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This quarterly publication supplies important updates on
litigation, regulatory, legislative, and different notable developments
involving chemical compounds of concern to enterprise. Our major focus
continues to be issues affecting chemical substances that are the
topic of regulatory exercise or scrutiny by numerous federal and
state authorities companies and potential litigants. This contains
rising contaminants, together with per- and polyfluoroalkyl
substances (PFAS), in addition to substances recognized by the
Environmental Protection Agency (EPA or the Agency) beneath the 2016
amendments to the Toxic Substances Control Act (TSCA) for
prioritization, danger analysis, or regulation.
Table of Contents
Litigation
- FOIA Lawsuits Seek Documents on EPA’s PFAS “Working
Definition” and PFAS-Containing Pesticide Containers - Industry Challenging Latest PIP (3:1) Compliance Date
Extension - Litigation over TRI Exemptions for PFAS Stayed
- Proposed Consent Decree Sets Schedule for TRI Listing
Determination for DINP - California Federal Court Grants EPA Request to Transfer
Challenge to Response to PFAS Testing Petition to North
Carolina - EPA Asks for Voluntary Remand in Challenge to DecaBDE TSCA Risk
Management Rule
Federal Developments
- Legislative Developments
- Regulatory Developments
State Regulatory & Legislative Action
- California
- Maryland
- Ohio
- Washington
Litigation
FOIA Lawsuits Seek Documents on EPA’s PFAS “Working
Definition” and PFAS-Containing Pesticide Containers
On April 28, 2022, Public Employees for Environmental
Responsibility (PEER) filed a Freedom of Information Act (FOIA)
lawsuit in federal courtroom within the District of Columbia to compel EPA
to reveal information and communications associated to the Agency’s
improvement of a “working definition” of per- and
polyfluoroalkyl substances (PFAS).1 PEER alleged that it
filed the motion after EPA failed to offer paperwork or make a
last dedication on PEER’s October 2021 request for
paperwork. PEER alleged that its FOIA request “constructed
upon” the use of the phrase “working definition” on
a webpage addressing PFAS in pesticide packaging and in EPA’s
proposed rule entitled “TSCA Section 8(a)(7) Reporting and
Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl
Substances.” PEER additionally filed an earlier lawsuit searching for
paperwork associated to EPA’s March 2021 launch of testing knowledge
exhibiting PFAS contamination from excessive-density polyethylene pesticide
containers.2
Industry Challenging Latest PIP (3:1) Compliance Date
Extension
On April 11, 2022, commerce associations filed a petition for
evaluate within the DC Circuit Court of Appeals difficult EPA’s
last rule extending the compliance date for a prohibition on
processing and distributing in commerce sure articles containing
phenol, isopropylated phosphate (3:1) (PIP (3:1)) and the PIP (3:1)
used to make these articles.3 The last rule-which EPA
revealed on March 8, 2022-extended the compliance date to October
31, 2024.4 EPA adopted the PIP (3:1) prohibition in a
January 2021 danger administration rule5 promulgated beneath
TSCA Section 6(h), which supplies for an expedited course of to
set up danger administration necessities for persistent,
bioaccumulative and poisonous chemical substances. The authentic
compliance date for the prohibition at challenge was March 8, 2021.
After stakeholders raised issues concerning the prohibition’s
impacts on shopper and business items, together with digital
units, EPA issued a short lived no-motion assurance till September
20216 and subsequently adopted a last rule that
offered a brief-time period extension till March 8, 2022.7
The commerce associations that filed the April 28 petition have additionally
challenged the January 2021 danger administration rule in addition to the
earlier extension of the compliance date. The DC Circuit has
consolidated the three proceedings.
Litigation over TRI Exemptions for PFAS Stayed
After EPA introduced in March 2022 that it deliberate to suggest a
rule to make PFAS ineligible for the de minimis exemption
to Toxics Release Inventory (TRI) reporting,8 the
federal district courtroom for the District of Columbia granted
EPA’s movement to remain litigation difficult utility of TRI
exemptions to PFAS till September 30, 2022.9 The
plaintiffs additionally contend that the exemptions themselves-which had been
established in 1988 and 1994-exceed EPA’s authority beneath the
Emergency Planning and Community Right-to-Know Act. A joint standing
report is due September 22, 2022.
