News
May 6, 2019

The Chemical Compound—May 2019

Legal Updates on High Priority Chemicals and Important Chemical-Regulatory Developments

This quarterly newsletter provides updates on litigation, regulatory, legislative, and other notable developments involving chemicals of concern to business. Our present focus is on substances which are the subject of regulatory activity or scrutiny by various government agencies and potential litigants. This includes emerging contaminants, such as perfluorinated chemicals (PFCs), hexavalent chromium, trichloroethylene (TCE), 1,2,3-Trichloropropane (TCP), and 1,4-dioxane, as well as substances identified by EPA under the 2016 amendments to the Toxic Substances Control Act (TSCA) for prioritization, risk evaluation, or regulation. We hope you find this publication informative, and we welcome your feedback on chemicals of interest to your organization.

TABLE OF CONTENTS

» Litigation

  • EPA Faces Challenge to Mercury Inventory Rule
  • Environmental Groups Challenge EPA Delay in Implementing Safe Drinking Water Act
  • EPA's Listing of Superfund Site Based on Vapor Intrusion Risk Faces Legal Challenge
  • DC Circuit Partially Grants, Partially Denies Request for Review of TSCA Inventory Rule

» Federal Developments

Regulatory Developments

  • EPA Releases Long-Awaited PFAS Action Plan
  • EPA Issues Draft Interim Recommendations for Addressing PFOA and PFOS in Groundwater
  • EPA Publishes List of 40 Substances for Prioritization
  • Final SNURs Could Renew Challenges to New Chemicals Review Process
  • EPA Publishes Updated TSCA Inventory
  • EPA Proposes Rule Governing Agency's Review of Chemical Identity CBI Claims
  • EPA Publishes Proposal to Amend Chemical Data Reporting Rule
  • Significant New Use Rule Finalized for Asbestos-Containing Products
  • EPA Releases Studies Underlying Pigment Violet 29 Risk Evaluation
  • EPA Publishes Systematic Review Protocol for IRIS Review of Hexavalent Chromium

Legislative Developments

  • Congress Moves to Designate PFAS as Hazardous Substances Under CERCLA

» State Regulatory & Legislative Action

  • Alaska
  • California
  • Massachusetts
  • Minnesota
  • New Jersey
  • New York

Litigation

EPA Faces Challenge to Mercury Inventory Rule

The Natural Resources Defense Council (NRDC) and the state of Vermont (collectively Petitioners) filed a challenge to EPA's Mercury Inventory Rule in the Second Circuit.1 The Mercury Inventory Rule imposes reporting requirements on manufacturers and importers of mercury or mercury-added products, and others who intentionally use mercury in a manufacturing process.2 The Petitioners are challenging EPA's exemption of products that contain mercury-added components, limitation on information required to be reported by manufacturers of more than 2,500 pounds of elemental mercury or 25,000 pounds of mercury compounds, and failure to align reporting deadlines under the Mercury Inventory Rule with reporting deadlines for the Interstate Mercury Education and Reduction Clearinghouse. In its brief, Vermont argues that the exemptions created by the Mercury Inventory Rule will make the Mercury Inventory"substantially less comprehensive than it is required to be" and that allowing the exemptions violates the Administrative Procedure Act because the exemptions would "create new gaps in information in contradiction of Congress's intent to fill those gaps."3 The NRDC argues that the Mercury Inventory resulting from the Mercury Inventory Rule will be "faulty" and will prevent EPA from "making sound recommendations to Congress for how to reduce the public's risks from mercury exposure."4 EPA argues that it has "broad discretion" under TSCA to determine which data to collect pursuant to the Mercury Inventory Rule and that the agency has exercised this discretion reasonably.5 The first reporting deadline under the Mercury Inventory Rule is July 1, 2019.

Environmental Groups Challenge EPA Delay in Implementing Safe Drinking Water Act

Waterkeeper Alliance and several other environmental non-governmental organizations (NGOs) filed suit against EPA in the Southern District of New York in January 2019.6 The complaint alleges that the Safe Drinking Water Act (SDWA) requires EPA to identify and set regulatory limits for contaminants in drinking water. It further alleges that the SDWA requires EPA to: (1) every six years, review drinking water regulations and revise them if necessary; and (2) every five years, identify unregulated drinking water contaminants and determine if regulation is necessary under the SDWA, and that EPA has failed to meet these deadlines. The complaint points to specific chemical substances as examples of EPA's alleged failure to meet the SDWA deadlines. The complaint alleges that EPA failed to review and revise the drinking water standard for hexavalent chromium, instead deferring this review because of the ongoing Integrated Risk Information System (IRIS) assessment of hexavalent chromium. It further alleges that EPA's failure to revise the drinking water standard for TCE from the current maximum contaminant level (MCL) of 5 parts per billion (ppb) to the maximum contaminant level goal of 0 ppb is contrary to the SDWA. The plaintiffs seek declaratory relief, and an order requiring EPA to revise the drinking water standards for substances including TCE, to review and revise the drinking water standard for hexavalent chromium, and to identify unregulated contaminants for which regulation under the SDWA may be necessary. EPA's answer to the complaint is due on May 20, 2019.

