Industrials Regulatory News and Trends - November 3, 2023

Welcome to Industrials Regulatory News and Trends. In this regular bulletin, DLA Piper lawyers provide concise updates on key developments in the industrials sector to help you navigate the ever-changing business, legal and regulatory landscape.

• EPA proposes ban on trichloroethylene. On October 23, the EPA announced it would propose a ban on trichloroethylene (TCE), a chemical used in manufacturing refrigerants and automobile automobile brake cleaners and in dry cleaning. TCE has been said by many to be linked to liver cancer, kidney cancer, and lymphoma, as well as other diseases affecting the liver, kidneys, and immune and reproductive systems. It is one of several chemicals that have been found in contaminated drinking water at Camp Lejeune Marine Corps Base in North Carolina. The EPA’s action would be the latest step in a regulatory battle over TCE that has lasted nearly four decades. “For far too long, TCE has left a toxic legacy in communities across America,” said Michal Freedhoff, the EPA’s assistant administrator for the Office of Chemical Safety and Pollution Prevention. “Today, EPA is taking a major step to protect people from exposure to this cancer-causing chemical.”
  
  
• California approves right-to-repair legislation. On October 10, California Governor Gavin Newsom signed the Right to Repair Act into law. California thus became the fourth state, after New York, Colorado, and Minnesota, to enact this type of legislation. The law, which goes into effect on July 1, 2024, requires manufacturers of electronic or appliance products with a wholesale price to the retailer of not less than $50 nor more than $99.99 to make available sufficient service literature and functional parts to affect the repair of a product for at least three years after the date when a product model or type was manufactured. For products with a wholesale price of $100 or more, manufacturers must make service literature and functional parts available for at least seven years after the date a product model or type was manufactured, whether or not the warranty period has been exceeded. The new law effectively extends the existing right to repair protections under California’s Song Beverly Consumer Warranty act to covered products even if they are sold without a written warranty. Also see our handbook, The right to repair – what’s at stake, and what’s happening.
  
  
• Leaded airplane fuel. On October 18, the Environmental Protection Agency, following years of study, issued a final determination that emissions from aircraft that use leaded fuel pose a danger to public health. Commercial aircraft use jet fuel, which does not contain lead. Aircraft that do use leaded fuel are typically small piston-engine planes that carry two to 10 passengers and are around 45 years old. “The science is clear: exposure to lead can cause irreversible and lifelong health effects in children,” EPA Administrator Michael Regan said in a statement announcing that the agency was finalizing a decision proposed in October 2022. The EPA’s action came in the form of an “endangerment finding” under the Clean Air Act. According to US government estimates, emissions from the 190,000 privately owned airplanes in the US operating on leaded fuel account for about 70 percent of the lead entering the atmosphere.
  
  
• New York launches effort to address recycling claims. New York’s Returnable Container Act, popularly called the Bottle Bill, is regarded as one of the state’s most successful recycling efforts, capturing about 5 billion beverage containers a year and recycling 250,000 tons of plastic, glass and aluminum while reducing litter and providing relief to overburdened municipal recycling systems. But Bottle Bill fraud at redemption centers is a growing problem. Recognizing this, on October 24, the New York State Department of Environmental Conservation launched a new statewide multi-agency effort to help prevent illegal returnable container schemes related to the state’s Returnable Container Act. The department says this effort will help uncover practices that prevent bottles and cans without deposits from being redeemed for cash, thus reducing funds that support the state’s environmental initiatives. “This newly launched effort will help foster coordination among state and local partners across the many jurisdictions included in Bottle Bill enforcement to help recoup lost revenue, hold violators accountable and eliminate the competitive disadvantage experienced by companies that play by the rules,” said the department’s commissioner, Basil Seggos.
  
  
• Southwest wants to grow by buying more Boeing planes – with FAA approval. On October 26, Robert Jordan, the CEO of Southwest Airlines, said the company is poised for growth in the next several years, depending in part on regulatory approval. Southwest, one of the biggest customers of Boeing’s MAX planes, said it will buy an additional 108 MAX 7 planes through 2031. The plane’s delivery schedule, however, is dependent on its certification by the Federal Aviation Administration, Jordan said. Delays in certification have already forced the company to convert dozens of MAX 7 orders to MAX 8s. Jordan said that a tight new aircraft market prompted the company to lock in its order. “We want to ensure that we have access to aircraft into the future,” he said.
  
  
• Bill to curb uses of plastics. On October 25, US Senator Jeff Merkley (D-OR) and US Representative Jared Huffman (D-CA) reintroduced the Break Free from Plastic Pollution Act which aims to reduce the production and use of single-use plastics in the United States. The bill's proponents say it is aiming to promote reuse and refill systems, limit the amount of plastic waste that could be exported abroad, require plastic manufacturers to manage plastic waste; and support cities and states in their efforts to mitigate single-use plastic pollution. In response, Ross Eisenberg, president of America’s Plastic Makers, stated, “Congress, America’s plastic makers, and the public agree that plastic waste should never be in our environment. Unfortunately, the legislation introduced today would do little to eliminate plastic pollution while doing a lot to damage the U.S. economy.”