Cal/OSHA Provides Guidance for Managing Post-Fire Cleanup Efforts
In light of the ongoing and devastating fires in Los Angeles County, Cal/OSHA released new guidance to ensure the safety and health of workers involved in fire damage cleanup.
Of note, Cal/OSHA’s standards may apply to some household domestic service workers. Historically, domestic service workers have not been subject to Cal/OSHA’s standards while cooking, cleaning, and providing childcare for a family. Cal/OSHA reminded employers that household domestic service workers are governed by Cal/OSHA’s standard if the workers are engaged in fire cleanup work, such as removing ash and debris and cleaning fire-damaged structures. As such, it is important for those employers who have employees performing post-fire cleaning to take note of the Cal/OSHA guidance.
As a reminder and unrelated to this recent guidance, effective July 1, 2025, Cal/OSHA will gain control over workplace safety for some household domestic services.
Key Points to Note:
Employers are required to identify and evaluate potential hazards in fire-damaged areas. This includes assessing risks such as unstable structures, hazardous materials, and environmental dangers like ash and soot.
Proper training and instruction must be provided to employees before they begin cleanup work. This training should cover the specific hazards they may encounter and the safety measures they need to take.
Employers must ensure that workers have access to and use appropriate PPE. This includes NIOSH-certified respirators, gloves, eye protection, and other necessary gear to protect against inhalation of harmful substances and physical injuries.
Cal/OSHA emphasizes the importance of adhering to existing health and safety standards. This includes regulations on heat illness prevention, confined space entry, and handling of hazardous materials.
Employers must establish and communicate clear emergency procedures. This includes protocols for evacuations, first aid, and reporting unsafe conditions.
What You Need to Know about the California Fair Access to Insurance Requirements Plan (FAIR Plan)
This alert begins our series discussing legal issues related to the Southern California wildfires. We invite you to contact us if you would like a free consultation related to this topic. We will continue to provide updates as more information becomes available.
Due to the high risk of wildfires in California, many private homeowner insurers have made a business decision to leave the state. These decisions have left thousands of homeowners seeking insurance from an ever-dwindling pool of providers. Those who are unable to obtain insurance have instead turned to the “insurer of last resort,” better known as the California Fair Access to Insurance Requirements Plan (FAIR Plan).
What is the FAIR Plan?
The FAIR Plan is an insurance “pool” comprised of all California-licensed insurers that allows high-risk California homeowners to have access to basic fire insurance protection while limiting any one insurer’s liability. The plan is run by the California FAIR Plan Association, which, notably, is not a state or public agency. This means it is not taxpayer-funded, and profits from participating insurers come primarily from the sales of policies. However, though the FAIR Plan reported that the number of FAIR Plan dwelling and commercial policyholders grew by a reported 225% over the past two fiscal years, FAIR Plan’s exposure has also significantly increased.
If you were affected by the recent Eaton and Palisades fires in Southern California, there is a relatively good chance you are preparing to, or are in the process of, submitting an insurance claim through your FAIR Plan. You are not alone. Recent reports suggest more than 3,600 policyholders in Altadena, Pacific Palisades, and other parts of greater Los Angeles have already submitted claims to the FAIR Plan. Unfortunately, the claims submission and adjudication process for these policyholders is unlikely to be smooth due to the sheer number of claims and the FAIR Plan’s high exposure in the Southern California area. As such, there are a few points to remember when submitting a claim and communicating with FAIR Plan representatives.
How to Submit a Claim
Policyholders should understand the process for submitting claims. The FAIR Plan website provides a claims submission link. This link can be found here, along with a brief “FAQ” page here. We encourage all policyholders to submit their claims as soon as possible due to the expected delays in the claims adjudication process. Moreover, policyholders should take special care to document all communications with the FAIR Plan in case disputes arise later in the process. All emails with FAIR Plan representatives should be preserved, and, if possible, all phone conversations with representatives should be confirmed in writing through email. In addition, all documentation relevant to a policyholder’s claim, including pictures of the premises and receipts for lost or affected property, should be kept in a secure location. We also encourage policyholders to document the condition of their homes to the extent possible. Pictures should be taken of every room and all surrounding property prior to any remediation work.
We encourage policyholders to review the language of their FAIR Plan carefully and to submit all possible claims. When in doubt, make the claim. This applies even if your home is not destroyed, as the FAIR Plan should cover fire damage even if the home is left standing.
Understanding Smoke Damage Coverage
Policyholders should be aware of FAIR Plan administrators’ views on coverage for smoke damage. Properties of many policyholders have experienced profound smoke damage that prevents them from returning to their homes. While FAIR Plan policies are required to cover smoke damage, the FAIR Plan has recently narrowed its policies so that smoke damage may only be covered if there are clearly visible signs of damage or if smoke is detectable through smell. Class-action lawsuits have been filed in Alameda and Los Angeles Counties addressing the FAIR Plan’s narrowing of their policies. A primary argument by the plaintiffs in those cases is that the FAIR Plan is required to provide coverage for all smoke damage in accordance with California Insurance Code Section 2071. This would expand policies issued by the FAIR Plan to cover damages beyond permanent physical damage or damage detectable through smell. However, litigation on these issues is ongoing and may drag on for several years. In the meantime, policyholders should assume that all fire damage to their homes, including all smoke damage, will be covered by the FAIR Plan and submit claims accordingly. This should ensure that your claims are included in the class of claims covered by these class-action lawsuits, and that you benefit from any favorable rulings.
How Risky Are DEI Programs Under Trump 2.0?
President Trump’s January 21, 2025, executive order titled “Ending Discrimination and Restoring Merit-Based Opportunity” (“Executive Order”) directs the termination of federal government practices and policies that protect and promote diversity and inclusion; the Executive Order also addresses diversity and inclusion initiatives in the private sector. Less than a week later, an internal memo from the White House budget office “temporarily paused” grants and loans by the federal government while the government assesses whether the distributions are consistent with certain executive orders and other Trump administration objectives.
The Executive Order specifically targets diversity, equity, and inclusion (DEI) and diversity, equity, inclusion, and accessibility (DEIA) programs, describing them as “dangerous, demeaning, and immoral,” which “violate the text and spirit of our longstanding Federal civil-rights laws” and “undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system.” The Executive Order uses broad, sweeping language and does not describe the types of DEI or DEIA initiatives that violate existing federal civil rights laws, leaving uncertainty as to which programs the administration will target but leaving no uncertainty about the chilling effect the Executive Order will have.
The Executive Order Targets Large Companies
The Executive Order requires the attorney general to submit a report within 120 days (May 21, 2025) that includes a proposed strategic enforcement plan identifying, among other things, (i) key sectors of concern within each agency’s jurisdiction, (ii) the most egregious and discriminatory DEI practitioners in each sector of concern, and (iii) a plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. Moreover, the Executive Order directs, “As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.” As such, large or otherwise prominent organizations should be particularly on guard.