EPA's Listing of Superfund Site Based on Vapor Intrusion Risk Faces Legal Challenge

In January 2018, EPA nominated the Rockwell International Wheel & Trim site (Rockwell International Site) in Grenada, Mississippi for the National Priorities List (NPL).7 This nomination was EPA's first exercise of the agency's authority to nominate sites to the NPL based on vapor intrusion risk (even if the site would not otherwise qualify for the NPL).8 This listing is now being challenged by Meritor, Inc. (Meritor), which has been involved in the cleanup of the Rockwell International Site.9 In its lawsuit, Meritor is not challenging the concept of listing a site on the NPL solely on the basis of vapor intrusion risk—rather, Meritor is challenging the application of this concept to the Rockwell International Site.10 Specifically, Meritor argues that EPA failed to consider the sub-slab depressurization system that is already mitigating the vapor intrusion risk at the site. Meritor further argues that EPA inappropriately based the proposed NPL listing on residential risk from vapor intrusion, even though the site is zoned for industrial use. EPA's response to Meritor's opening brief is due in June 2019.

DC Circuit Partially Grants, Partially Denies Request for Review of TSCA Inventory Rule

In an April 26, 2019 decision, the DC Circuit held that the provision in EPA's TSCA Inventory Rule exempting entities from providing substantiation that a confidential chemical identity is not "readily discoverable through reverse engineering" should be revisited, but rejected challenges to the TSCA Inventory Rule on several other bases.11 The Environmental Defense Fund (EDF) filed a petition challenging the TSCA Inventory Rule in September 2017.12 In its petition, EDF challenged the provision of the TSCA Inventory Rule allowing parties to maintain the confidentiality of confidential business information (CBI) even if they did not submit the original confidentiality claim, EPA's exclusion of substantiation questions relating to reverse engineering, and EPA's exemption of chemicals manufactured for export only from the requirements of the rule, among other items.13

The DC Circuit rejected all of EDF's challenges to the TSCA Inventory except for its challenge to EPA's exclusion of substantiation questions relating to reverse engineering. The court noted that EPA had included substantiation questions relating to reverse engineering in the proposed version of the TSCA Inventory Rule, but had omitted the substantiation questions from the final rule. It held that this omission had "effectively excised a statutorily required criterion from the substantiation process" and observed that EPA had offered no explanation for this change. The DC Circuit held this change was arbitrary and capricious, and remanded this portion of the rule for EPA to address its elimination of the reverse engineering substantiation provisions.

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Federal Developments

Regulatory Developments

EPA Releases Long-Awaited PFAS Action Plan

On February 14, 2019, EPA released its long anticipated PFAS Action Plan (the Plan). The Plan outlines a series of short- and long-term regulatory, enforcement, and research priorities for EPA relating to PFAS. The short-term actions outlined in the Plan are expected to be taken within the next two years, whereas longer-term actions are expected to take longer (although interim steps may be taken sooner).

Among the actions EPA announced is the agency's plan to move forward with the process required to establish an MCL for PFOA and PFOS in drinking water. Notably, this announcement does not necessarily mean that EPA will set an MCL for PFOA and PFOS—only that EPA is committing to taking the initial steps in the MCL process under the Safe Drinking Water Act. However, EPA Administrator Andrew Wheeler stated at the press conference announcing the Action Plan that he has "every intention of setting an MCL."14 In the short-term, EPA will provide an opportunity for public comment on information it should consider in deciding whether to establish an MCL.

EPA also announced that it will propose including PFAS in the next Unregulated Contaminant Monitoring Rule (UCMR) cycle (UCMR 5). Under the UCMR, EPA issues a list of no more than 30 unregulated chemicals every five years to be monitored in public water systems. The agency uses this information to determine the prevalence of unregulated substances in public drinking water. EPA previously measured six PFAS substances—PFOA, PFOS, PFBS, PFNA, PFHxS, and PFHpA—under the third UCMR cycle.15 EPA anticipates issuing a proposed UCMR for the fifth cycle in 2020.