Proposed Consent Decree Sets Schedule for TRI Listing
Determination for DINP
EPA and 4 environmental advocacy organizations agreed to a
proposed consent decree that may set a schedule for EPA to take
last motion on a 2000 proposal to checklist diisononyl phthalate (DINP)
on the TRI. The proposed consent decree would require that an EPA
official both signal a last rule itemizing DINP or a discover of
withdrawal of the proposed rule no later than January 31,
2023.10 The consent decree would resolve a lawsuit filed
by the organizations in 2021.11
California Federal Court Grants EPA Request to Transfer
Challenge to Response to PFAS Testing Petition to North
Carolina
In a lawsuit introduced by environmental teams difficult
EPA’s responses to the teams’ petition asking EPA to
require health- and environmental-results testing of 54 PFAS
allegedly launched into the Cape Fear River watershed in North
Carolina, the federal district courtroom for the Northern District of
California granted EPA’s movement to switch the case to the
Eastern District of North Carolina.12 The courtroom discovered
that the case may have been introduced within the Eastern District of
North Carolina initially since at the very least two of the plaintiffs had been
based mostly throughout the district’s boundaries and “a considerable
a part of the occasions giving rise to plaintiffs’
declare”-including alleged hurt to wildlife and residents within the
watershed from PFAS releases-occurred there. The courtroom additional
concluded that the native curiosity in having the dispute determined at
residence (and the “minor connection” between the
plaintiffs’ declare and the Northern District of California), the
comfort of the witnesses and the pursuits of justice favored
switch.
EPA Asks for Voluntary Remand in Challenge to DecaBDE TSCA Risk
Management Rule
On March 15, 2022, EPA requested the Ninth Circuit Court of Appeals
for a voluntary remand with out vacatur of a problem to EPA’s
January 2021 TSCA Section 6(h) danger administration rule for the flame
retardant decabromodiphenyl ether (decaBDE).13 The last
rule prohibited manufacture (together with import), processing and
distribution in commerce of decaBDE, or decaBDE-containing merchandise
or articles, with some exclusions. EPA advised the courtroom that it had
determined to rethink points of the rule and “to find out
whether or not additional reductions to publicity to decaBDE are
practicable.” EPA argued that the petitioners wouldn’t endure
undue prejudice as a result of EPA intends to behave expeditiously and
publish a proposed rule in spring of 2023 and last rule by
roughly the autumn of 2024. EPA additionally argued {that a} voluntary
remand would serve the pursuits of judicial economic system since
EPA’s reconsideration may tackle the petitioners’ claims
or slim their scope. The petitioners-Alaska Community Action on
Toxics, Yurok Tribe, Consumer Federation of America, Learning
Disabilities Association of America, and Center for Environmental
Transformation-opposed the movement. Briefing was accomplished on April
22, 2022.
Federal Developments
Legislative Developments
PFAS Research Bill Approved by House Committee
The House Committee on Science, Space, and Technology authorised,
by voice vote, an amended model of the “Federal PFAS
Research Evaluation Act” (HR 7289), which might require that two research
be ready by the National Academies of Sciences, Engineering, and
Medicine. The first examine would “additional tackle analysis and
data gaps” recognized at a federal PFAS analysis workshop
in October 2020 and “establish analysis and improvement wanted
to establish, categorize, consider, and tackle particular person or complete
PFAS.” The laws specifies parts that have to be
included within the examine, together with consideration of life-cycle
data on PFAS-containing merchandise to establish potential human
publicity sources and consideration of “whether or not chemical
class-based mostly approaches can be acceptable for evaluating PFAS
toxicity and publicity.” The second examine can be meant to
present a greater understanding of “the analysis and
improvement wanted to advance the understanding of the extent and
implications of human and environmental contamination by PFAS, how
to handle and deal with such contamination, and the event of secure
alternate options.” The laws requires {that a} report on every
examine be submitted to Congress inside 540 days after agreements are
entered into with the National Academies for preparation of the
research. After the research are submitted, the Director of the
Office of Science and Technology Policy, in coordination with
related federal companies, can be required to submit an
implementation plan “for elevated collaboration and
coordination of Federal PFAS analysis, improvement, and
demonstration actions.”
Regulatory Developments
EPA Releases 2020 Chemical Data Reporting
Information
On May 12, 2022, EPA introduced the publication of data
submitted through the 2020 Chemical Data Reporting (CDR)
cycle.14 The CDR rule, which is promulgated beneath TSCA
Section 8(a), requires producers (together with importers) of
chemical substances to report details about manufacturing and use
of sure chemical compounds on the TSCA Inventory each 4 years. EPA
famous that the information made obtainable on this launch included, for
the primary time, data associated to particular chemical identities
for substances that misplaced their confidential standing for the reason that final
launch as a result of a number of producers reported the chemical
identities as nonconfidential in 2012, 2016, and/or 2020 reporting.
Based on its evaluate, EPA declassified 377 chemical
identities.15 In its announcement of the discharge, EPA
mentioned “[l]ongstanding resource shortfalls” restricted
EPA’s skill to create a extra strong CDR reporting device and
that the Agency’s knowledge high quality efforts took longer than regular
resulting from competing TSCA priorities.
EPA Proposes New Regulations for TSCA Confidential Business
Information Claims
On May 12, 2022, EPA proposed new and amended necessities for
asserting and treating confidential enterprise data (CBI)
claims beneath TSCA.16 Many of the proposed amendments are
meant to implement statutory adjustments made by the 2016 amendments
to TSCA. EPA mentioned different advantages of the proposed rule would come with
improved administration of CBI, improved communication, elevated
public transparency for chemical data, decreased frequency
of submitter error, and elevated procedural effectivity. The
proposal consolidates TSCA CBI declare assertion and evaluate
procedures within the TSCA rules, primarily in a brand new Part 703,
and would make clear that almost all of EPA’s usually relevant CBI
guidelines in 40 CFR Part 2 not apply. Consistent with the 2016
amendments, the proposed rule would require that confidentiality
claims be asserted on the time of submission. The proposal additionally
contains an ordinary set of substantiation questions for TSCA CBI
claims (however supplies that particular person TSCA guidelines could modify these
questions) and incorporates statutory exemptions to substantiation
necessities. EPA proposed two variations of a CBI substantiation
query regarding whether or not disclosure of data will outcome
in “substantial competitive harm,” in addition to
alternate options to a query regarding patents. In addition, EPA
sought touch upon whether or not a substantiation query relating to commerce
secrets and techniques would supply worth. EPA proposed to require public copies
of submissions containing confidentiality claims, and to require
that public copies be amended following the denial or expiration of
a confidentiality declare. Other proposed provisions that implement
statutory necessities embody a requirement for submission of a
supporting assertion and certification for every confidentiality
declare and submission of a generic identify for a substance when its
particular chemical id is claimed as confidential. Under the
proposed rule, almost all TSCA confidentiality claims must
be asserted electronically, and corporations can be required to
preserve present contact data for people related
with a submission. Harmonized templates (utilizing Organisation for
Economic Co-operation and Development (OECD) Harmonized Templates)
can be required for submissions of well being and security research and
data from such research. The proposed rule additionally would
set up procedures for EPA to reply to CBI declare deficiencies,
in addition to procedures for voluntarily withdrawing confidentiality
claims. The rule would codify EPA’s present observe of
reviewing all confidentiality claims in each fourth submission
obtained by way of CDX that comprises a CBI declare, aside from
confidentiality claims for chemical id, all of that are
reviewed besides these topic to an exemption. EPA’s proposed
substantive standards for evaluate of confidentiality claims would
usually mirror the prevailing standards in 40 CFR Part 2 however would
be modified to mirror the 2016 amendments’ necessities,
together with to align with the “substantial aggressive
hurt” language within the statute. The standards additionally would make clear
that whether or not a substance’s id might be readily decided
by reverse-engineering is an element that EPA considers when
evaluating whether or not data can legitimately and fairly be
obtained and not using a firm’s consent. The proposed rule would
permit the EPA General Counsel to designate one other EPA workplace to
make last confidentiality determinations. The remark interval on
the proposed CBI rule closes on July 11.
EPA Releases Proposed Asbestos Reporting and Recordkeeping
Rule for Public Comment
On May 6, 2022, EPA revealed a proposed rule beneath TSCA Section
8(a) that may set up a one-time reporting requirement for
sure individuals that manufactured, imported or processed
asbestos-together with asbestos as a element of a combination,
asbestos-containing articles and asbestos as an impurity-within the
4 years previous to the date of publication of the ultimate
rule.17 Information required to be reported would
embody portions of asbestos manufactured (together with imported) or
processed, kinds of use, worker knowledge reminiscent of variety of staff
related to an exercise, whether or not private protecting tools
was used, and any office publicity measurement assessments. EPA
sought touch upon assortment of further knowledge parts associated to
staff, wastewater discharge and waste disposal, air emissions,
and buyer websites. EPA mentioned the Agency and different federal companies
would use the reported data in future actions reminiscent of TSCA
danger analysis and danger administration actions. EPA additionally famous that
it was proposing this rule to adjust to a settlement in
litigation that challenged EPA’s denial of rulemaking petitions
that requested that EPA amend the CDR Rule to extend reporting of
asbestos-associated data. The proposed rule defines
“asbestos” to incorporate asbestiform fibers of six fiber
sorts-chrysotile (serpentine), crocidolite (riebeckite), amosite
(cummingtonite-grunerite), anthophyllite, tremolite or
actinolite-and Libby Amphibole asbestos. EPA additionally sought touch upon
whether or not the element elements of Libby Amphibole asbestos additionally ought to
be included throughout the rule’s scope. In addition, EPA proposed
that Libby Amphibole asbestos be eligible for a small enterprise
reporting exemption however proposed that the opposite six fiber sorts
wouldn’t be eligible for the exemption as a result of they’re topic to
a 1989 TSCA Section 6 danger administration rule. The proposed rule would
require a reporting entity to offer data to the extent it
is “known to or reasonably ascertainable by” the entity,
which might require a “an inexpensive inquiry throughout the full
scope of their group” and may also entail inquiries
exterior the group. EPA proposed each a brief kind (Form A)
for submitters that aren’t in a position to present a dependable amount of
asbestos in merchandise and a full kind (Form B) the place extra detailed
data is thought or moderately ascertainable. A 3-month
reporting interval would start six months after the ultimate rule’s
efficient date. Comments on the proposed rule are due July 5,
2022.