The Executive Order has immediately impacted the broader enforcement context. For example, on January 23, 2025, Texas Attorney General Ken Paxton and nine other state attorneys general warned several major financial institutions that DEI and environmental, social, and governance (ESG) commitments could lead to enforcement actions if they are found to violate state or federal laws. Following the release of the attorney general report described above, we may see an uptick in warnings made by other state attorneys general and/or similar warnings issued to organizations in sectors of concern identified in the forthcoming attorney general’s report.
To be sure, existing federal antidiscrimination law controls. That means while the Trump administration may view certain DEI programs as unlawful, it does not mean judges will. Read on for specific takeaways for entities with DEI programs.
The Executive Order Targets Recipients of Government Funding
Recipients of federal government funding already should be familiar with the False Claims Act (FCA), 31 U.S.C. §§ 3729 – 3733, which provides that any person who knowingly submits, or causes to submit, false claims to the federal government is liable for three times the government’s damages, plus penalties.
The Executive Order uses the FCA to target DEI initiatives of government funding recipients. First, federal contractors and subcontractors are prohibited from considering race, color, sex, sexual orientation, religion, or national origin in their employment, procurement, and contracting practices. Second, every contract or grant award issued by a federal agency — which will include government contractors as well as health care entities that participate in federal health care programs, and research institutions that receive federal grant money — must include the following provisions:
“A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of [the FCA];” and
“A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
With these provisions, the Department of Justice or private qui tam relators could pursue an FCA case utilizing a false certification theory, meaning a party could be held liable under the FCA for submitting false or fraudulent claims to the government if the party falsely certifies that it has complied with federal requirements when, in fact, they have not. For a claim to be fraudulent under this theory, the false certification must be material to the government’s decision to pay the claim.
The Executive Order essentially requires parties who wish to do business with the government to agree that a violation of a federal antidiscrimination law — e.g., maintaining a DEI program that violates federal antidiscrimination laws — is material to the government’s decision to pay under the FCA. However, it is unclear that “agreeing” a requirement is material makes it so. For “materiality,” compliance with the provision actually must be material to the government’s decision to pay the claim or its decision to award the contract. In 2016, the Supreme Court held that “designating” a “legal requirement an express condition of payment” is not sufficient to establish materiality under the FCA. Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. 176, 192 (2016). However, the Trump administration will likely argue that its recent halting of federal funding, as the government takes stock of whether the spending complies with its executive orders and policies, is evidence that the antidiscrimination requirement is material to the government’s decision to pay. Crucially, however, the halt of federal funding does not apply to Medicare, nor does it direct that payment be terminated to a contractor for the reason of their DEI program. It does direct the termination of payment as related to DEI actions, initiatives, or programs.
As so often occurs in the FCA arena and elsewhere, many practices targeted by the Department of Justice or relators ultimately will be defensible. In the DEI context, absent a settlement, a court would have to determine the DEI program in question violates current federal antidiscrimination law, and the Department of Justice or relator would have to prove each element of an FCA violation, including materiality and scienter (that the defendant knew or recklessly disregarded or deliberately ignored in its certification that its representation of compliance with federal antidiscrimination laws was false).
As such, it is yet to be seen what kind of teeth the Executive Order will ultimately have. The administration could be counting on a chilling effect, with the potential costs of investigations, enforcement action, and litigation outweighing companies’ willingness to go to battle for their DEI programs in court.
Takeaways for Companies with DEI Programs
We expect more details from the administration, such as regulatory and sub-regulatory actions, in the days and months to come. In the meantime, we recommend companies take action now to mitigate potential risk, even if their programs are ultimately defensible. For example, we recommend the following immediately:
Companies — federal contractors and private sector alike — should consult DEI and labor and employment experts to assess whether their DEI policies and practices may be construed to be out of compliance with existingfederal antidiscrimination laws under a Trump-era lens and what changes (if any) in their policies and practices are necessary to ensure compliance or mitigate risk.
Companies should be cognizant of new developments as they arise under the Trump administration. To assist in this endeavor,
Companies should reach out to legal counsel to discuss how the Executive Order, and likely future orders, may impact their businesses and what specific steps should be taken now to best protect them from any future liability and enforcement actions.
EPA Releases Draft Scope Document for Vinyl Chloride TSCA Risk Evaluation
On January 16, 2025, the U.S. Environmental Protection Agency (EPA) announced the availability of and requested public comment on the draft scope of the risk evaluation to be conducted under the Toxic Substances Control Act (TSCA) for vinyl chloride. 90 Fed. Reg. 4738. EPA notes that under TSCA, the scope documents must include the conditions of use (COU), hazards, exposures, and the potentially exposed or susceptible subpopulations (PESS) that EPA expects to consider in conducting its risk evaluation. EPA states that the purpose of risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the COUs, including unreasonable risk to PESS identified as relevant to the risk evaluation by EPA, and without consideration of costs or non-risk factors. Comments are due March 3, 2025.
Reasonably Available Information
According to the draft scope document, EPA leveraged the data and information sources described in the Proposed Designation of Vinyl Chloride as a High-Priority Substance for Risk Evaluation to inform the development of the draft scope document. EPA applied systematic review methods to identify and screen reasonably available information across multiple evidence streams (i.e., chemistry, fate, release and engineering, exposure, and hazard) for consideration in the risk evaluation. This information includes the hazards, exposures, PESS, and TSCA COUs that may help inform the risk evaluation for vinyl chloride. EPA focused on the data collection phase during prioritization and preparation of the draft scope document; in contrast, according to EPA, the data extraction, evaluation, and integration stages will occur during the development of the draft risk evaluation and thus are not part of the scoping activities. EPA plans to consider additional information identified following release of the draft and final scope, as appropriate, in developing the draft risk evaluation — including Chemical Data Reporting (CDR) information received in November 2024.
COUs
EPA states that it plans to evaluate manufacturing (including importing); processing; distribution in commerce; industrial, commercial, and consumer uses; and disposal of vinyl chloride in the risk evaluation. According to EPA, vinyl chloride is manufactured domestically and imported into the United States. Vinyl chloride is processed as a reactant; incorporated into a formulation, mixture, or reaction product; incorporated into articles; and used in other industrial and commercial processes. The processing activities identified in the draft scope document also include the repackaging and recycling of vinyl chloride. EPA notes that all of the identified industrial, commercial, and consumer uses are related to vinyl chloride serving as a monomer in plastics — primarily polyvinyl chloride (PVC) — and other polymers. EPA identified these COUs from information reported through CDR, public comments, and other publicly available data sources, including emissions databases, safety data sheets (SDS), published literature, and company websites.