As expected, EPA also announced that it has begun the process of listing PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Plan does not provide an estimated date for this listing, though an EPA official has indicated that the proposed listing will take place in 2019.16 As EPA discusses in the Plan, the listing of PFOA and PFOS as CERCLA hazardous substances would provide the federal government with additional authority to respond to releases of these substances and to hold responsible parties liable for such response costs.17 The listing of PFOA and PFOS as CERCLA hazardous substances would also impose notification obligations on entities that release PFOA or PFOS to the environment in quantities in excess of a reportable quantity to be set by EPA.18

The Plan also outlines several steps that EPA intends to take, or is considering taking, to better understand the uses of PFAS in the United States and any potential risks of those uses. Specifically, the Plan provides that EPA is considering listing PFAS on the Toxic Release Inventory (TRI). If PFAS are listed on the TRI, certain industrial facilities would be required to report to EPA annually information about the use of these chemicals and the amounts of these chemicals released to the environment.19 Additionally, EPA announced that, in 2019, it will be finalizing its draft toxicity assessments for PFBS and GenX chemicals,20 and that it would be preparing draft toxicity assessments for five additional PFAS in 2020 (PFBA, PFHxA, PFHxS, PFNA, PFDA).

EPA Issues Draft Interim Recommendations for Addressing PFOA and PFOS in Groundwater

EPA fulfilled one of its PFAS Action Plan promises on April 25, 2019 with the release of its Draft Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctane Sulfonate (Draft Recommendations).21 The Draft Recommendations recommend a screening value of 40 ppt for PFOA and PFOS. Screening values are used to select sites for further evaluation. The Draft Recommendations further suggest setting Preliminary Remediation Goals for PFOA and PFOS of 70 ppt. Preliminary Remediation Goals are used as initial cleanup targets for contaminated sites. Finally, the Draft Recommendations state that EPA "expects that responsible parties" will address levels of PFOA and PFOS over 70 ppt in groundwater used for drinking water. EPA is seeking public comment on the Draft Recommendations through June 10, 2019.

EPA Publishes List of 40 Substances for Prioritization

On March 20, 2019, EPA published a list of 40 chemicals that must be "prioritized" by the end of 2019.22 The announcement marks the beginning of the agency's process for designating the 40 listed chemicals identified as either "high" or "low" priority substances for further EPA scrutiny. At the conclusion of the prioritization process, at least 20 of the substances likely will be designated as high priority.

The list of 20 substances to be reviewed as high priority candidates consists entirely of substances previously identified by EPA in 2014 as "Work Plan" chemicals.23 The inclusion of formaldehyde may raise concerns in certain quarters given the scrutiny that has been given to EPA's previous struggles assessing the potential effects of formaldehyde. Also included in the listing are several chlorinated solvents, phthalates, flame retardants, a fragrance additive, and a polymer precursor. The 20 low priority candidate chemicals were selected from EPA's "Safer Chemicals Ingredients List"—a list of substances previously evaluated and considered to meet EPA's "Safer Choice" criteria for use in certain common product categories, such as cleaning products.24

A high priority designation of a chemical substance immediately commences EPA's formal "risk evaluation" procedures under the amended statute.25 The agency is required to have an additional 20 risk evaluations of high priority substances ongoing by December 22, 2019. If EPA's risk evaluation process concludes that a substance presents an "unreasonable risk" to health or the environment under its "conditions of use," the agency must commence a rulemaking to prohibit or limit the use of the substance under Section 6 of TSCA. The agency's announcement of the list of chemicals to undergo prioritization provides the makers and users of the listed substances an important opportunity to submit relevant information about uses, hazards, and exposure for these chemicals. EPA has opened a docket for each of the 40 chemicals and is accepting public comment through June 19, 2019.

Final SNURs Could Renew Challenges to New Chemicals Review Process

On April 5, 2019, EPA finalized significant new use rules (SNURs) for 13 chemical substances determined by EPA not to present an unreasonable risk under the conditions of use described in premanufacture notices (PMNs).26 The SNURs finalized by EPA on April 5 were initially proposed on October 16, 2018. As explained in further detail below, these SNURs are likely to invite a legal challenge from environmental groups to EPA's new chemicals review process.

EPA's issuance of these SNURs is notable because a vast majority of SNURs promulgated by EPA are for substances for which EPA previously issued a TSCA Section 5(e) consent order. Unlike substances covered by a TSCA Section 5(e) consent order, EPA had made a determination under TSCA Section 5 that these 13 chemical substances are "not likely to present an unreasonable risk" under the conditions of use described in the PMNs.27 Pursuant to TSCA, when reviewing a notification for a new chemical substance, EPA is required to consider both intended conditions of use (i.e., those uses described in the premanufacture notice) and reasonably foreseen conditions of use.28 In the course of reviewing the PMNs for these 13 substances, EPA was able to make a determination that the intended conditions of use are not likely to present an unreasonable risk to human health or the environment.29 EPA could not reach a similar conclusion for reasonably foreseen uses that were not described in the PMN. Therefore, the agency decided to issue a SNUR to address its potential concerns about risks to human health or the environment from such reasonably foreseen uses.

Thus, EPA's determination that these 13 chemical substances are "not likely to present an unreasonable risk" is based on the premise that the SNURs will require notification to EPA of any significant new uses (including reasonably foreseen uses) of these chemical substances. This approach is likely to generate controversy given that certain members of the environmental NGO community have argued that EPA is required to prohibit or limit reasonably foreseeable conditions of use that present possible concerns using Section 5(e) or 5(f) Orders. In fact, the environmental NGO community challenged EPA's "New Chemicals Decision-Making Framework" (outlining EPA's approach to SNURs) after its release in November 2017,30 but voluntarily dismissed the challenge based on EPA statements suggesting the agency would not be following the New Chemicals Decision-Making Framework as it related to SNURs for substances not covered by TSCA Section 5(e) consent orders until after public comments received on the Framework had been fully reviewed and considered.31 It is possible that the issuance of these SNURs could invite new legal challenges.

EPA Publishes Updated TSCA Inventory

In February 2019, EPA released an updated version of the TSCA Inventory including chemical substances reported by manufacturers and processors by their respective reporting deadlines in 2018.32The updated TSCA Inventory (confidential and non-confidential) includes 40,655 active chemical substances and 45,573 inactive chemical substances.

The "active" status of the 40,655 chemical substances on the TSCA Inventory was legally effective immediately upon EPA's release of the Inventory on February 19, 2019. The "inactive" status of the 45,573 inactive chemical substances will not become legally effective until 90 days after EPA's designation of these substances as inactive—May 20, 2019.33 Thus, prior to May 20, 2019, manufacturers and processors of chemical substances that are not active on the February 2019 TSCA Inventory may file a Notice of Activity (NOA) Form B for any chemical substance that they are currently manufacturing or processing, or anticipate manufacturing or processing within 90 days of submission, to activate the substance.34

Manufacturers and processors should review the TSCA Inventory to ensure that chemicals of importance to them are listed as active. If a chemical substance is not listed as active, manufacturers and processors should prepare an NOA Form B to be submitted by May 20, 2019. This will ensure that the chemicals remain active. EPA held a webinar on the NOA Form B process in March 2019. Materials from that webinar can be found here.

EPA Proposes Rule Governing Agency's Review of Chemical Identity CBI Claims

On April 23, 2019, EPA proposed a rule to establish the agency's procedures for reviewing Confidential Business Information claims for the specific chemical identity of substances reported as active under the TSCA Inventory Rule.35 EPA is required under TSCA Section 8 to promulgate a rule establishing this process by February 2020.36

Under the proposed rule, manufacturers and processors who filed an NOA Form A pursuant to the TSCA Inventory Rule and who made CBI claims with respect to the identity of specific chemicals will be required to submit to EPA substantiation for those claims within 90 days of the publication of the final rule governing the review of these claims (substantiation deadline).37 Manufacturers and processors who filed NOA Form As would be exempt from this requirement if: (1) they voluntarily provided substantiation for their chemical identity CBI claims at the time they submitted the NOA Form As; or (2) they provided substantiation for a chemical identity CBI claim in another context (for example in a CDR filing) within the 5-year period prior to the substantiation deadline.38

Manufacturers and processors subject to the substantiation requirements of this proposed rule will have to provide information including the substantial harmful effects that will likely result if the information is not maintained as confidential, the controls that the company has put in place to maintain confidentiality, and the length of time for which the claim of confidentiality is being made (up to 10 years).39 Manufacturers and processors who are exempt from re-substantiating their claims on the basis that they have provided substantiation for a chemical identity CBI claim in another context within the 5-year period ending on the substantiation deadline must nonetheless submit to EPA on or before the substantiation deadline the following information about the submission containing the relevant substantiation: (1) submission date; (2) submission type; (3) submission identifier or case number.

Under the proposed rule, if manufacturers and processors do not submit substantiation information or information about substantiation in prior submissions by the substantiation deadline, EPA will treat their chemical identities as not subject to CBI claims and the chemical identities will be made public without further notice to the manufacturer or processor.40 EPA must complete review of all chemical identity CBI claims by February 2024.41 EPA intends to begin review of two groups of CBI claims prior to the publication of the final version of this rule: (1) CBI chemical identity claims for which substantiation was voluntarily provided; (2) CBI chemical identity claims "that appear to be clearly not entitled to protection from disclosure based upon other information available to the agency."42 EPA is seeking public comment on the proposed rule until June 24, 2019.

EPA Publishes Proposal to Amend Chemical Data Reporting Rule

EPA is proposing amendments to the Chemical Data Reporting (CDR) rule intended to ensure that the rule complies with the requirements of the amended TSCA, and to reduce the burden of reporting under the rule.43 Among other changes, the proposal would: (1) require upfront substantiation of CBI claims and limit data elements for which CBI claims could be made; (2) require reporting about the percentage of the total production volume of a chemical substance that is a byproduct; (3) add exemptions for certain byproducts (when byproducts are recycled or reprocessed); and (4) revise the definition of small entities that are exempt from the requirements of the rule.44 These amendments are in part the result of a mandate in Section 8 of the amended TSCA requiring EPA to enter into negotiated rulemaking to establish regulations that limit reporting requirements for manufacturers of inorganic byproducts when the byproducts are subsequently recycled, reused, or reprocessed. EPA must publish a final rule resulting from this negotiated rulemaking by December 2019.45 Interested parties may submit comments on the proposed rule by June 24, 2019.

Significant New Use Rule Finalized for Asbestos-Containing Products

EPA has finalized a significant new use rule for asbestos-containing products, addressing what EPA referred to as a "a 30-year-old loophole that allowed old asbestos uses and products to come back to the market without any reviews or restrictions from EPA."46 The rule designates as significant new uses asbestos in products that are not currently on the market.47 Entities that wish to commence manufacturing, importing, or processing asbestos (including as part of an article or a component of an article) will need to notify EPA (i.e., submit a significant new use notice, or SNUN) 90 days before commencing any of these designated activities. EPA will then review any significant new use notices received and determine whether to prohibit or restrict particular uses. Uses designated as significant new uses under the final rule include asbestos-containing roof coatings and felt, extruded sealant tape, cement products, reinforced plastics, and missile liners.

EPA Releases Studies Underlying Pigment Violet 29 Risk Evaluation

EPA has released the 24 studies relied upon by the agency in the draft risk evaluation for Pigment Violet 29.48 EPA's draft risk evaluation for Pigment Violet 29 was released in November 2018, with the agency concluding that Pigment Violet 29 does not pose an unreasonable risk to human health or the environment under the conditions of use evaluated.49 The draft risk evaluation for Pigment Violet 29 is the first of ten draft risk evaluations that EPA must finalize by December 2019.50 EPA officials have indicated that the remaining nine draft risk evaluations are expected to be released by the end of this summer.51

The release of these studies had been requested by Earthjustice (via a Freedom of Information Act request)52 and by Democratic members of the House of Representatives Energy & Commerce Committee.53 The studies had previously been claimed as confidential business information (CBI), but many of the CBI claims have been dropped.54 Remaining claims are protected by redactions in the released studies. EPA also reopened the public comment period for the draft risk evaluation following the release of the studies, allowing interested parties to submit comments through April 17, 2019.55 It remains to be seen whether the release of these health studies will set a precedent for the supporting information that will be published alongside the remaining nine of the first ten risk evaluations.

EPA Publishes Systematic Review Protocol for IRIS Review of Hexavalent Chromium

In March 2019, EPA published its Systematic Review Protocol for the IRIS assessment of hexavalent chromium.56 The protocol describes EPA's approach to the review of existing scientific literature on hexavalent chromium, criteria for which studies will be included or excluded from consideration in the IRIS assessment, and describes how EPA will conduct the assessment. The IRIS assessment of hexavalent chromium began in 2014 with the release of problem formulation materials for the assessment, but no further action was taken prior to the release of the Systematic Review Protocol.57This IRIS assessment is intended to update a 1998 IRIS assessment of hexavalent chromium. EPA accepted public comment on the Systematic Review Protocol through April 29, 2019.

Legislative Developments

Congress Moves to Designate PFAS as Hazardous Substances Under CERCLA

The US House of Representatives and US Senate are considering legislation that would require EPA to list PFAS as a class of chemicals as hazardous substances under the CERCLA. H.R. 535 and S. 638, both titled "PFAS Action Act of 2019," would require EPA to designate PFAS chemicals as hazardous substances under CERCLA within one year of the date of enactment of the legislation.58The House legislation was introduced prior to EPA's release of its PFAS Action Plan, which announced that EPA had begun the process to list PFOA and PFOS as hazardous substances under CERCLA, but the Senate legislation was announced after the PFAS Action Plan was released.59

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State Regulatory & Legislative Action

Alaska

The Alaska Department of Environmental Conservation has put proposed soil and groundwater cleanup standards for six PFAS chemicals on hold following the release of EPA's PFAS Action Plan.60In the fall of 2018, Alaska proposed the use of EPA's drinking water health advisory level for PFOA and PFOS—70 ppt—as the cleanup standard for PFOA, PFOS, PFNA, PFHxS, and PFHpA in soil and groundwater in Alaska.61

California

The California legislature is considering legislation that could significantly change the state's Safer Consumer Products Program. The legislation, S.B. 392, was introduced by Senator Ben Allen, Chair of the California Senate's Environmental Quality Committee. The legislation proposes to expand the list of "candidate chemicals" under the Safer Consumer Products Program to include additional fragrance allergens, asthmagens, and endocrine disrupting chemicals, among others. Products containing chemicals on the expanded list of candidate chemicals could become Priority Products subject to regulation under the Safer Consumer Products Program. The legislation also proposes to expand the Department of Toxic Substances' (DTSC) power to collect data about chemicals in consumer products from the manufacturers of those products, and to allow DTSC to impose hefty fines if data are not provided. Finally, the legislation proposes to allow DTSC to rely on existing alternatives analyses for a chemical of concern rather than conducting its own alternatives analysis.62

