New Online Tools Provide Communities with Information on Environmental Enforcement and Compliance—published October 5, 2022, by Lynn L. Bergeson and Carla N. Hutton
The U.S. Environmental Protection Agency (EPA) announced on October 3, 2022, two new online tools available to the public that provide additional information on environmental enforcement and compliance in their communities. EPA states that through improved transparency, advanced technologies, and community participation, these tools empower the public to help EPA ensure compliance nationwide and protect public health and the environment.
California Restricts PFAS in Clothing and Cosmetics; Governor Vetoes PFAS Reporting Bill—published October 6, 2022, by Allyn L. Stern and Ryan J. Carra
On September 29, 2022, California Governor Newsom signed California AB 1817, which bans the manufacture and sale of clothing and textile items containing per- and polyfluoroalkyl substances (PFAS), and AB 2771, which restricts PFAS in cosmetics. Both prohibitions are implemented beginning January 1, 2025.
On the same day, Governor Newsom vetoed AB 2247, which would have required product manufacturers to report to the state by July 1, 2026, if their products contained intentionally added PFAS. Any products sold in California that were intended for personal, residential, commercial, or industrial use, or for use in making other products, would have been in scope.
EPA Announces Initiative to Bring to Market New Chemicals Used in Electric Vehicle, Semiconductor, and Clean Energy Sectors—published October 11, 2022, by Lynn L. Bergeson, Richard E. Engler, and Carla N. Hutton
EPA announced on October 5, 2022, a new effort under the Toxic Substances Control Act (TSCA) to implement a streamlined and more efficient process under the New Chemicals Program to assess risk and apply mitigation measures, as appropriate, for new chemicals with applications in batteries, electric vehicles, semiconductors, and renewable energy generation. The new process is for mixed metal oxides (MMO), including new and modified cathode active materials (CAM). EPA states that MMOs are innovative chemistries and have numerous electrical applications in batteries, as well as use as catalysts, adsorbents, and in ceramics. According to EPA, MMOs, including CAMs, are notably a key component in lithium-ion batteries used in electric vehicles, “a growing and important industry.” New MMOs can also be used for semiconductors, and renewable energy generation and storage, such as solar cells and wind power turbines. They typically consist of lithium, nickel, cobalt, and other metals, and they are the key material used in the production of the cathode in battery cells, which are subsequently assembled into a battery.
ECHA Announces Receipt of Restriction Proposals for Bisphenols and Creosote—published October 14, 2022, by Lynn L. Bergeson and Carla N. Hutton
The European Chemicals Agency (ECHA) has received restriction proposals for:
CSB Recommends EPA Initiate Prioritization under TSCA to Evaluate Whether Hydrofluoric Acid Is a High-Priority Substance—published October 14, 2022, by Lynn L. Bergeson, Richard E. Engler, and Carla N. Hutton
On October 11, 2022, the U.S. Chemical Safety Board (CSB) released its final investigative report into “a massive fire and explosions” at the Philadelphia Energy Solutions Refinery in Philadelphia, Pennsylvania, that occurred in June 2019. According to CSB, the incident occurred when a corroded pipe elbow ruptured, releasing process fluid into the refinery’s hydrofluoric acid (HF) alkylation unit. CSB states that over 5,000 pounds of “highly toxic” HF were released, “a 38,000-pound vessel fragment launched off-site and landed on the other side of the Schuylkill River, and an estimated property damage loss of $750 million resulted.”
Petition Seeks Revocation of Approximately 600 PFAS LVEs and LoREXs—published October 17, 2022, by Lynn L. Bergeson and Carla N. Hutton
On October 13, 2022, Earthjustice, on behalf of a coalition of environmental organizations and community advocates, petitioned EPA to revoke the approval of approximately 600 PFAS that were granted through low volume exemptions (LVE) or low release and low exposure exemptions (LoREX) to the premanufacture notice (PMN) requirements of TSCA. In its October 13, 2022, press release, Earthjustice states that these exemptions “allow EPA to approve chemicals through lax safety reviews only if it ‘will not present an unreasonable risk’ to humans or the environment.” According to Earthjustice, PFAS do not meet that standard, and EPA must revoke previously granted LVEs and LoREXs for PFAS. The petition follows an April 27, 2021, petition filed by Earthjustice on behalf of many of the same petitioners, and it incorporates the 2021 petition by reference.