Conceptual Model
The conceptual models are graphical depictions of the actual or predicted relationships of COUs, exposure pathways, exposure routes, hazards, and populations throughout the lifecycle of vinyl chloride. EPA states that it considered reasonably available information, including public comments, in considering the exposure pathways, exposure routes, and hazards it expects to evaluate in the risk evaluation. Furthermore, EPA’s plan for evaluating exposure in the scope of the risk evaluation considers major or minor exposure pathways and routes based on physical and chemical information, release information, fate and transport properties, and other information such as industry standards in PVC production.
Analysis Plan
The analysis plan for vinyl chloride outlines the general science approaches that EPA plans to use for the various evidence streams (i.e., releases, fate, engineering, exposure, and hazard) supporting the risk evaluation. EPA states that the analysis plan is based on its knowledge of vinyl chloride to date that includes a review of identified information. EPA notes that should additional data or approaches become reasonably available, it plans to consider them for the draft risk evaluation.
Peer Review
EPA states that the draft risk evaluation for vinyl chloride will be peer reviewed as required by the TSCA Risk Evaluation Rule (89 Fed. Reg. 37028). Peer review will be conducted in accordance with relevant and applicable methods for chemical risk evaluations, including using EPA’s Peer Review Handbook and other methods consistent with TSCA Section 26.
Commentary
Vinyl chloride is no stranger to the regulatory spotlight and stakeholders can be expected to gather and share robust, pertinent, and accurate data with EPA to assist the Agency in this important initiative. Given the size of the vinyl industry and its contributions to the economy, stakeholders are urged to collaborate with EPA to ensure the scope of the risk evaluation is properly calibrated and supported by the best available information.
New President Offers Opportunities for Local and Foreign Investors
On January 13th, 2025, President Sheinbaum presented the Mexico Plan (MP), which details tax incentives, provides for greater efficiency in administrative processes, and outlines investment goals for infrastructure related to energy, urban mobility, and housing, among others.
Nearshoring
Under the MP, the Mexican government intends to incentivize new investments that promote organizational training as well as innovation by encouraging relocation of companies and restructuring of supply chains related to manufacturing.
The MP enables accelerated depreciation of new investments in fixed assets (41% – 91%) as well as additional deductibility of expenses related to training and innovation (25% of the increase in expenses over the average of the last three fiscal years).
These new tax incentives will be subject to assessment by an Evaluation Committee that will certify compliance of investment milestones. The referred Committee will annually set the cap of incentives that compliant taxpayers may benefit from. The referred benefits will be available beginning January 22, 2025, and will apply to fixed assets acquired up to September 30, 2030, and to training and innovation expenses incurred up to and including tax year 2030.
Investment Zones
The MP promotes 12 new geographical investment areas (Tamaulipas, Puebla, AIFA-Tula, Bajío, Piedras Negras, Nuevo Laredo, Hermosillo, Puerto Lázaro Cárdenas, among others), in addition to those implemented by former President Lopez Obrador, by providing tax incentives to investors operating in Strategic Sectors (semiconductors, electronics, energy, logistics, tourism, agroindustry, infrastructure, IT, electromobility and automotive, medical devices, and pharmaceuticals), who relocate or open operations in these areas. Tax incentives available to qualifying companies include:
100% tax credit on income tax generated during the first three years.
A tax credit of 50% to 90% of the income tax generated during the following three fiscal years, which will be granted if the employment levels, to be determined in accordance with guidelines to be issued by the Ministry of Finance, are met.
Immediate 100% deduction of investments made during the first six years in new fixed assets used for production, excluding furniture, office equipment, automobiles, armored vehicles, and unidentifiable fixed assets.
100% tax credit of the VAT resulting from the sale of assets, rendering of services, or lease of assets between companies located within the investment areas.
These tax incentives are not applicable to taxpayers under the maquila regime; the optional regime for controlled groups; Real Estate Investment Trusts; or companies participating in cinematographic or theater production or distribution, music, dance, visual arts, or research and development of technology related to high performance sports.
Government Banks
To further incentivize companies operating in the outlined Strategic Sectors, the MP provides for Government banks to provide: (A) preferential loans (with competitive interest rates) to companies within the Strategic Sectors. The specific fund for these loans will be announced on February 7, 2025; (B) preferential long-term loan rates for small- and medium-sized companies to increase their working capital, technology, and exportation capabilities, enabling reverse factoring (supply chain finance) at an annual rate of 3.5%; (C) dedicated loans to incentivize acquisition of new technologies and machinery; (D) subsidies and loans to include Mexican incorporated companies (no limit on whether they are foreign owned) into international supply chains (e.g., automobile, aerospace, and electronics); and (E) preferential loan rates for long-term infrastructure projects (e.g., highways, airports, and telecommunications networks) in underserved areas.
IMMEX 4.0
The MP provides for the implementation of the IMMEX 4.0 Program to consolidate, within the Ministry of Economy, application processes to obtain authorization to operate under an IMMEX program (deferral of import duties on temporary imports) and VAT Certificate (100% credit of VAT on temporary imports). The referred consolidation is intended to significantly reduce application times (currently fluctuating for up to two years) and ease compliance with requirements.
Public Investment
Additionally, the MP creates a public investment project that prioritizes five specific sectors: Energy, PEMEX (State-Owned Petroleum Company), Water, Transportation and Mobility, and Public Housing.
Energy: US$23.4 billion will be allocated for electricity generation, transmission, and distribution; US$12.3 billion for new power plants; US$7.5 billion to strengthen the transmission network; and US$3.6 billion for the distribution network.
PEMEX:MX$2.07 trillion with an annual average of MX$345.5 billion will be allocated to strengthen exploration, production, and oil & gas.
Water: MX$20 billion will be invested in water projects in 2025, which will focus on cleaning up key rivers and modernizing irrigation systems covering 200,000 hectares of land. The primary watershed area includes the Lerma-Santiago, Atoyac, and Tula rivers. This section also includes the implementation of 16 infrastructure projects under the Mexican National Agreement for the Human Right to Water and Sustainability (as published on December 12th, 2024) that will include more than MX$16.4 billion of private investment.
Transportation and Mobility: To improve urban mobility and infrastructure, an investment in more than 3,000 km of railroads for passenger and cargo transportation is planned.
Public Housing: The plan contemplates the construction of one million homes (CONAVI and INFONAVIT) for which MX$513 billion will be allocated.
Additionally, the development of a National Technical Certification Program for 150,000 professionals and technicians per year is also being proposed as part of public investment in strategic sectors.