EPA Proposes TSCA Risk Management Rule for Chrysotile
Asbestos
On April 12, 2022, EPA revealed a proposed danger administration rule
for chrysotile asbestos beneath TSCA Section 6.18 The
proposed rule is the primary that EPA has issued pursuant to the 2016
amendments to TSCA, which established a framework for EPA to
conduct danger evaluations of current chemical substances and, based mostly
on the findings of these evaluations, promulgate danger administration
guidelines. The proposed rule would prohibit manufacture, import,
processing, distribution in commerce, and business use of
chrysotile asbestos for nearly each use addressed in Part 1 of
EPA’s danger analysis for asbestos. (EPA is at the moment within the
technique of conducting Part 2 of the chance analysis, which is able to
study legacy makes use of and nonchrysotile types of asbestos.) The makes use of
that the proposed danger administration rule would prohibit are:
chrysotile asbestos diaphragms to be used within the chlor-alkali
business; chrysotile asbestos-containing sheet gaskets utilized in
chemical manufacturing; chrysotile asbestos-containing brake blocks
used within the oil business; aftermarket automotive chrysotile
asbestos-containing brakes/linings; different chrysotile
asbestos-containing automobile friction merchandise; different chrysotile
asbestos-containing gaskets; aftermarket automotive chrysotile
asbestos-containing brakes/linings for shopper use; and different
chrysotile asbestos-containing gaskets for shopper use. EPA additionally
proposed disposal and recordkeeping necessities for these
situations of use. The solely use for which chrysotile asbestos will
not be prohibited is use with the NASA Super Guppy Turbine
plane. EPA proposed that the prohibitions on chrysotile asbestos
diaphragms within the chlor-alkali business and sheet gaskets in
chemical manufacturing take impact two years after the ultimate
rule’s efficient date and that different prohibitions take impact
180 days after the efficient date. However, EPA proposed an
various regulatory motion that may impose a ban on such
diaphragms and gaskets 5 years after the efficient date and
require compliance with an current chemical compounds publicity restrict prior
to the ban taking impact. For different makes use of, EPA proposed an
various ban that may take impact two years after the
efficient date, with sure disposal and downstream notification
and signage and labeling necessities taking impact earlier.
EPA’s proposal acknowledged that substitutes for
asbestos-containing diaphragms in chlor-alkali manufacturing use
elevated concentrations of PFAS. The Agency requested touch upon
how a transition from asbestos-containing diaphragms may have an effect on
PFAS exposures. EPA mentioned it believed that the advantages of eradicating
chrysotile asbestos are vital although there are
uncertainties relating to potential further PFAS publicity.
Comments on the proposed danger administration rule are due July 13,
2022.19
EPA Issues TSCA Section 4 Test Orders for Eight
High-Priority Substances Undergoing Risk Evaluations
On March 24, 2022, EPA introduced that it had issued a second
spherical of TSCA Section 4(a)(2) check orders to acquire data
from producers and/or processors on eight excessive-precedence
substances present process TSCA danger evaluations.20 Six of
the substances are chlorinated solvents and two are flame
retardants. In January 2021, EPA issued a spherical of check orders for
the identical eight substances requiring testing on aquatic
environmental hazard and inhalation and dermal exposures for
staff. In this second spherical, EPA required improvement and
submission of knowledge on avian and aquatic environmental hazard and
shopper publicity. In April 2022, EPA issued corrected check orders
for seven of the chemical substances. For among the chemical compounds,
the corrections included the addition or substitute of recipients.
Information about Section 4 check orders, together with assets for
recipients of such orders, is on the market on EPA’s web site.
EPA Requests Public Comment on IRIS Study on
Formaldehyde
On April 14, 2022, EPA revealed a discover searching for touch upon the
draft Integrated Risk Information System (IRIS) Toxicological
Review of Formaldehyde (Inhalation).21 EPA beforehand
issued a draft IRIS evaluation of formaldehyde in 2010. EPA
formally suspended the IRIS evaluation in June 2018 and unsuspended
the evaluate in March 2021. The 2022 exterior evaluate draft thought of
publicly obtainable research related to inhalation publicity to
formaldehyde and potential opposed well being outcomes. For noncancer
results, the draft report discovered that the built-in proof
demonstrates that inhalation of formaldehyde causes elevated
sensory irritation and respiratory tract pathology in people, given
acceptable publicity circumstances, and that proof signifies
that formaldehyde inhalation causes decreased pulmonary perform,
elevated frequency of present bronchial asthma signs or problem
controlling bronchial asthma, elevated allergic responses, and feminine
reproductive or developmental toxicity and reproductive toxicity in
males. The draft set a reference focus of 0.007 mg/m3, which
can be the focus an individual can breathe day by day for a
lifetime that isn’t anticipated to trigger dangerous noncancer well being
results. For most cancers results, the evaluate draft stories that proof
demonstrates that formaldehyde causes nasopharyngeal most cancers,
sinonasal most cancers and myeloid leukemia. The exterior evaluate draft is
obtainable on EPA’s web site. Comments are due June 13, 2022. After
the general public remark interval, the National Academy of Sciences,
Engineering, and Medicine will convene a public assembly to debate
the draft report.
White House Seeks Input on Meaning of “Sustainable
Chemistry”
On April 4, 2022, the White House Office of Science and
Technology Policy (OSTP) revealed a request for enter on the
most popular definition of “sustainable
chemistry.”22 The William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021 tasked OSTP
with making a consensus definition of “sustainable
chemistry” for prioritizing and implementing federal applications
and actions in assist of sustainable chemistry.23
The matters on which OSTP seeks remark are the next:
definition of sustainable chemistry, applied sciences that may
profit from federal consideration to maneuver society towards extra
sustainable chemistry and basic analysis areas. Ancillary
matters relating to the definition embody potential consequence and
output metrics based mostly on the definition of sustainable chemistry,
monetary and financial issues for advancing sustainable
chemistry, coverage issues for advancing sustainable
chemistry, and funding issues when prioritizing federal
initiatives for examine. OSTP famous that “sustainable” and
“green” chemistry have usually been handled as
synonymous phrases however that inexperienced chemistry has historically centered
on hazardous substances whereas sustainable chemistry focuses on each
hazardous and nonhazardous substances. OSTP requested for enter on how
the phrases relate to one another and whether or not they need to be
synonymous, unique or complementary, or if one needs to be
included into the opposite. OSTP has convened a number of on-line
conferences to debate its efforts. The remark interval closes on June
3, 2022.
EPA Announced Plan for Perchlorate in Drinking
Water
EPA introduced on March 31, 2022 that it will depart in place the
Trump administration choice to not regulate perchlorate in
ingesting water, saying the Trump administration’s choice was
based mostly on the “greatest obtainable peer reviewed
science.”24 In 2020, the Trump administration
decided that the substance didn’t meet the factors for
regulation as a ingesting water contaminant beneath the Safe Drinking
Water Act (SDWA).25 Although the Biden administration
won’t proceed with rules, EPA mentioned the Agency would take
different actions to deal with perchlorate, together with analysis into
perchlorate ranges in our bodies of water after fireworks shows, and
would proceed to contemplate if perchlorate needs to be added to future
Contaminant Candidate Lists for potential regulation beneath the
SDWA.
EPA Issued Guidance on Exemptions from TSCA Formaldehyde
Rule for Composite Wood and Proposed Technical Updates to Emission
Standards
In the March 29, 2022 challenge of the Federal Register,
EPA revealed a proposal to replace the Formaldehyde Emission
Standards for Composite Wood Products rules beneath
TSCA.26 The proposed revisions replace voluntary
consensus requirements that the rules incorporate by reference;
the updates mirror the present variations utilized by regulated entities
and business stakeholders. The proposed rule additionally would supply for
distant inspections by third-social gathering certifiers within the occasion of unsafe
situations such because the pandemic. EPA additionally proposed technical
corrections, together with to make clear knowledge necessities for emission
requirements, to make clear timing for testing panels after manufacturing
and to align with California Air Resources Board necessities. The
remark interval for the proposed rule closed on April 28, 2022. On
March 31, EPA launched further steerage for laminated product
producers and stakeholders on submitting petitions to request
exemptions from the hardwood plywood formaldehyde emission
requirements and sure third-social gathering certification
necessities.27 Producers of laminated merchandise will
turn out to be topic to the emission requirements for hardwood plywood on
March 22, 2024 except they meet one of many present exemptions for
sure laminated merchandise made with resins that emit no or
extremely-low quantities of formaldehyde or EPA grants a rulemaking
petition requesting an exemption. The steerage supplies data
on what needs to be included in such a petition.