Massachusetts

Conservation Law Foundation Massachusetts and Toxics Action Center submitted a petition in October 2018 calling upon the Massachusetts Department of Environmental Protection (MassDEP) to establish an MCL for PFAS.63 In late January, MassDEP responded to the petition, announcing that the department would initiate the process to develop an MCL. MassDEP has convened a stakeholders group, inviting representatives from groups such as Toxics Action Center, the Massachusetts Department of Public Health, and the American Chemistry Council.64 The first stakeholder meeting took place on April 11, 2019.65

MassDEP has also proposed cleanup standards for PFOA and PFOS in soil and groundwater.66 For groundwater in possible areas of drinking water, MassDEP has proposed the same standard for PFAS (a sum of the concentrations of PFAS chemicals), PFOA, PFOS, PFHpA, PFHxS, PFHpA, and PFDA: 0.02 parts per billion. For all other groundwater, MassDEP has proposed standards ranging from 500 parts per billion (PFHxS and PFOS) to 40,000 parts per billion (PFOA, PFDA, PFHpA, and PFNA). For soil in areas where groundwater may be used for drinking water, MassDEP is proposing a standard of 0.0002 parts per million for PFAS as a class of chemicals and for each of the listed PFAS chemicals individually. For other soil, MassDEP is proposing a standard of 0.3 parts per million.

Minnesota

The Minnesota legislature is considering legislation that would prohibit the use of TCE as a vapor degreaser, refrigerant, extraction solvent, or intermediate chemical in Minnesota.67 It also prohibits the replacement of TCE with any chemical substance designated as a "chemical of high concern" under state law. The Minnesota House of Representatives passed this legislation on April 1, and it is currently under consideration by the Minnesota Senate. If the legislation becomes law, the prohibition will take effect on the day following enactment.

New Jersey

On April 1, 2019, New Jersey announced that it was proposing MCLs for PFOA and PFOS is drinking water. The New Jersey Department of Environmental Protection (NJDEP) announced that it was proposing an MCL of 14 parts per trillion for PFOA and 13 parts per trillion for PFOS in drinking water.68 The publication of the proposal in the New Jersey Register began a 60-day public comment period, which will end on May 31, 2019. NJDEP will hold a public hearing on the proposal on May 15, 2019. Additionally, on March 13, 2019, New Jersey established interim groundwater quality standards for PFOA and PFOS. The interim groundwater quality standard for both PFOA and PFOS is 10 parts per trillion.69

New York

The New York State legislature is considering multiple pieces of legislation that would restrict or ban the use of 1,4 dioxane in the state:

Senate Bill 1184 would prohibit the manufacturing, processing, or distribution in commerce of any product or product component containing 1,4 dioxane.70 Under the proposed legislation, each product manufactured, processed, or distributed in commerce in violation of the statute would constitute a separate violation. If enacted, the legislation would take effect 120 days after the date of enactment. This legislation has been referred to the Committee on Environmental Conservation.

Assembly Bill 6295 would prohibit the sale of 1,4 dioxane-containing household cleaning products and cosmetic products in New York State.71 Manufacturers of cosmetic products could seek two one-year waivers of this prohibition if they could demonstrate that there is no available alternative to 1,4 dioxane. If enacted, this legislation would take effect on December 31, 2021. This legislation has been referred to the Committee on Ways and Means.

Senate Bill 0099 would also prohibit the sale of 1,4 dioxane-containing cleaning products and cosmetic products in New York State.72 It would also require that manufacturers replace 1,4 dioxane with the "least toxic alternative" chemical. The New York State Department of Environmental Conservation would have to certify that replacement chemicals for cleaning products and cosmetics are the "least toxic alternatives" available. Manufacturers of these products could seek two one-year waivers of this prohibition if they could prove that there is no available alternative to 1,4 dioxane (including providing an alternatives assessment and an exposure assessment indicating that use of the product would not be not expected to cause exposure to 1,4 dioxane). If enacted, this legislation would take effect on December 31, 2020. This legislation has been referred to the Committee on Environmental Conservation.

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*Camille Heyboer also contributed to this newsletter.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. Petition for Review, Nat. Res. Def. Council v. U.S. Envtl. Protection Agency, No. 18-2121 (2d Cir. July 19, 2018).

  2. 40 C.F.R. Part 713.

  3. Brief of Petitioner State of Vermont, Nat. Res. Def. Council v. U.S. Envtl. Protection Agency, No. 18-2121 (2d Cir. Dec. 7, 2018).

  4. Opening Brief of Petitioner Natural Resources Defense Council, Nat. Res. Def. Council v. U.S. Envtl. Protection Agency, No. 18-2121 (2d Cir. Dec. 7, 2018).

  5. Brief of U.S. Environmental Protection Agency, Nat. Res. Def. Council v. U.S. Envtl. Protection Agency, No. 18-2121 (2d Cir. Apr. 7, 2018).

  6. Complaint, Waterkeeper Alliance, Inc. v. U.S. Envtl. Protection Agency, No. 1:19-cv-00899 (S.D.N.Y. Jan. 30, 2019).

  7. National Priorities List, 83 Fed. Reg. 2,576 (Jan. 18, 2018). For more information, please see the April 2018 edition of The Chemical Compound.

  8. Addition of a Subsurface Intrusion Component to the Hazard Ranking System, 82 Fed. Reg. 2,760 (Jan. 9, 2017).

  9. Meritor, Inc. v. EPA, No. 18-01325 (D.C. Cir.).

  10. Initial Opening Brief for Petitioner, Meritor, Inc. v. EPA, No. 18-1325 (Apr. 1, 2019).

  11. Envtl. Def. Fund v. U.S. Envtl. Protection Agency, No. 17-1201 (Apr. 26, 2019).

  12. Petition for Review, Envtl. Def. Fund v. EPA, No. 17-1201 (D.C. Cir. Sept. 1, 2017).

  13. Id. For additional information about EDF's challenge to the TSCA Inventory Rule, please see the April 2018 edition of The Chemical Compound.

  14. Envtl. Protection Agency, EPA Acting Administrator Announces First-Ever Comprehensive Nationwide PFAS Action Plan, YouTube (Feb. 14, 2019).

  15. Revisions to the Unregulated Contaminant Monitoring Regulation (UCMR 3) for Public Water Systems, 77 Fed. Reg. 26,072, 26,075 (May 2, 2012). EPA collected data about the prevalence of these substances from 2013-2015.

  16. Amena H. Saiyid, EPA to List Nonstick Toxics as Hazardous Substances This Year, Bloomberg Env't (Apr. 9, 2019).

  17. 42 U.S.C. § 9604.

  18. 42 U.S.C. § 9603.

  19. 42 U.S.C. § 11023(g)(C).

  20. U.S. Envtl. Protection Agency, EPA-823-P-18-001, Human Health Toxicity Values for Hexafluoropropylene Oxide (HFPO) Dimer Acid and its Ammonium Salt (CASRN 13252-13-6 and CASRN 62037-80-3) (Nov. 2018); U.S. Envtl. Protection Agency, Human Health Toxicity Values for Perfluorobutane Sulfanic Acid (CASRN 375-73-5) and Related Compound Potassium Perfluorobutane Sulfonate (CASRN 29420-49-3) (Nov. 2018).

  21. Draft Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctane Sulfonate, U.S. Envtl. Protection Agency (Apr. 2019).

  22. List of Chemicals Undergoing Prioritization, U.S. Envtl. Protection Agency (last updated Mar. 20, 2019). For more information, please see our March 21, 2019 Advisory.

  23. U.S. Envtl. Protection Agency, TSCA Work Plan for Chemical Assessments: 2014 Update (Oct. 2014).

  24. Safer Chemicals Ingredients List, Envtl. Protection Agency (last updated Feb. 14, 2019).

  25. 40 CFR § 702.17.

  26. Significant New Use Rules on Certain Chemical Substances, 84 Fed. Reg. 13,531 (Apr. 5, 2019).

  27. Chemicals Determined Not Likely to Present an Unreasonable Risk Following Pre-Manufacture Notification Review, EPA (last updated Apr. 16, 2019).

  28. 15 U.S.C. § 2602(4).

  29. See, e.g., EPA, TSCA Section 5(a)(3) Determination for Premanufacture Notice (PMN) P-16-0581 (Oct. 9, 2018).

  30. Petition for Review of Agency Order, Nat. Res. Def. Council v. U.S. Envtl. Protection Agency, No. 18-25 (2d Cir. Jan. 5, 2018).

  31. Motion to Voluntarily Dismiss Petition for Review, Nat. Res. Def. Council v. U.S. Envtl. Protection Agency, No. 18-25 (2d Cir. Aug. 27, 2018).

  32. Press Release, U.S. Envtl. Protection Agency, EPA Releases First Major Update to Chemicals List in 40 Years (Feb. 19, 2019).

  33. 40 C.F.R. §710.23.

  34. 40 C.F.R. § 710.30(B)(2).

  35. Procedures for Review of Confidential Business Information Claims for the Identity of Chemicals on the Toxic Substances Control Act Inventory, 84 Fed. Reg. 16,826 (Apr. 23, 2019).

  36. 15 U.S.C. § 2607(b)(4)(C).

  37. 84 Fed. Reg. at 16,833.

