News
July 1, 2019

The Chemical Compound—July 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

  • Ninth Circuit Hears Oral Argument, Orders Additional Briefing in Review of TSCA
  • EPA Responds to DC Circuit Remand of TSCA Inventory Rule CBI Substantiation Provision
  • Environmental Group Sues Pennsylvania for Seeking Regulation of PFAS in Drinking Water
  • Trade Group and Labor and Environmental Organizations Filed Lawsuits Challenging Methylene Chloride Rule

» Federal Developments

Regulatory Developments

  • EPA Releases Draft PBT Risk Management Rules
  • Executive Order Lays Groundwork for Easing Development and Increasing Acceptance of Agricultural Biotechnology Products
  • FDA Announces Survey Findings on PFAS in Food
  • EPA Received Manufacturer Requests for Risk Evaluations of Two Phthalates
  • Two More TSCA Draft Risk Evaluations Released to Public Comment
  • EPA Releases Spring 2019 Unified Regulatory Agenda
  • Inactive Status for Chemical Substances Becomes Official on August 5
  • EPA Released Draft of Revised Method for Assessing Pesticide Risks to Endangered Species
  • EPA Denied Petition by State Attorneys General for Additional Reporting on Asbestos Use

Legislative Developments

  • Congress Takes Aim at PFAS Chemicals, PFAS Amendments Show Up in Defense Bills

» State Regulatory & Legislative Action

  • Alabama
  • Arizona
  • California
  • Colorado
  • Maine
  • Minnesota
  • New York
  • Vermont

Litigation

Ninth Circuit Hears Oral Argument, Orders Additional Briefing in Review of TSCA Rules

The Ninth Circuit heard oral argument on May 16, 2019 in its review of two TSCA framework rules. Non-governmental organizations including Safer Chemicals Healthy Families, Natural Resources Defense Council, and Sierra Club (collectively, "petitioners") filed lawsuits in August 2017 challenging the final TSCA Risk Prioritization and Risk Evaluation Rules.1 The Risk Prioritization Rule establishes the process by which EPA will designate chemical substances as high priority or low priority for risk evaluations.2 The Risk Evaluation Rule establishes the process by which EPA will evaluate the risks of chemical substances.3 Both of these rules were finalized in July 2017 and have already been implemented by EPA, which is in the process of conducting risk evaluations for 10 chemical substances and has identified 40 chemical substances as candidates for prioritization.

A few days before oral arguments, the Ninth Circuit issued an order directing the parties to be prepared to discuss standing. Both parties also submitted information on standing to the court in the days leading up to oral arguments. Unsurprisingly, many questions during oral arguments focused on the petitioners' standing to bring this lawsuit. The court appeared to question petitioners' standing, with the exception perhaps of petitioners' ability to challenge EPA's determination in the risk evaluation rule that it is not required to consider legacy uses in its evaluation of the risk posed by a chemical substance.4 Following oral arguments, the Ninth Circuit requested supplemental briefing on the justiciability of the petition. The supplemental briefing was to be completed on June 28.

EPA Responds to DC Circuit Remand of TSCA Inventory Rule CBI Substantiation Provision

The Environmental Protection Agency (EPA) is advising manufacturers and processors of chemical substances that all provisions of the TSCA Inventory Rule remain in effect despite the DC Circuit's partial remand of the rule.5 On April 26, 2019, the DC Circuit held that a provision in the TSCA Inventory Rule exempting entities from providing substantiation that a confidential chemical identity is not "readily discoverable through reverse engineering" should be revisited. 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. The DC Circuit held that this change was arbitrary and capricious, and remanded this portion of the rule to EPA.6

EPA noted that it may supplement a proposed rule that was open for public comment through June 24, 2019 in light of the DC Circuit decision. The proposed rule would establish a plan to review chemical identity CBI claims asserted in Notice of Activity (NOA) Form A's pursuant to the TSCA Inventory Rule.7 EPA encouraged parties interested in submitting comments on the proposed plan for EPA review of chemical identity CBI claims by the June 24, 2019 deadline, but said it also would provide an extended comment period for any supplemental proposal.