This entire investment plan, along with the adjustments in government budgets, represents a unique opportunity for foreign suppliers that engage in these strategic areas, to be considered by the Mexican Government for public procurement. Therefore, in addition to the benefits that this investment model offers suppliers eligible for public/state-banking funding and other incentives, this investment scheme results into an attractive option for both parties.
Digitalization and Efficiency in Administrative Processes
The MP proposes a complete digitalization and on-line channel for administrative applications to promote efficiency in obtaining authorizations for participation in commercial programs and investment projects. A launch date for this has not been announced yet. Our Firm has the team and capabilities to assist our clients in the design and implementation of strategies that allow them to benefit from the development of the proposed measures under the Mexico Plan.
State of Play: Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs
On Monday evening, the Office of Management and Budget (OMB) ordered all federal agencies to temporarily suspend grant and loan payments, with the exception of Social Security, Medicare, and “assistance provided directly to individuals.” In the internal memo, OMB’s Acting Director, Matthew Vaeth, calls for each agency to undertake a comprehensive analysis to ensure all grant and loan programs comply with the Administration’s Executive Orders. The pause applies to an estimated 2,600 accounts across the federal government, and details are still being worked out on federal funding that is statutorily obligated.
While intended to be temporary, the duration of the pause may vary by Department and program. Each federal department and agency are likely to interpret its scope and requirements differently and prioritize review of certain programs before others. This pause may have a profound effect on clients who were expecting to receive federal funds within the next two to six weeks. While the pause has the potential to affect any business or entity receiving federal grants or loans, clients receiving such funds as part of programs related to DEI initiatives, foreign aid, or federal clean energy investments, specifically electric vehicles, may be most impacted.
Some of the questions agencies must answer in the report for OMB include whether or not the program supports illegal immigrants, if the program supports abortion, gender ideology or DEI initiatives, or if the program supports activities that impose an undue burden on the identification, development, or use of domestic energy resources. It’s important to note, only a handful of President Trump’s cabinet secretaries and agency heads have been confirmed, making this process all the more complicated.
Key Facts
All federal assistance – with the exceptions listed above – will be paused starting today, January 28, at 5:00 pm ET.
This affects ALL federal agencies.
The government-wide freeze is temporary and is intended to allow each agency to conduct a comprehensive analysis of all federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s Executive Orders.
Agencies have until February 10, 2025, to submit to OMB detailed information on each program subject to this pause.
The freeze will include:
Issuance of new awards;
Disbursement of Federal funds under all open awards; and
Other relevant agency actions that may be implicated by Trump’s Executive Orders until OMB has reviewed and provided guidance based on what is received.
Could this Affect You?
Yes, if your business receives federal grants or loans, the pause will almost certainly affect you until at least February 10th and potentially beyond. If your company is concerned about the funding pause, or you are impacted by any of the recent Executive Orders, it is critical to determine the risk posed by the pause or Executive Order and to develop a response that evaluates both their legal and political options.
Understanding AB 303: Potential Impacts for California BESS Project Development
A week after a large-scale fire at the Moss Landing Power Plant in Monterey County,[1] California Assemblymember Dawn Addis (D- Morro Bay) introduced Assembly Bill (AB) 303. If passed, AB 303 – also referred to as the Battery Energy Safety & Accountability Act – will impact the development of large-scale battery energy storage system (BESS) projects in California. Intended to “improve safety standards and restore local oversight for [BESS] facilities in California,”[2] AB 303 will, among other things, limit approval authority to local governmental agencies, require local engagement in the permitting process, and establish mandatory buffer zones between BESS projects and “sensitive receptors.”
As currently drafted, AB 303 would apply to BESS facilities capable of storing 200 megawatt-hours (MWh) or more of energy. For such projects, the bill includes restrictive provisions that would:
limit where BESS facilities can be developed in California, including on “environmentally sensitive sites;”
prohibit BESS facilities within 3,200 feet of “sensitive receptors;”
exclude developers of BESS facilities – but not of energy storage facilities that use technologies other than battery storage – from applying to the California Energy Commission (CEC) Opt-In Certification Program under AB 205 (2022);[3] and
mandate that the CEC deny all pending BESS projects that are currently under review as of the bill’s effective date.
AB 303 defines “environmentally sensitive site” to include the following:
various areas within the coastal zone (as defined by the California Coastal Act);
“Prime Farmland” or “Farmland of Statewide Importance” (as defined by to the United States Department of Agriculture land inventory and monitoring criteria, as modified for California) or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that jurisdiction;
wetlands;
parcels in very high fire hazard severity zones;
hazardous waste sites;
parcels within a delineated earthquake fault zone;
parcels within a special flood hazard area or regulatory floodway;
parcels within a regulatory floodway as determined by Federal Emergency Management Agency (FEMA) in any official maps published by FEMA, unless certain exceptions apply;
lands identified for conservation in an adopted natural community conservation plan;
habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act, the California Endangered Species Act, or the Native Plant Protection Act; and
lands under conservation easement.
The bill defines “sensitive receptor” to include the following:
a residence, including a private home, condominium, apartment, or living quarter;
an education resource, including a preschool, school maintaining transitional kindergarten, kindergarten, or any of grades 1 to 12, inclusive, daycare center, park, playground, university, or college (in the case of universities and colleges, subject to some additional criteria);
a community resource center, including a youth center;
a health care facility, including a hospital, retirement home, or nursing home;
live-in housing, including a long-term care hospital, hospice, prison, detention center, or dormitory; and
a building housing a business that is open to the public.
California Governor Gavin Newsom has long been a supporter of clean energy, and ramping up battery energy storage has been a cornerstone of Newsom’s energy roadmap toward the state’s ambitious plan to achieve 100% clean electricity by 2045. Since the beginning of Newsom’s administration, the state has increased its battery capacity by 1,250% in an effort to integrate renewable energy, reduce greenhouse gas emissions, and enhance grid reliability.[4] Opposition to AB 303 believes the bill undermines state-identified objectives by (i) “severely limiting the development of large-scale battery storage projects,” and (ii) “setting a precedent for exclusionary policies that could stall innovation and investment in the energy storage sector.”[5] Opposition alleges that, as written, AB 303 has the potential to result in significant adverse consequences for California’s aforementioned clean energy goals.
