Biden’s Latest Regulatory Agenda: What it Means for ILMA Members
Biden Administration Publishes Spring Regulatory Agenda
The Biden administration has issued its spring Unified Agenda, which provides information on the federal government’s
rulemaking actions in development or recently completed. With a total of 3,666 agency actions, it is comparable to
previous Biden administration Unified Agendas. Among the 2,617 active actions—those on which agency action is
expected within 12 months— 343 are being published for the first time in this Unified Agenda, and 243 are expected to
have an annual economic effect of more than $100 million.
“The latest Unified Agenda reflects President Biden’s efforts to accomplish goals through agency regulations rather than
through a divided Congress,” said ILMA CEO Holly Alfano. “The Biden administration is setting new regulatory records,
and we expect even more before the 2024 elections.”
ILMA has analyzed the spring Unified Agenda and has identified a number of issues affecting members, and included
direct links to the relevant sections in the spring Unified Agenda. Members with questions or concerns may contact
ILMA’s regulatory counsel, Benjamin Idzik, at bidzik@bmalaw.net.
EPA
TSCA Fee Updates
In November 2022, the EPA released a supplemental notice of proposed rulemaking (SNPRM) that would increase user fees that private parties must pay for their chemistries to receive the review and approval required by the Toxic Substances Control Act (TSCA). The agency claims that the increases are needed to ensure that the fees charged accurately reflect the level of effort and resources needed to implement TSCA. ILMA submitted comments on the SNRPM, detailing the Association’s concerns with the proposed fee increases. The final rule is expected in November.
Direct Link:
PFAS
In March last year, the EPA proposed a rule that would establish federal drinking water standards for perfluorooctanoic
acid (PFOA) and perfluorooctanesulfonic acid (PFOS) under the Safe Drinking Water Act. While the agency is under a
September 2024 deadline to issue the final rule, it says in the spring Unified Agenda that it plans to move up its target
release to January 2024.
The EPA also has proposed to list PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA or Superfund). This would subject companies to strict retroactive
liability for the remediation of PFOA and PFOS discharges at Superfund sites. In the last Unified Agenda, the EPA anticipated to finalize the rule by August 2023; however, the agency now expects to take final action in February 2024.
An advance notice of proposed rulemaking (ANPRM) was published in April requesting input on whether to list additional
PFAS substances as CERCLA hazardous substances, and the public comment period for the ANPRM ended in June. However, the spring Unified Agenda does not provide an update on when the agency intends to move forward. Separately, the agenda lists a forthcoming NPRM in which the EPA says it will propose to designate PFOA, PFOS, perfluorobutane sulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (HFPO-DA or GenX) as “listed hazardous wastes” under Resource Conservation and Recovery Act (RCRA). The NPRM is scheduled to be released in August.
Direct Links:
Used Drums
The EPA is also planning to release an ANPRM as early as September that will affect the recycling and reconditioning of used steel drums. The ANPRM will solicit information and request comments on the potential development of both regulatory and non-regulatory options to address the management and reconditioning of used drums that store hazardous chemicals and wastes. Used drums have been on the EPA’s radar since at least 2022, when the agency published its “Drum Reconditioner Damage Case Report.” In the report, the agency identified concerns with how used drums are reconditioned, specifically with the amount of residue present in used drums sent to reconditioning facilities.
Direct Links:
Oily Wastewater
Buried in a new spring Unified Agenda entry on RCRA permitting is a possible initiative by the EPA to revisit the regulatory treatment of oily wastewater under the agency’s used oil management standards. The agency is looking at whether wastewater with less than 50% oil content should be regulated as a “characteristic” RCRA hazardous waste, rather than managed as non-hazardous under the used oil management standards.
Direct Link:
OHSA
Update to the Hazard Communication Standard
OSHA has been working on an update to its Hazard Communication Standard (HCS) since 2020. The current HCS (2012) is based on the third edition of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). OSHA released an NPRM in February 2021 proposing, among other things, to adopt the seventh edition of the GHS. The broad aim is to harmonize the HCS with Canada and other countries’ hazard communication programs.
The spring Unified Agenda states that the final HCS amendments should be published this month. However, OSHA has yet to send the final rule to the White House’s Office of Management and Budget for interagency review.
Direct Link:
Heat Stress
In October 2021, OSHA released an ANPRM on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings to begin a dialogue with stakeholders in preparation for potential rulemaking. The ANPRM provides an overview of the problem of heat stress in the workplace and measures that have been taken to prevent it. The comment period closed early in 2022. The spring Unified Agenda indicates that OSHA will convene a Small Business Regulatory Enforcement Fairness Act panel, beginning this August, as the next step in developing a proposed rule.
Direct Link:
Improve Tracking of Workplace Injuries and Illnesses
Also slated for release this month is OSHA’s final rule on the electronic reporting of workplace injuries and illness. The NRPM, published in March 2022, proposes to eliminate the current Form 300A electronic reporting requirement for most employers in non-high hazard industries with more than 250 employees. However, it would mandate establishments with 100 or more employees in designated high-hazard industries to electronically submit OSHA Forms 300 and 301, along with Form 300A, once per year. Most ILMA members fall into the category of high-hazard industries based on their NAICS designation.
Direct Link:
Other
Other notable regulatory actions in the spring Unified Agenda include the Department of Labor’s plan to finalize its 2022 proposal on the classification of a worker’s status as an employee or independent contractor, which would rescind DOL’s 2021 Independent Contractor rule.
The Federal Trade Commission does not indicate when it plans to finalize its prohibition on non-compete clauses, which it proposed in January of this year. ILMA submitted extensive comments on the FTC’s proposal.
Direct Links: