rule, which is designed to accelerate the adoption of zero-emission medium and heavy duty vehicles ("ZEV"). By 2045, 100% of new trucks sold in the state will be ZEVs, consistent with the state's broader goal of becoming carbon neutral by that year.
The rule's main component is a ZEV sales quota. Manufacturers who certify Class 2b through 8 chassis or complete vehicles with combustion engines will be required to sell zero-emission trucks as an increasing percentage of their annual California sales:
| Model Year | Class 2b-3 | Class 4-8 | Class 7-8 Tractors |
| 2024 | 5 | 9 | 5 |
| 2025 | 7 | 11 | 7 |
| 2026 | 10 | 13 | 10 |
| 2027 | 15 | 20 | 15 |
| 2028 | 20 | 30 | 20 |
| 2029 | 25 | 40 | 25 |
| 2030 | 30 | 50 | 30 |
| 2031 | 35 | 55 | 35 |
| 2032 | 40 | 60 | 40 |
| 2033 | 45 | 65 | 40 |
| 2034 | 50 | 70 | 40 |
| 2035 | 55 | 75 | 40 |
The new rule is part of CARB's broader strategy to target emissions from trucks. According to CARB estimates, heavy duty diesel vehicles emit roughly one quarter of smog-forming nitrogen oxides (NOx) within the state, despite accounting for roughly only seven percent of vehicles registered. Later this year, CARB is expected to enact a rule that would make NOx standards more stringent by a factor of ten, which would create an incentive for manufacturers to move towards ZEVs. The agency also is also implementing programs to control emissions from vehicles already in use, such as continuing to strengthen the heavy duty onboard diagnostics program it pioneered, and developing a heavy duty inspection and maintenance program.
Upon adoption of the rule, CARB said it was zeroing-in on air pollution in the most disadvantaged and polluted communities adjacent to ports, railyards, distribution centers and freight corridors. And the rule specifically cites as its purpose reduction of emissions of not only greenhouse gases, but criteria and toxic air pollutants as well.
The mandate operates through a deficit and credit accounting mechanism. Deficits are calculated for each model year by applying the percentages in the table to a manufacturer's annual sales volume, along with weight class modifiers (ranging from 0.8 for vehicles in the Class 2b-3 group, to 2.5 for vehicles in the Class 7-8 tractor group). Credits are generated by sales of ZEVs and NZEVs—near zero emission vehicles—which are plug-in hybrid electric vehicles with a minimum all-electric range. For each model year, manufacturers must obtain credits in excess of their deficits for all truck categories and specifically for the Class 7-8 tractor category. Credits may be traded and banked, but have a limited lifetime. The rule also contains a fleet monitoring component, requiring large employers including retailers, manufacturers, brokers, and others to provide information about shipments, shuttle services, and fleet operations.
California must seek a waiver of preemption from U.S.EPA执行更严格机动车标准前。 CARB决议通过规则指示机构向EPA提交规则并请求放弃先发制人或确认规则属于现有放弃范围The Clean Air Act requires EPA to grant a waiver unless it finds that California does not need the standards to meet compelling and extraordinary conditions, the state's standards are not, in the aggregate, as protective as federal standards, or there is inadequate lead-time for the development and application of the requisite technology. Although EPA has historically granted California's waiver requests, EPA under the Trump Administration withdrew California's waiver to enforce its Advanced Clean Car program for light-duty vehicles, which includes both the state's more stringent greenhouse gas standards as well as its ZEV mandate. Withdrawal of the waiver has been challenged in the D.C.电路上诉法院目前正在诉讼中.
California州获EP豁免新规则,很可能产生全局效果. 多州,特别是东北州,表示支持新规则,并可能选择使用清洁空气法第177节将它应用到自己的程序中. 这可能为ZEVs创建国家市场,帮助实现程序成功所需的燃料基础设施.EPA recently released a compliance advisory addressing pesticidal products that make claims to mitigate the novel coronavirus. While the advisory largely reiterates past guidance relating to pesticides, EPA has increased its emphasis on pesticidal devices, such as UV lights and ozone generators, which are subject to their own distinct set of regulations.
Most notably, EPA has emphasized that device marketers must have adequate data to support any claims they make to kill or mitigate the coronavirus. EPA advises that "[m]aking false or misleading labeling claims about the safety or efficacy of a pesticidal device may result in penalties under FIFRA.万博体育app手机登录Please note that ozone generators, UV lights and other pesticide devices may not be able to make claims against coronavirus where devices have not been tested for efficacy or safety for use against the virus causing COVID-19 or harder-to-kill viruses." (emphasis in original). The guidance also reminds manufacturers that devices must be produced in an EPA-registered establishment. Other requirements not mentioned in EPA's guidance, such as the need to maintain proper records and comply with requirements to import devices, also apply to pesticidal devices.
EPA has in the past brought significant enforcement actions against device manufacturers. For example, in 2013, EPA obtained a $2.68 million penalty relating to the production and sale of pesticidal devices.