AB 303 critics point out that the “Moss Landing facility was one of a kind, conceived and designed before modern safety standards were adopted for large grid batteries. Battery safety standards have been updated multiple times since it was built.”[6] According to the American Clean Power Association (ACP), the Moss Landing battery installation was housed inside a retrofitted 1950s-era power plant structure, in contrast to nearly all grid batteries installed in the past several years in modular, purpose-built outdoor containers, making Moss Landing “an anomaly among the industry” as “[l]ess than one percent of utility-scale energy storage installations are housed indoors.”[7] According to the project owner, Vistra Energy (Vistra), the fire was limited to the 300 MW battery installation within the indoor “Phase 1” portion of the facility, with Phases 2 and 3 (installed in modular containers) unaffected.[8] Energy storage fire safety specialist group Energy Safety Response Group (ESRG) reported that the Phase 1 project was approved in 2018, before California fire codes were updated to encompass large-scale battery storage and today’s product standards and certifications were in place for BESS equipment and installation. For example, the International Fire Code’s section on large BESS was not incorporated into the California Fire Code until 2020. Similarly, the National Fire Protection Association’s NFPA safety standard for stationary battery storage (NFPA 855) was published during the 2020 calendar year.[9] The Phase 1 facility also utilized nickel manganese cobalt (NMC) chemistry batteries, a high energy density battery developed for electric vehicles. The industry today has already largely moved away from NMC chemistry batteries to lithium iron phosphate (LFP) for stationary BESS applications. Although LFP, like NMC, can go into thermal runaway, it has a higher thermal runaway onset temperature and is therefore considered a more stable chemistry.[10]
As such, clean energy proponents believe public safety and environmental protection should not be addressed by overly-broad, reactionary and knee-jerk legislation.[11] Instead, the concerns identified in the aftermath of the Moss Landing incident, per clean energy industry groups, should be addressed through “thoughtful regulation and collaboration with the energy storage industry.”
Proponents of the bill, of course, disagree, stating that AB 303 establishes reasonable limitations on where BESS facilities can be located in response to the community’s strained trust of battery storage technology.[12]
AB 303 is presently proposed as an “urgency statute,” meaning it requires a two-thirds vote to pass but would take effect immediately upon passage (as opposed to January 1, 2026, or a later identified date).[13] Despite being designated an “urgency statute,” AB 303 will be subject to legislative review by both State houses, as well as related committees, and subject to the Governor’s review and potential veto. As such, there is a high likelihood that the bill, as presently drafted, will be subjected to modification.
FOOTNOTES
[1] The fire at the Moss Landing Power Plant, one of the world’s largest battery storage facilities, ignited on January 16, 2025, and burned for 5 days. The fire ultimately destroying around 80% of the batteries inside the building and resulted in evacuation orders for neighboring communities. Officials are demanding that Moss Landing remain offline until an investigation can be completed and major safety improvements implemented. Initial testing from the U.S. Environmental Protection Agency ruled that the levels of toxic gases released by the batteries, including hydrogen fluoride, did not pose a threat to public health during the fire. (See Clara Harter, ‘Horrifying’ fire at California lithium battery plant sparks calls for new clean energy rules, Los Angeles Times, January 26, 2025, accessible here.
[2] See Assemblymember Addis press release, Addis Introduces Legislation to Bolster Community Choice & Environmental Protections in Battery Projects, January 24, 2025, accessible here.
[3] The Opt-In Certification Program is an optional permitting process through which developers can submit project applications in order to get a permit from the CEC “in lieu of any permit that would normally be required by the local land use authority and most, but not all, state permits.” For a more detailed description of this program, please see a prior article here.
[4] See Governor Gavin Newsom press release, California Achieves Major Clean Energy Victory: 10,000 Megawatts of Battery Storage, April 25, 2024, accessible here. California projects it will need 52,000 MW of energy storage – or 3 times what it has now – by 2045 to meet energy needs while reaching its net-zero emissions goal.
[5] California Energy Storage Alliance, Opposition to Assembly Bill 303, January 24, 2025, accessible here. (“This legislation is excessive and does nothing to enhance public safety. Instead, it creates unnecessary barriers to the deployment of critical energy storage systems needed to stabilize our grid and support California’s transition to a clean energy future.”)
[6] Julian Spector, Why we don’t need to worry too much about the latest grid battery fire, Canary Media, January 27, 2025, accessible here. (“In this case, the lack of exact copycats is very good news: It means that the design elements that allowed Moss Landing to burn so apocalyptically are not present in newer or forthcoming battery plants.”)
[7] ACP, U.S. Energy Storage Industry Commitment to Safety & Reliability Summary of the Moss Landing Incident, January 23, 2025.
[8] Andy Colthorpe, Fire at Moss Landing Energy Storage Facility: What we know so far, Energy Storage News, January 24, 2025, accessible at: https://www.energy-storage.news/fire-at-moss-landing-energy-storage-facility-what-we-know-so-far/.
[9] Julian Spector, Why we don’t need to worry too much about the latest grid battery fire, Canary Media.
[10] Andy Colthorpe, Fire at Moss Landing Energy Storage Facility: What we know so far, Energy Storage News.
[11] “This proposal misses the mark,” ACP California executive director Alex Jackson said in a statement. “It takes an over broad approach that will make it harder to keep the lights on in California.” (Stephanie Zappelli, SLO County legislator pushes battery plant safety bill. Could it kill Morro Bat project?, The San Luis Obispo Tribune, January 25, 2025, accessible here.
[12] Such safety concerns were reflected in local 2024 Morro Bay ballot measure, which intended to block Vistra (same operator as Moss Landing) from obtaining local permits for construction and operation of BESS facilities on a now-defunct power plant. Although that measure passed, it is likely to be of no impact, as the project is being processed through the CEC Opt-In Program. (See Camille von Kaenel, World’s largest battery storage site on fire in central California, January 17, 2025, accessible here.
[13] Urgency statutes are bills affecting the “public peace, health, or safety.” All votes on urgency statutes require 2 votes – one for the bill itself and one to approve the “urgency” categorization.
Listen to this post
Next Steps for Policyholders in the Aftermath of the California Wildfires
The insurance claims process can be daunting even under the most ordinary circumstances; a catastrophic series of fires like Southern California is enduring has created extraordinary circumstances.
To help make the insurance part of the recovery process easier and answer some common policyholder questions, we’ve prepared the following guide for navigating the first steps after a wildfire:
Take care of your family’s immediate needs and personal safety first.
Identify all insurance policies that may provide coverage.
For individuals, this will include a personal homeowners or renters policy. Coverage, especially for temporary living expenses, may also be available under policies held by landlords, condominium associations, and property managers.
For businesses, this will be the business’s property insurance policy (possibly provided as part of a larger, or “package,” policy).
Ask the insurance company to send you an up-to-date and complete copy of each policy with current declarations pages that specify the amount of coverage available for particular types of losses.
Investigate whether insurance is available under other policies that you have purchased or under policies purchased by others (e.g., naming you as an “additional” insured for certain losses.)
Immediately contact your insurer or insurance broker or agent to provide notice. Your insurance policy will specify details to be provided in the notice and who to provide notice to, usually in the “Conditions” section and/or the policy’s Declarations. If you do not have a copy of your policy, include the following in the notice: the affected property address, the fire, and the policy number. If you do not have the policy number, the insurer or your insurance broker or agent should have it readily available.
