We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
EPA Temporarily Amends Process for Active Ingredient Approval to Boost Supply of Disinfectants During COVID-19 Pandemic
By: Kimberly DalSanto and Chase Dressman

To help ensure the availability of disinfectants during the COVID-19 pandemic, the U.S. Environmental Protection Agency (EPA) announced it was temporarily amending PRN 98-10 to allow manufacturers of certain registered EPA disinfectants to obtain certain “commodity” active ingredients from any source of suppliers without checking with the agency first. EPA also announced a similar action on certain inert ingredients. 

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EPA Administrator Andrew Wheeler Talks Disinfectant Products and False Claims of Effectiveness Against COVID-19
By: Kimberly DalSanto, Frank Deveau, Chase Dressman and Will Gardner

On April 3, 2020, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler hosted a call with retailers and third-party marketplace platforms to discuss EPA’s handling of products falsely claiming to be effective against COVID-19.

Through consumer tips and complaints, and by its own research, EPA has identified numerous unregistered products in the marketplace that are being advertised for use against SARS-CoV-2 (the virus that causes COVID-19). EPA has a strict registration process for all pesticides (including disinfectants) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which ensures that pesticide products work as claimed and users are provided appropriate directions for effective use. Only when a product has been properly tested and registered with EPA can public health claims be made about the product’s effectiveness against certain diseases and viruses. The rapid onset of the COVID-19 pandemic has resulted in scores of unregistered products being advertised and sold (frequently online) with dubious and unapproved efficacy claims regarding COVID-19. EPA and retailers are taking an aggressive approach to identifying these unregistered products and preventing their sale or distribution in the U.S.

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District Court Holds CERCLA Preempts ELA’s Statute of Limitations
By: Kristine Gordon

On March 25, 2020, in Refined Metals Corp. v. NL Indus., Inc., No. 1:19-CV-4578-JMS-DLP, 2020 WL 1448880 (S.D. Ind. Mar. 25, 2020), the Southern District of Indiana (Southern District) held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)'s three-year statute of limitations for contribution actions can preempt the ten-year limitations period under Indiana’s Environmental Legal Action statute (ELA). Id. at *8. The court’s holding was limited but warns owners of contaminated property that they cannot avail themselves on state law to avoid CERCLA’s statute of limitations. Id.

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EPA Announces Temporary Enforcement Policy Given COVID-19 Pandemic
By: Kimberly DalSanto 

The U.S. Environmental Protection Agency (EPA) acknowledges that the travel and social distancing restrictions imposed by governments, along with guidance from other agencies, may affect facility operations and the availability of key staff and contractors, or the abilities of a facility or lab to analyze and report on samples; which, in turn, could affect a facility’s ability to comply with certain reporting obligations and milestones, or meet enforceable limitations.

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Navigating IDEM’s Revised Requirements During the COVID-19 Pandemic
By: John Huldin 

The Indiana Department of Environmental Management (IDEM) has taken a number of actions that have limited travel, broadened enforcement discretion and created solutions for required paper submissions and wet signatures. Below is a summary of those developments.

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Requesting Regulatory Flexibility From Ohio EPA in Response to COVID-19
By: Erica Spitzig

In light of the state of emergency declared in Ohio by Governor Mike DeWine on March 10, 2020, Ohio EPA closed its central and district offices and most staff are working remotely as of March 23, 2020. The agency has also established a website with more information for regulated entities, and a procedure for regulated entities that experience an “unavoidable noncompliance situation, directly due to impact from the coronavirus” to immediately get in touch with agency staff and request regulatory flexibility.

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