The ongoing pandemic raises the question whether EPA should consider developing additional guidance to device manufacturers—potentially in the form of "safe harbor" guidance—describing efficacy data that the agency would regard as presumptively sufficient. Notably, the recent EPA Science Advisory Board draft report on COVID-19 issues observed that "[t]here are ample studies showing that UV, ozone, and heat (steam) are effective for virus inactivation at well described doses (e.g., temperatures)...万博体育app手机登录. the SAB recommends that the EPA include[] this issue in[] a guidance document." The report also observed that UV disinfection within HVAC systems could be a potential method of mitigating coronavirus transmission indoors.
Another possibility would be for EPA to create a voluntary program that would allow device manufacturers to submit efficacy data to EPA, in exchange for being pre-approved to make anti-coronavirus claims. One potential model would be EPA's "Safer Choice" program, which is a voluntary initiative that allows pesticide registrants to submit safety and efficacy data for EPA to review, with qualifying products allowed to use the "Safer Choice" label.
Safe-harbor guidance or the creation of a voluntary program would arguably be consistent with Executive Order 13924, released last month, which directs agencies to "accelerate procedures" for regulated parties to obtain "pre-enforcement rulings" "with respect to whether proposed conduct in response to the COVID-19 outbreak … is consistent with statutes and regulations administered by the agency." Such guidance or program might allow for EPA to provide greater certainty to consumers and device manufacturers, while remaining within the scope of EPA's authority to regulate pesticidal devices, which is more limited than its authority to regulate pesticides. See 41 Fed.瑞格51 065万博体育app手机登录19, 1976) (noting differences between device and pesticide regulatory authority).
At the same time, such guidance could raise concerns. For example, if EPA were to effectively treat any such guidance as binding on device manufacturers, that could potentially run afoul of Executive Order 13892 (as well as the Administrative Procedure Act), which generally prohibits guidance documents from imposing "new standards of conduct" on regulated parties. Unduly prescriptive or narrow standards could also discourage innovation in the pesticidal device industry.
To date, EPA has not yet made clear whether it will provide additional guidance relating to pesticidal devices and COVID-19, and if so, what the nature and scope of such guidance might be. Interested parties should keep a close eye on further developments in this area.
The Atlantic Richfield decision may have the effect of avoiding collateral attacks on EPA cleanup decisions by placing EPA in the role of gatekeeper for state lawsuits seeking restoration damages. In the present case, EPA stated that the landowners' restoration plan, if implemented, would interfere with EPA's approved cleanup by, for example, digging up soil that has been deliberately capped in place. The court's decision in Atlantic Richfield may also have the effect of avoiding the award of windfall profits in cases where plaintiffs seek huge "restoration damages" that go well beyond actual compensatory damages they have suffered.
For many years EPA worked with Atlantic Richfield, the current owner of a former smelter, to implement a cleanup plan expected to continue through 2025 for remediation of contaminated soil. A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages.原告请求损害赔偿的依据是拟议恢复计划,超出EPA认为保护人类健康和环境适当的措施范围The trial court granted summary judgment to the landowners on the issue of whether CERCLA precluded their restoration damages claim, and the Montana Supreme Court affirmed. The US Supreme Court reversed and remanded.
The Supreme Court first needed to decide whether CERCLA deprived the Montana courts of jurisdiction. The landowner's claims for trespass and nuisance arise under Montana law not CERCLA, the Court held, and thus are not barred by Section 113(b) of the Act, which provides that federal District Courts have exclusive original jurisdiction "over all controversies arising under this chapter." Similarly, the Court held that a suit in Montana state court is not precluded by CERCLA §113(h), which states that "[n]o Federal court shall have jurisdiction under Federal law ...to review any challenges to removal or remedial action" selected under CERCLA. In short, §113(b) deprives state courts of jurisdiction over cases arising under CERCLA, while §113(h) deprives federal courts of jurisdiction over certain challenges to Superfund remedial actions.
The parties conceded that under §122(e)(6) of CERCLA, when EPA or a responsible party has initiated a remedial investigation and feasibility study for a particular facility, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by EPA. The court in Atlantic Richfield held that because arsenic and lead are hazardous substances that have "come to be located" on the plaintiffs' properties, the plaintiffs are potentially responsible parties under §107(a) of CERCLA. Therefore, under the statute, the plaintiffs claim for restoration damages may proceed only if the landowners first obtain EPA approval for the restoration work they seek to implement.
What are the implications of the Court's ruling? Justice Gorsuch, joined by Justice Thomas dissented, stating that the Court's reading of the Act endorses "paternalistic central planning" and turns a cold shoulder to "state law efforts to restore state lands." This argument was not compelling to the majority because, as the Court's opinion notes, cleanup plans generally must comply with applicable or relevant and appropriate state environmental standards and, moreover, states have opportunities for involvement in developing and selecting cleanup plans. The court's ruling in Atlantic Richfield may also head off what are, in effect, collateral attacks on EPA's remedial decisions and the confusion and delay threatened by such lawsuits.