EPA Released Strategic Plan for 2022-26
On March 28, 2022, EPA launched its strategic plan for FY
2022-FY 2026.28 In the Chemicals sections, EPA said
that it’s going to deal with assembly statutory necessities and obligatory
deadlines and guaranteeing that its chemical opinions are environment friendly,
efficient and clear to EPA’s stakeholders. EPA pledges to
“be certain that selections stemming from chemical opinions are
clear, use strategies and instruments based mostly on the burden of
scientific proof, are in line with the most effective obtainable
scientific data, and are affordable and in line with the
meant use of the data.” EPA listed some concrete
targets that it plans to realize by the top of FY 2026: full at
least eight TSCA danger evaluations for top-precedence substances
yearly inside statutory timelines; provoke all TSCA danger
administration actions inside 45 days of the completion of a last
current chemical danger analysis; and evaluate 90 p.c of previous
danger mitigation necessities for TSCA new chemical substances
selections in comparison with the FY 2021 baseline of none. EPA additionally plans
to replace and strengthen the requirements of the Safer Choice program.
EPA plans to conduct outreach to federal, tribal, state, and native
authorities procurement officers, and institutional and industrial
purchasers to advertise consciousness of this system and to work to make
licensed merchandise extra extensively obtainable to folks of coloration and
low-revenue communities. EPA additionally will replace the Safer Chemical
Ingredients List (reminiscent of within the current announcement concerning the
elimination of some PFAS from the checklist). The launch of the
strategic plan was timed to coincide with the discharge of the
Administration’s finances proposal for FY 2023.29
Although the precise particulars have but to be launched, the finances
would supply $124 million and 449 FTE for TSCA efforts to additional
implementation of and compliance with the 2016 amendments to TSCA.
These assets are meant to assist EPA-initiated chemical danger
evaluations and issuing TSCA danger administration rules in
accordance with the statutory timelines.
EPA Issued Warning on PFAS Contamination and Removed Two
PFAS from Safe Chemical Ingredients List
On March 16, 2022, EPA launched an open letter to the
fluorinated excessive-density polyethylene (HDPE) business relating to the
challenge of PFAS forming and migrating from fluorinated polyolefins
throughout sure kinds of fluorination.30 This
contamination was first famous in HDPE containers for storing and
transporting pesticides. The letter said that EPA considers this
formation of PFAS to be a producing of PFAS and considers such
manufacturing to be a big new use beneath TSCA. EPA’s
letter additionally said that “LCPFAC chemical substances which might be
byproducts of the manufacturing course of for fluorinated polyolefins
don’t meet the necessities of the byproducts exemption at 40 CFR
§ 721.45(e) and are topic to vital new use discover
necessities.” EPA additionally introduced that it will take away two
PFAS from the Safer Chemical Ingredients List. The checklist is
pertinent to the Agency’s “Safer Choice” initiative
by which sure merchandise might be labeled exhibiting their
qualification beneath that program.
EPA Released Draft Collaborative Research Plan for
Modernization of TSCA New Chemicals Program
In early March 2022, EPA launched a draft collaborative analysis
plan for the Agency’s efforts to “modernize” and
“bring innovative science” to the TSCA new chemical compounds
program.31 The plan describes a multiyear program that
can be a partnership between EPA’s Office of Pollution
Prevention and Toxics (OPPT) and EPA’s Office of Research and
Development, together with different federal establishments. The proposed
analysis would deal with 5 areas: (1) Update and Refine Chemical
Categories; (2) Develop and Expand Databases Containing TSCA
Chemical Information; (3) Develop and Refine QSAR (Quantitative
Structure-Activity Relationships) and Predictive Models for
Physical-Chemical Properties, Environmental Fate/Transport, Hazard,
Exposure, and Toxicokinetics; (4) Explore Ways to Integrate and
Apply NAMs (“new approach methodologies” that keep away from use
of intact animals) in New Chemical Assessments; and (5) Develop a
TSCA New Chemicals Decision Support Tool to Modernize the Process
Within OPPT. EPA held public conferences to debate the initiative.
The remark interval on the draft analysis plan closed on May 10,
2022.