If notice is provided through an insurance broker or agent, ask them to confirm in writing that all applicable insurers have been placed on notice.
Read the entire insurance policy carefully, including all endorsements or attachments. Be aware of any policy deadlines, such as for proof of loss submissions or starting reconstruction, and of statutes of limitations for filing suit, and consider seeking extensions from your insurer. Policy deadlines are also often found in the “Conditions” section. All extensions should be confirmed in writing. Deadlines may be extended or suspended by the Department of Insurance or otherwise under the law.
Some common policy provisions and issues include:
How much coverage do you have? The limits of your policy were set at the time you purchased your property and should be identified in the “Declarations” section. Some policies may provide additional funds through coverages, such as “extended replacement” coverage, which may provide an additional 25% or more of your limits, and “upgrade” coverage (see below).
What type of property coverage do you have? Most homeowners policies will cover the cost of repairing—or more likely, replacing—a home with like quality materials, subject to other policy terms and limitations. This should be provided in the “Building” or “Structure” coverage section. It is important to be aware that some insurance policies cover “actual cash value,” which is the cost to replace the value of the property insured minus depreciation and obsolescence. In contrast, other policies provide “replacement cost” coverage, which is intended to replace the lost or damaged property with property of like kind and quality.
What about personal property? Policies may cover the loss of personal property (insured property other than the house and other insured buildings) differently. As with coverage for buildings, personal property insurance may provide coverage on an ACV or replacement-cost basis. Some personal property may be “scheduled” and not subject to depreciation (e.g., antiques); such items should be replaced at full value (up to limits of that coverage). It is not uncommon for insurers in a catastrophic loss situation, like the wildfires, to make a rough calculation and provide an initial payment, subject to a later negotiated true-up.
Do I need to rebuild to be compensated under replacement cost coverage? Under California law, replacement cost coverage is not contingent on rebuilding—you can use all available coverages under the insurance policy to buy or build at a different location. The cost of your land is not deducted from the amount of coverage to be paid.
Do I need to itemize destroyed personal property? Some insurance policies provide a rider for specific personal property items like clothing, sports equipment, jewelry, or electronics, and insurers will already have that detail. If not, insurers will typically require itemization; however, in a mass catastrophe like the fires, they may relax their requirements. Ask them.
Does my policy cover building upgrades to comply with current ordinances? While many policies only cover the cost of repairing or replacing the home, not the cost of “upgrades” (even to comply with current ordinances or regulations), some policies do expressly make additional amounts available for the cost of complying with current regulations.
Does a property insurance policy cover smoke damage? Even if the property is not destroyed by fire, the structure and personal property may have sustained substantial smoke damage. Many insurance policies will cover this loss.
Will renters insurance cover my losses as a renter? While policy language varies, many renters insurance policies provide coverage for specific losses.
If I own a business, will insurance cover my lost earnings? Most commercial property policies also cover lost profits or lost earnings that result from a covered peril, such as fire. Some policies afford this coverage even if your property was not directly damaged by the fire, as long as certain nearby properties were affected. The terms and conditions of each insurance policy will define the scope and amount of these and other coverages.
Maintain copies of all communications with insurers and insurance representatives. A written diary tracking all exchanges may be valuable.
Some insurers may set up local centers to support the community and provide immediate assistance. Determine whether your insurer has this resource available.
Finding temporary housing is a priority. Many insurance companies provide for living expenses in the event of an emergency. Insurers may be able to assist in finding accommodations of similar size.
Many property insurance policies provide coverage for expenses incurred due to loss of use of a home. Often, this is referred to as additional living expense (ALE) or loss of use coverage. Pay particular attention to per-diem limits and keep track of all receipts.
Many insurance policies provide coverage for damaged landscaping replacement necessitated by a fire, though the way that policies cover, and limit coverage, may vary.
Some insurance companies will provide cash advances for living expenses and replacing personal property. Ask your insurer what benefits are immediately available under your policy.
Insurers should not request any releases or other documents with legal effect in the immediate aftermath of the fire. It is best to defer considering releases until you’ve had an opportunity to completely assess your loss and coverages under the policy and talk with a qualified expert, as necessary.
Insurer representatives will often be supportive and friendly. Assume the best. Think of discussions as part of a constructive negotiation—the insurer is a profit-oriented enterprise, and you are trying to restore your assets.
Insurers may send an adjuster to meet with you and inspect your property. If the adjuster makes a settlement offer, it is best to take time to assess whether the offer is fair and fully compensates you for your loss. You should not feel pressured to “take it or leave it.” Should that occur, seek counsel immediately.
Document your claim—including all your damages and costs—as thoroughly as possible and be honest in all documentation. Negotiations with the insurer will be facilitated by evidence of your destroyed property; photos, invoices, schedules, and receipts for all out-of-pocket expenses are excellent resources. Nothing will undermine a claim faster than exaggeration, overstating values, or padding with extra items.
Do not sign contracts for repairs or other needs until you have spoken with your insurance company or agent.
Beware of anyone—whether lawyer, contractor, adjuster, or insurer—attempting to rush you into a contract. Keep copies of all agreements that you do sign.
New Wave of Executive Orders Seek to Redirect EPA’s Focus
Within hours of taking office, President Trump issued a flurry of Executive Orders (EO), including several that will undoubtedly affect a wide range of environmental policies nationwide. While the full implications of these EOs, as well as potential additional actions, are far from clear at this early stage, there are several takeaways for those who are in the environmental-regulated community to consider.
While reviewing the summary below of a limited sampling of recent EOs touching on environmental policy, it is important to remember that a significant portion of environmental policy, regulation, and enforcement occurs at the state level and impacts from federal policies and approaches can take many years to be felt, if at all. In fact, in some instances, the policies and strategies at the federal level can produce the opposite approach at the state level. Therefore, it is crucial for any regulated entity to have a strong comprehension of the federal and state landscape as it may apply or interact with its operations, permits, and compliance.
Environmental Justice
With just one EO—Initial Recission of Harmful Executive Orders and Actions—nearly 80 EOs from the prior administration were revoked. The list included several EOs related to environmental justice, such as the “whole of government” approach and the “Justice40” initiative. Environmental justice was also singled out in “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which ordered federal agencies to terminate all environmental justice offices and positions.
Greenhouse Gases and Energy Resources
An EO entitled “Unleashing American Energy” directs the Environmental Protection Agency (EPA) and other agencies to review actions “that impose an undue burden on the identification, development, or use of domestic energy resources — with particular attention to oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy.” The apparent purpose here is to reverse course on greenhouse gas and other federal rules on various energy sources. Furthermore, EPA has been directed, within 30 days, to provide recommendations on the “legality and continuing applicability” of EPA’s 2009 GHG risk finding, which is the underpinning of EPA’s climate rules. Similarly, this EO does away with the “social cost of carbon” metric that was intended to monetize the benefits of policies that curb emissions.