Update: Maine Adopts Broad Ban of PFAS-Containing Products—published October 17, 2022, by Ryan J. Carra, Nessa Horewitch Coppinger, Graham C. Zorn, Deepti B. Gage, and Sarah A. Kettenmann
Maine’s Department of Environmental Protection (DEP) issued a revised “Second Concept Draft” of proposed regulations for intentionally added PFAS in products in Maine, and has announced that it will hold another virtual meeting to discuss the revisions. The second concept draft rule revises the original concept draft, based on comments that DEP received from stakeholders, and introduces a number of definitions, fee terms, and other provisions. DEP seeks comments during the virtual meeting on a number of edits, including the use of Global Product Classification brick codes for reporting rather than the originally proposed UPC codes, a flat fee for a company’s first three notifications, and a reduced fee for subsequent notifications; and certain definitions.
The second concept draft modifies or introduces a number of definitions, including for “currently unavoidable use.” DEP expects to undertake a major––and separate––substantive rulemaking in the summer of 2023 to address the designation of products or product categories as currently unavoidable uses. It explained that it has added a definition of this term in the second concept draft to provide “clarity” to stakeholders regarding how it would evaluate this designation. The draft introduces a sweeping definition for “Essential for Health, Safety, or the Functioning of Society” and also redefines “carpet” or “rug” as products that, if containing PFAS, would be prohibited from sale starting in 2023.
EPA’s Proposed Hazardous Substances Designation for PFOA and PFOS—published October 20, 2022, by Kristin R. Robrock, Brian D. Drollette, Bryan S. Pitts, Tarek Saba, and Kirk O'Reilly
EPA has proposed designating two specific PFAS—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as CERCLA or Superfund. This proposed rule has important implications for environmental site investigations and cleanups as well as cost recovery.
The key impact of this proposed designation is that EPA and state agencies would be able to respond to PFOA and PFOS releases under CERCLA without the current requirement for an imminent and substantial danger finding. PFOA and PFOS investigations and remediation, which to date had often been voluntary or enacted under site-specific state requests, would be required of potentially responsible parties. Many states have remediation programs that incorporate federal hazardous substances lists, so the reach of EPA’s action would extend beyond CERCLA sites.
GAO Recommends EPA Use New Data to Analyze the Demographics of Communities with PFAS in Their Drinking Water—published October 20, 2022, by Lynn L. Bergeson and Carla N. Hutton
The U.S. Government Accountability Office (GAO) released a report on October 19, 2022, entitled “Persistent Chemicals: EPA Should Use New Data to Analyze the Demographics of Communities with PFAS in Their Drinking Water.” The congressional requesters asked GAO to examine PFAS contamination in drinking water and related state actions. GAO’s report examines what recent data from selected states show about the occurrence of PFAS in drinking water, the demographic characteristics of communities in selected states with and without PFAS in their drinking water, and factors that influenced states’ decisions to test and develop standards or guidance for PFAS in drinking water. GAO states that recent drinking water data from six selected states show that at least 18 percent of the states’ 5,300 total water systems had at least two PFAS––PFOA and PFOS––above EPA’s 2022 interim revised health advisory levels. GAO found that 978 water systems had the two PFAS at or above EPA’s minimum reporting level of 4 parts per trillion (ppt), the lowest level reliably quantified by most laboratories, and above EPA’s health advisory levels. The demographic characteristics of communities with PFAS in their drinking water varied in the states GAO examined. GAO states that according to EPA officials, EPA does not currently have information to determine the extent to which disadvantaged communities are exposed to PFAS in drinking water nationally; EPA plans to collect comprehensive nationwide data, however.