State Regulatory & Legislative Action
California
California Starts Rulemaking Process for Listing Tires with
6PPD as Priority Product
On May 20, 2022, the California Department of Toxic Substances
Control (DTSC) initiated a public remark interval on proposed
rules that may checklist motorized vehicle tires containing
N-(1,3-dimethylbutyl)-N’-phenyl-p-phenylenediamine (6PPD) as a
Priority Product within the Safer Consumer Products
program.32 The remark interval is open by July 5,
2022. DTSC decided that there was a possible for people and the
atmosphere to be uncovered to 6PPD and its response product
6PPD-quinone through the manufacturing, regular use and finish-of-life
of motorized vehicle tires and that these exposures may doubtlessly
contribute to or trigger vital or widespread opposed impacts.
If motorized vehicle tires containing 6PPD are listed as a Priority
Product, producers should notify DTSC and resolve whether or not to
carry out an Alternatives Analysis to find out learn how to cut back
exposures to 6PPD within the product.
California Listed Treatments Containing PFAS for Use on
Converted Textiles or Leathers as Priority Product
DTSC introduced on April 1, 2022 that it had finalized a
regulation itemizing therapies containing PFAS to be used on transformed
textiles or leathers as a Priority Product.33 By May 31,
2022, home and international producers of such therapies are
required to submit a Priority Product Notification naming all such
merchandise which might be offered in California. Manufacturers then have the
choice to submit both a Chemical Removal Intent/Confirmation
Notification; Product Removal Intent/Confirmation Notification;
Product-Chemical Replacement Intent/Confirmation Notification; or
Preliminary Alternatives Analysis Report or alternate reporting
choices. If a producer fails to conform, the compliance
obligation could shift to importers or retailers if they’re notified
by DTSC.
Maryland
Maryland Enacts Law Restricting PFAS in Firefighting Foam,
Rugs and Food Packaging
On April 21, 2022, Maryland Governor Larry Hogan signed
laws (SB 273) that restricts PFAS-containing firefighting
foam, rugs and carpets, and meals packaging. The legislation prohibits use,
manufacture, understanding sale, providing on the market, distribution for
sale, or use of Class B firefighting foams containing deliberately
added PFAS on and after January 1, 2024. The legislation supplies for some
exceptions, together with to be used of such foam at airports, ports,
refineries, or chemical crops by September 30, 2024, and at
sure bulk liquid storage or crude petroleum distribution
amenities by December 31, 2027. Where exceptions to the
prohibition apply, the legislation institutes necessities to stop
releases to the atmosphere. The legislation additionally requires written discover
to purchasers on the time of sale for private protecting tools
for firefighting that comprises PFAS and supplies that the
Department of the Environment shall take again PFAS-containing
firefighting foam from fireplace departments and get rid of it correctly.
It additionally prohibits manufacture and understanding sale, providing on the market,
distribution on the market or use of rugs or carpets or meals packages or
meals packaging elements meant for direct meals contact to which
PFAS has been deliberately added. Those prohibitions start on
January 1, 2024. In addition to the restrictions on PFAS-containing
merchandise, the legislation directs the Department of the Environment to
submit a report on the presence of PFAS in waters of the state and
directs the Department of the Environment and the Department of
Health to organize a PFAS Action Plan that identifies methods,
actions and funding alternate options to attenuate environmental publicity
to PFAS, decrease future releases of PFAS, tackle historic
releases of PFAS, assess environmental justice, well being fairness, and
PFAS chemical contamination issues, and educate Maryland
residents about dangers related to PFAS.
Ohio
Ohio Law Bars Use of PFAS-Containing Firefighting Foam for
Training and Testing
A legislation signed by Ohio Governor Mike DeWine in March 2022 (HB 158) prohibits using Class B
firefighting foams containing deliberately added PFAS for coaching
or testing functions, except use for testing functions is required by
legislation and the testing facility has carried out acceptable measures
to stop releases into the atmosphere. The legislation explicitly states
that it doesn’t prohibit manufacture, sale or distribution of
Class B firefighting foams containing deliberately added PFAS or
using such foams in emergency firefighting or fireplace prevention
operations.
Washington
Washington Enacts Law Authorizing Accelerated Action on PFAS
in Certain Products
On March 31, 2022, Governor Jay Inslee signed a invoice (HB 1694) that gives that any product
recognized within the November 2021 PFAS Chemical Action
Plan34 as a supply of or use of PFAS could also be thought of a
“priority consumer product” beneath Washington’s Safer
Products legislation with out the necessity for additional administrative motion.