  38. Id.

  39. Id. at 16,829.

  40. Id. at 16,289.

  41. 15 U.S.C. § 2607(b)(4)(E)(i).

  42. 84 Fed. Reg. at 16,830.

  43. TSCA Chemical Data Reporting Revisions and Small Manufacturer Definition Update for Reporting and Recordkeeping Requirements Under TSCA Section 8(a), (Apr. 25, 2019).

  44. Id. See also Press Release, U.S. Envtl. Protection Agency, EPA Proposes to Reduce TSCA Reporting Burden; Align Reporting with Amended TSCA (Apr. 12, 2019).

  45. Id.

  46. Press Release, U.S. Envtl. Protection Agency, EPA Strengthens Regulations of Asbestos to Close Loophole and Protect Consumers (Apr. 17, 2019).

  47. Restrictions on Discontinued Uses of Asbestos; Significant New Use Rule, 80 Fed. Reg. 17,345 (Apr. 25, 2019).

  48. Materials Supporting the Colour Index (C.I.) Pigment Violet 29 Risk Evaluation; Notice of Availability and Opportunity to Comment, 84 Fed. Reg. 16,011 (Apr. 17, 2019). For more information about the draft risk evaluation for Pigment Violet 29, please see the January 2019 edition of The Chemical Compound.

  49. Draft TSCA Risk Evaluation for Colour Index (C.I.) Pigment Violet 29; Notice of Availability (PV29); Notice of Availability, 83 Fed. Reg. 57,473 (Nov. 15, 2018).

  50. 15 U.S.C. § 2605(b)(4)(G).

  51. Pat Rizzuto, EPA Chemicals Office Delays Draft Risk Review to End of Summer, Bloomberg Law (Mar. 7. 2019).

  52. Letter from Jonathan Kalmuss-Katz, Staff Attorney, Earthjustice, to Freedom of Information Act Office, U.S. Envtl. Protection Agency (Dec. 4, 2018).

  53. Press Release, House Comm. on Energy & Commerce, E&C Leaders Demand Health and Safety Studies from EPA (Mar. 21, 2019).

  54. Press Release, U.S. Envtl. Protection Agency, EPA Makes Studies on PV29 Publicly Available (Mar. 22, 2019).

  55. 84 Fed. Reg. 16,011.

  56. Availability of the Systematic Review Protocol for the Hexavalent Chromium (Cr(VI)) Integrated Risk Information System (IRIS) Assessment, 84 Fed. Reg. 9,516 (Mar. 15, 2019).

  57. Chromium (VI), Envtl. Protection Agency (last updated Apr. 2019).

  58. H.R. 535, 119th Cong. (2019); S. 638, 119th Cong. (2019).

  59. For more information about EPA's announcement of the forthcoming CERCLA listing of PFOA and PFOS, please see supra "EPA Releases Long-Awaited PFAS Action Plan."

  60. Sam Friedman, Alaska DEC Chief Delays Work on PFAS Contamination Regulation, Daily News-Miner (Apr. 10, 2019).

  61. Press Release, Alaska Dep't of Envtl. Conservation, DEC Takes Action on PFAS Contamination: Seeks Public Comment on Proposed Cleanup Levels for Fire-Fighting Chemicals in Drinking Water (Oct. 4, 2018).

  62. For additional information about S.B. 392, please see our Advisory from March 2019.

  63. Letter from Martin Suuberg, Mass. Dep't of Envtl. Prot. to Heather A. Govern, Conservation Law Found. Mass. & Sylvia Broude, Toxics Action Ctr. (Jan. 28, 2019).

  64. Drinking Water PFAS MCL Stakeholder Group: Invited Organizations, Mass. Dep't of Envtl. Protection (Apr. 10, 2019).

  65. Development of a PFAS Drinking Water Standard, Mass. Dep't of Envtl. Prot. (accessed Apr. 22, 2019).

  66. PFAS-Related Revisions to the Massachusetts Contingency Plan, Mass. Dep't of Envtl. Protection (Apr. 19, 2019).

  67. HF 2276, 91st Leg. (Minn. 2019).

  68. Press Release, New Jersey Dep't of Envtl. Protection, Affirming National Leadership Role, New Jersey Proposes Stringent Drinking Water Standards for PFOA and PFOS (Apr. 1, 2019).

  69. Contaminants of Emerging Concern, New Jersey Dep't of Envtl. Protection (last updated Mar. 13, 2019).

  70. S01184 (N.Y. 2019). This bill also restricts the manufacturing, processing, and distribution in commerce of products containing triclosan, isophorone, and cyclohexanone. There is a companion bill in the New York State Assembly (A05966).

  71. A06295 (N.Y. 2019). There is a companion bill in the New York State Senate (S04389).

  72. S00099 (N.Y. 2019). There is a companion bill in the New York State Assembly (A04459).

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