The Atlantic Richfield decision may serve to avoid unjust awards of windfall profits to plaintiffs who seek so-called restoration damages that go beyond any actual damages. Indeed, litigation in Montana illustrates the basis for such concern.sunburst学校二区vTexaco, 165 P.3d 1079 (2007), the Montana Supreme Court approved an award of damages that Texaco claimed would exceed the value of the property allegedly damaged and thus would result in a windfall. The Court recognized the problem identified by Texaco, citing Montana law that an injured party should be made whole but not profit. However, the court in Sunburst found that the general rule in favor of diminution in value as the appropriate measure of damages can be overcome where the record shows that an award of restoration damages will actually be used to repair the damaged property rather than simply paid to plaintiffs.
The Supreme Court's decision in Atlantic Richfield may avoid the need for a trial court to deal with "windfall profit" issues in cases where plaintiffs are responsible parties, EPA has selected a CERCLA remedy, and EPA has not authorized the restoration plan. In Atlantic Richfield, EPA represented that the landowners' restoration plan would dig up soil that has been deliberately capped in place under the EPA approved remedy found to be protective.遇此案例,人们可以理解为什么EPA不授权修复计划 。
法院裁决Otlantic Richfield 不处理原告非潜在责任方的恢复损害索赔,例如拥有非受污染财产的当事人可提出普通法索赔,如价值缩水等。虽然恢复损耗诉讼过去不常见,但ActicanRichfield 裁决可促使根据州法增加此类索赔。邻接地主可起诉“净化非净化恢复损失 ”, 即 i.提供比国家环境需求更多(和更多更多费用)修复方法;这类案例的初审法院大概会注意原告根据州法拥有其他补偿性减值补偿法的事实。 此外,被告意识到潜在的“负利”问题,可请求初审法院要求被告定期补偿实际恢复费用-而不是整笔支付-处理原告可能决定扣下损害裁定额而不是执行提交法院的全部或大部分恢复计划的问题。
EPA on May 19 released a proposed rule that would put in place a set of regulations governing EPA's issuance, modification, and withdrawal of guidance documents. This proposal implements portions of Executive Order 13891, and builds on EPA's previous efforts to create a comprehensive portal of guidance documents earlier this year. Generally speaking, the stated purpose of the rule is to allow for increased transparency and public involvement in EPA's guidance-formulation process, but the proposal also contains several key limitations.
Six specific aspects of EPA's proposed rule, which illustrate its possibilities as well as its limits, are particularly noteworthy:
- Public Comment on Proposed Guidance Would Be Limited to "Significant" Guidance Documents. EPA's rule would only require notice and comment with respect to "significant" guidance documents, principally those with more than a $100 million effect on the economy and those raising "novel legal or policy issues arising out of legal mandates." Other proposed guidance documents would not be subject to notice and comment, but would be required to be posted on EPA's Guidance Portal when finalized.
- Creation of a Petition Process for Withdrawing or Modifying Guidance. EPA proposes to create a process whereby members of the public may petition the agency to withdraw or modify guidance. The proposal would allow EPA up to 180 days to respond to such petitions!万博体育app手机登录请求获批后,EPA没有设定时间推向撤销或修改指南。建议表示EPA的请愿判定不受《行政程序法》司法审查,因为拟议规则“仅供EPA人员使用,目的不在于或不会产生任何权利或利益、实体或程序、法律上或公平执行美国。”万博体育app手机登录EPA has requested comment on whether it should create a similar petition process for regulations, beyond the basic statutory petition process established by section 553(e) of the Administrative Procedure Act.
- Many Documents that Provide Guidance Are Not Subject to the Rule. The rule excludes a variety of documents from its scope, including the requirement that they be posted online. Excluded categories of documents include:
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- "Internal" guidance not intended to have "substantial" future effect on regulated parties
- Advisory or legal opinions addressing circumstance-specific questions
- Internal legal opinions
- Legal briefs and other court filings
- EPA adjudications
- EPA May Vary from This Rule at Will.万博体育app手机登录/强/强/强/强/强/强/主执行令13891第3(b)节规定EPA不得发布指导文件而不贴入网站万博体育app手机登录Before a guidance document could be posted, EPA's proposed rule would require that the guidance be approved by "[t]he EPA Administrator or other Presidentially-appointed EPA official, or an official who is serving in the acting capacity of either of the foregoing."
Continued publication of guidance in an accessible, transparent fashion will undoubtedly help regulated parties and members of the public better understand EPA's guidance on important issues. However, it is far from clear whether the other aspects of the rule will result in any significant change. For example, it is unclear whether the public comment and petition processes will have a significant impact on EPA guidance documents, particularly given that the guidance itself, and petition determinations, would likely not be subject to judicial review.
Separately, as this blog previously discussed, increased transparency and public participation surrounding EPA guidance documents will make them more likely to receive judicial deference, in light of last year's Supreme Court decision in Kisor v.Wilkie .
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