For such merchandise, the Department of Ecology could decide
regulatory actions and undertake guidelines to implement the regulatory
determinations. The legislation additionally establishes firefighting private
protecting tools as a precedence shopper product and units
deadlines of June 1, 2024 for figuring out an preliminary set of
regulatory actions for all PFAS precedence shopper merchandise
recognized within the new legislation and December 1, 2025 for adoption of
guidelines to implement these regulatory determinations. Another
provision of the legislation offers the Department of Ecology authority to
order producers to submit a discover containing sure
data related to the identification of precedence shopper
merchandise.
Footnotes
Pub. Emp’ees for Env’t Responsibility v.
EPA, No. 1:22-cv-01173-TNM (DDC filed Apr. 28, 2022).
1 Pub. Emp’ees for Env’t Responsibility v.
EPA, No. 1:22-cv-00842 (DDC filed Mar. 30, 2022).
2 Air-Conditioning, Heating, & Refrigeration
Inst. v. EPA, No. 22-1062 (DC Cir. filed Apr. 11, 2022).
3 87 Fed. Reg. 12875 (Mar. 8, 2022).
4 86 Fed. Reg. 894(Jan. 6, 2021).
6 See 5 86 Fed. Reg. 14398 (Mar. 16, 2021).
7 86 Fed. Reg. 51823 (Sept. 17, 2021).
8 See News Release, EPA, New Toxics Release Inventory Data Show Decline in
Releases of Certain Toxic Chemicals (Mar. 3, 2022).
9 Nat’l PFAS Contamination Coal. v. EPA, No.
1:22-cv-00132 (DDC Apr. 5, 2022)
10 See Proposed Consent Decree in Breast Cancer
Prevention Partners, et al. v. EPA et al., No.
4:21-cv-07360-HSG (ND CA), Docket ID EPA-HQ-OGC-2022-0343.
11 See Breast Cancer Prevention Partners v. EPA,
No. 4:21-cv-07360 (ND Cal.).
12 Ctr. for Env’t Health v. Nishida, 2022 US Dist.
LEXIS 83553, No. 4:21-cv-01535 (ND Cal. May 9, 2022).
13 Alaska Cmty. Action on Toxics v. EPA, No.
21-70168 (ninth Cir.); see 86 Fed. Reg. 880 (Jan. 6, 2021).
14 EPA Publishes 2020 Chemical Data Reporting
Information, EPA (final up to date May 12, 2022).
15 Updates to Confidential Status of Chemicals
on the TSCA Inventory, EPA (final up to date Nov. 4, 2021).
16 87 Fed. Reg. 29078 (May 12, 2022).
17 87 Fed. Reg. 27060 (May 6, 2022).
18 87 Fed. Reb. 21706 (Apr. 12, 2022).
19 87 Fed. Reg. 31814 (May 25, 2022).
20 News Release, EPA, 19 EPA Issues Additional Test Orders to Support
Risk Evaluations of Eight Chemicals beneath TSCA (Mar. 24,
2022).
21 87 Fed. Reg. 22208 (Apr. 14, 2022).
22 87 Fed. Reg. 19539 (Apr. 4, 2022).
23 See 22 Pub. L. No. 116-283, §§261-267,
134 Stat. 3388, 3500-02.
24 News Release, EPA, 23 EPA Announces Plan to Protect the Public from
Perchlorate in Drinking Water (Mar. 31, 2022).
25 85 Fed. Reg. 43990 (July 21, 2020).
26 87 Fed. Reg. 17963 (Mar. 29, 2022).
27 News Release, EPA, 27 EPA Releases Petition Guidance for Formaldehyde
Emission Standards (Mar. 31, 2022).
28 See 28 EPA Strategic Plan, EPA (final up to date Apr.
20, 2022).
29 See 29 President’s Budget, The White
House (final visited May 24, 2022).
30 See News Release, EPA, EPA Continues to Take Actions to Address PFAS in
Commerce (Mar. 16, 2022).
31 See EPA, Modernizing the Process and Bringing Innovative
Science to Evaluate New Chemicals Under TSCA (Mar. 9, 2022).
32 Listing Motor Vehicle Tires Containing
N-(1,3-Dimethylbutyl)-N’-phenyl-p-phenylenediamine (6PPD) as a
Priority Product, DTSC (final visited May 24, 2022).
33 See Final Regulation: Listing Treatments
Containing Perfluoroalkyl or Polyfluoroalkyl Substances for Use on
Converted Textiles or Leathers as a Priority Product, DTSC
(final visited May 24, 2022).
34 Wash. Dep’t of Ecol., Pub. 21-04-048, Per- and Polyfluoroalkyl Substances Chemical
Action Plan (Nov. 2021).
The content material of this text is meant to offer a normal
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.
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