Hiring Freeze and Return to Office
While not EOs, two executive memoranda will surely influence EPA through workforce impacts, resources, and management of priorities. The first, entitled “Return to In-Person Work,” directs all federal agencies, including the EPA, to terminate remote work arrangements and require employees to return to work in person on a full-time basis. The second, entitled “Hiring Freeze,” freezes federal civilian employee hiring, including EPA staff. The Office of Management and Budget is tasked with delivering a plan within 90 days to further shrink the federal workforce “through efficiency improvements and attrition.” It is very likely that staffing levels at the EPA will be reduced significantly, which could impact the EPA’s capacity to keep up with permitting and enforcement matters.
EPA Proposes Risk Management Rule to Protect Workers from Inhalation Exposure to PV29
On January 14, 2025, the U.S. Environmental Protection Agency (EPA) issued a proposed rule to address the unreasonable risk of injury to human health presented by Color Index (C.I.) Pigment Violet 29 (PV29) under its conditions of use (COU) as documented in EPA’s January 2021 risk evaluation and September 2022 revised risk determination. 90 Fed. Reg. 3107. The proposed rule states that the Toxic Substances Control Act (TSCA) requires that EPA address by rule any unreasonable risk of injury to health or the environment identified in a TSCA risk evaluation and apply requirements to the extent necessary so the chemical no longer presents unreasonable risk. To address the identified unreasonable risk, EPA proposes requirements to protect workers during manufacturing and processing, certain industrial and commercial uses of PV29, and disposal, while also allowing for a reasonable transition period prior to enforcement of said requirements. Comments are due February 28, 2025. EPA notes that under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives comments on or before February 13, 2025.
As reported in our January 25, 2021, memorandum, pursuant to TSCA Section 6(b), EPA determined that PV29 presents an unreasonable risk of injury to health, without consideration of costs or other nonrisk factors, including an unreasonable risk to potentially exposed or susceptible subpopulations (PESS) identified as relevant to the 2021 risk evaluation for PV29 under the COUs. EPA notes that the term “conditions of use” is defined in TSCA Section 3(4) to mean the circumstances under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of. To address the unreasonable risk, EPA proposes, under TSCA Section 6(a), to:
Require use of assigned protection factor (APF) 50 respirators and equipment and area cleaning to address the risk from inhalation exposure to dry powder PV29 (also referred to as regulated PV29), where dry powder PV29 is expected to be present, for the following COUs:
Domestic manufacture;
Import;
Incorporation into formulation, mixture, or reaction products in paints and coatings;
Incorporation into formulation, mixture, or reaction products in plastic and rubber products;
Intermediate in the creation or adjustment of color of other perylene pigments;
Recycling;
Industrial and commercial use in automobile (original equipment manufacturer (OEM) and refinishing) paints and coatings;
Industrial and commercial use in coatings and basecoats paints and coatings;
Industrial and commercial use in merchant ink for commercial printing; and
Disposal.
Require manufacturers (including importers), processors, and distributors in commerce of regulated PV29 to provide downstream notification of the requirements.
Require recordkeeping.
EPA notes that not all TSCA COUs of PV29 are subject to the proposed rule. As described in the 2021 risk evaluation and the September 2022 revised unreasonable risk determination, four COUs do not contribute to the unreasonable risk: distribution in commerce; industrial/commercial use in plastic and rubber products — automobile plastics; industrial/commercial use in plastic and rubber products — industrial carpeting; and consumer use in professional quality watercolor and acrylic artist paint. Consumer use in professional quality watercolor and acrylic artist paint was the only consumer COU evaluated as part of the 2021 risk evaluation. More information on EPA’s September 2022 revised unreasonable risk determination is available in our September 9, 2022, memorandum.
EPA requests public comment on all aspects of the proposed rule. According to EPA’s December 20, 2024, press release, EPA “is especially interested in hearing perspectives from the public on the feasibility and effectiveness of the proposed requirements for worker protections, including from workers and entities that would be required to implement the workplace protections.”
Commentary
EPA’s evaluation of PV29 was expected to be “easy” when it was identified as one of the first ten chemicals selected for risk evaluation. PV29 is a poorly soluble, low toxicity (PSLT) particle. EPA’s approach to PSLTs has been evolving over the years and has been the subject of controversy, including whether carcinogenicity in rats from “kinetic lung overload…[where the] dust overwhelms the lung clearance mechanisms over time” is relevant to humans.
Since EPA first issued its 1994 document titled “Methods for Derivation of Inhalation Reference Concentrations (RfCs) and Application of Inhalation Dosimetry,” scientific advances in mechanistic modeling of inhalation dosimetry have matured. The scientific understanding of the most appropriate dose metric for PSLTs (i.e., retained dose, not deposited dose) has also evolved. In 1994, EPA developed the regional deposited dose ratio (RDDR) model, an empirical model that provides predictions of deposited dose. In 2021, EPA developed an update to the multiple-path particle dosimetry (MPPD) model (i.e., MPPD EPA 2021 v.1.01). This model is an improvement over the RDDR model because it incorporates the best available science, including “some dose metric predictions…based on mechanistic descriptions instead of empirical fitting…[and] providing prediction of retained mass….” Prior to this update, MPPD was already recognized as a superior model versus RDDR for inhalation dosimetry. For example, EPA’s Integrated Risk Information System used MPPD when developing an inhalation reference concentration for benzo[a]pyrene in January 2017; the National Institute for Occupational Safety and Health also used MPPD for developing its recommended exposure limit for carbon nanotubes in April 2013.
EPA used the MPPD model in the revised draft risk evaluation for PV29. EPA subsequently used the RDDR model in the Final PV29 risk evaluation. EPA stated that “The change in model [i.e., RDDR rather than MPPD] resulted in unreasonable risk determinations for all [occupational nonusers] ONUs and industrial and commercial use in automobile paint [original equipment manufacturer] OEM and refinishing condition of use” (emphasis added). EPA justified this change by stating “The MPPD model was not thought to be appropriate because the particle size data was not robust enough and the MPPD model cannot calculate [human equivalent concentrations] HECs for the hamster data…, while the RDDR model can accept hamster data input.” We find this justification hollow. EPA did not state why the particle size data were robust enough for the RDDR model but not the MPPD model. Further, EPA did not use the hamster data as the basis for its point of departure (POD) in the Final PV29 risk evaluation. We suspect this change was based on a preferred outcome (i.e., unreasonable risks), rather than an objective scientific evaluation to determine if there is unreasonable risk.
Interestingly, EPA calculated an existing chemical exposure limit (ECEL) of 0.014 mg/m3 for PV29, but it did not provide the underlying documentation for this value. Instead, EPA only stated that it chose not to propose an ECEL for PV29 because EPA was unable to identify a “method with a limit of detection lower than the calculated ECEL….” Without the underlying documentation, it is impossible to determine if EPA’s proposed regulatory action is based on the best available science or if the protective measures meet the requirement to protect workers “to the extent necessary” to mitigate the risk identified.
EPA derived PODs based on the HEC of 0.28 mg/m3 derived from rats and the HEC of 0.16 mg/m3 that it derived from hamsters, but these PODs are based on a dose metric (i.e., deposited dose) that does not represent the best available science (i.e., retained dose). EPA should have used the results of the rat inhalation study (the most sensitive species) and calculated the HEC based on the retained dose. That would provide a POD that would be both health protective and based on the best available science. Without that POD and an appropriate benchmark margin of exposure (MOE), EPA cannot justify its proposed regulatory action.
The proposed PV29 risk management rule has the potential to be more impactful than other EPA risk management rules because of the thousands of PSLTs listed on the TSCA Inventory. If either of EPA’s proposed risk management options is issued in final, it will set a bad precedent by serving as the basis for all of EPA’s risk evaluations for PSLTs when respirable particles are formed. Stakeholders need to be aware and be engaged. It is critically important that the rule be based on the best available science. This is a good opportunity for EPA to work with the U.S. Occupational Safety and Health Administration (OSHA) to revise the permissible exposure limit (PEL) for particulates not otherwise regulated (PNOR) (PSLTs fall into this category), given the immense number of opportunities for exposure to PSLT dust in the workplace, many of which are not under TSCA authority.
EPA Releases New MyPest Tracking System
On January 17, 2025, the U.S. Environmental Protection Agency (EPA) released its new MyPest tracking system to provide transparency and visibility into the real-time status of pesticide submissions. MyPest is a web-based system that tracks a registrant’s pesticide applications and products after submission via EPA’s Central Data Exchange (CDX). MyPest allows users to view and communicate with the Office of Pesticide Programs (OPP) regarding their pesticide products and pending applications.
Pursuant to the requirements in the Pesticide Registration Improvement Act of 2022 (PRIA 5), MyPest seeks to provide accurate, up-to-date information about pesticide applications that are with EPA’s OPP for review.
The MyPest application is available at https://oppt.my.site.com/mypestapp/s/.
EPA provides a user guide with instructions for using the MyPest application for specific functions based on the four available roles, including:
Company Admin (CA)
Every registrant company must have at least one user designated as the CA.
This the highest level in the hierarchy of user roles and gives the user the most access and control of any role in the company.
CAs can view the status of all current projects and can access product history to view information about previously submitted projects.
CAs are the only users allowed to invite new users, approve or deny new user requests, and revoke the access of a user.
A company can have multiple CAs, however, only the first CA for a company is approved directly by EPA. No other role can be assigned to a company before the first CA is approved by EPA. After the first CA is approved, that person will approve all other roles, including additional CA roles.
CAs can be assigned to multiple companies.
Company Representative (CR)
A company can have multiple CRs.
CRs have access to all user submissions on behalf of the company.
CRs can be assigned to multiple companies.
Consultant
A company can have multiple Consultants.
Consultants only have access to view the projects that they are currently working on or have worked on in the past.
By default, Consultants only have access to view information at the case level but can request to view the information at the product level. The Consultant’s cases are assigned by the CAs.
Contributor
Contributors are assigned for a specific purpose and for a limited time.
All information submitted by the Contributor is marked as “Confidential” but can be toggled on and off.
Any information marked as “Confidential” only can be viewed by the Contributor.
The CA assigns cases to the Contributor upon role request approval.
All MyPest roles are established per EPA Company Number. If a company has multiple Company Numbers, then a CA will need to be set up for each unique EPA Company Number.
The company CA first must request the CA role in MyPest. EPA approves only the first CA per EPA Company Number, as the CA then will approve future role requests.
ECHA Adds Five Chemicals to the Candidate List and Updates One Entry
The European Chemicals Agency (ECHA) announced on January 21, 2025, that it added five chemicals to the Candidate List of substances of very high concern (SVHC) and updated one entry:
Substance Name
Reason for Inclusion
Examples of Uses
6-[(C10-C13)-alkyl-(branched, unsaturated)-2,5-dioxopyrrolidin-1-yl]hexanoic acid
Toxic for reproduction (Article 57(c))
Lubricants, greases, release products, and metal working fluids
O,O,O-triphenyl phosphorothioate
Persistent, bioaccumulative, and toxic (PBT) (Article 57(d))
Lubricants and greases
Octamethyltrisiloxane
Very persistent, very bioaccumulative (vPvB) (Article 57(e))
Manufacture and/or formulation of: cosmetics, personal/health care products, pharmaceuticals, washing and cleaning products, coating and non-metal surface treatment, and in sealants and adhesives
Perfluamine
vPvB (Article 57(e))
Manufacture of electrical, electronic, and optical equipment and machinery and vehicles
Reaction mass of: triphenylthiophosphate and tertiary butylated phenyl derivatives
PBT (Article 57(d))
No active registrations
Updated entry
Tris(4-nonylphenyl, branched and linear) phosphite
Endocrine disrupting properties (Article 57(f) — environment)
Polymers, adhesives, sealants, and coatings
ECHA states that its Member State Committee confirmed the addition of these chemicals to the Candidate List, which now has 247 entries. ECHA notes that some entries are groups of chemicals, so the overall number of impacted chemicals is higher. Candidate List chemicals may be placed on the Authorization List in the future. If a substance is on that list, its use will be prohibited unless companies apply for authorization and the European Commission (EC) authorizes them to continue its use.
Under the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (REACH), companies have legal obligations when their substance is included — either on its own, in mixtures, or in articles — on the Candidate List. Suppliers of articles containing a Candidate List substance above a concentration of 0.1 percent (weight by weight) must provide their customers and consumers information on how to use the article safely. ECHA notes that consumers have the right to ask suppliers whether the products they buy contain SVHCs. Importers and producers of articles must notify ECHA if their article contains a Candidate List substance within six months from the date it has been included on the list (January 21, 2025). European Union (EU) and European Economic Area (EEA) suppliers of substances on the Candidate List, supplied either on their own or in mixtures, must update the safety data sheet (SDS) provided to customers.
Under the Waste Framework Directive, companies also have to notify ECHA if the articles they produce contain SVHCs in a concentration above 0.1 percent (weight by weight). ECHA will publish this notification in its database of substances of concern in products (SCIP). Under the EU Ecolabel Regulation, products containing SVHCs cannot have the ecolabel award.