Environmental Group Sues Pennsylvania for Seeking Regulation of PFAS in Drinking Water

Delaware Riverkeeper Network (DRN) filed suit against Pennsylvania in state court on May 16, 2019.8 DRN is seeking a court order requiring the state to respond to DRN's May 2017 petition calling upon the state to establish a maximum contaminant level (MCL) for PFOA in drinking water. The petition called upon Pennsylvania to set an MCL for PFOA between 1 part per trillion (ppt) and 6 ppt. State officials have pushed back on the allegations in the lawsuit that the establishment of an MCL has been unjustifiably delayed, saying that the state is committed to setting an MCL and is working as quickly as possible to do so.9

Trade Group and Labor and Environmental Organizations Filed Lawsuits Challenging Methylene Chloride Rule

EPA faces three lawsuits—two in the Second Circuit Court of Appeals and one in the DC Circuit—challenging its final rule regulating methylene chloride under TSCA. The final rule, issued in March, prohibits the manufacture, processing, and distribution in commerce of methylene chloride for consumer paint and coating removal. EPA did not make a final determination on commercial uses of methylene chloride. Instead, EPA published an advance notice of proposed rulemaking seeking public comment on a potential training, certification, and limited access program as an option for risk management for the commercial uses of methylene chloride in paint and coating removal. In the Second Circuit, the methylene chloride rule is challenged by environmental and consumer advocacy groups, a labor organization representing Latino workers, and two women whose sons died after exposure to paint or coating strippers containing methylene chloride.10 In the DC Circuit, the final rule is challenged by a trade group representing the interests of manufacturers of methylene chloride and formulators and users of paint-stripping products that contain methylene chloride.11

» Return to Table of Contents

Federal Developments

Regulatory Developments

EPA Releases Draft PBT Risk Management Rules

On June 21, 2019, EPA released a pre-publication copy of the TSCA Section 6(h) risk management rule for five chemical substances that are persistent, bioaccumulative, and toxic (PBT).12 June 22 was EPA's statutory deadline for issuing the proposed rules. The five PBT substances are (1) decabromodiphenyl ethers (DecaBDE); (2) hexachlorobutadiene (HCBD); (3) pentachlorothiophenol (PCTP); (4) phenol, isopropylated, phosphate (3:1) (PIP (3:1)); and (5) 2,4,6-tris(tert-butyl)phenol (2, 4, 6 TRIS). EPA proposes restrictions and prohibitions on the manufacture, processing, and distribution for many uses of four of the five substances. The proposed rule also includes recordkeeping requirements for these four substances and a ban on downstream releases to water for PIP (3:1), as well as a requirement to notify downstream users of the PIP (3:1) restrictions. For HCBD, EPA proposes no action based on the Agency's determination that the potential for exposure from uses of HCBD is already addressed by actions under other federal and state statutes and further measures are not practicable. EPA rejected the alternative of prohibiting the manufacture of HCBD because doing so also would effectively prohibit manufacture of three widely used solvents: perchloroethylene, trichloroethylene, and carbon tetrachloride. The comment period on the proposed rule is scheduled to last for 60 days following publication of the proposed rule in the Federal Register. The amended TSCA requires EPA to issue the final rule within 18 months.

Executive Order Lays Groundwork for Easing Development and Increasing Acceptance of Agricultural Biotechnology Products

On June 11, 2019, President Trump signed Executive Order 13,874 on federal oversight of agricultural biotechnology products such as animals, plants, and animal and plant products developed through genetic engineering or targeted in vivo or in vitro manipulation of genetic information.13 The order articulates principles and directs actions intended to create "a science-based regulatory system that evaluates products based on human health and safety and potential benefits and risks to the environment" and that "both foster[s] public confidence in biotechnology and avoid[s] undue regulatory burdens." Among other things, the order directs EPA, the Department of Agriculture, and the US Food and Drug Administration (FDA) to establish a streamlined regulatory program, including a web-based platform for submission of inquiries about particular agricultural biotechnology products. The order also requires development of domestic and international strategies to build public confidence in and increase acceptance of agricultural biotechnology products.

FDA Announces Survey Findings on PFAS in Food

On June 11, 2019, FDA announced the findings of its testing for PFAS in samples of foods collected as part of FDA's Total Diet Study (TDS) in 2017.14 The testing detected no PFAS compounds in the majority of the sampled foods. The testing did find PFAS in 14 of the 91 samples, but FDA's safety assessment determined that the products were not likely to pose health concerns at the detected levels. FDA said it would continue the testing of TDS samples to help calculate the risks of exposure through food. FDA also said it had established an internal agency PFAS workgroup to establish baseline levels for PFAS in foods that will be used to estimate overall PFAS exposure.

EPA Received Manufacturer Requests for Risk Evaluations of Two Phthalates

On May 24, 2019, EPA received manufacturer requests for risk evaluations of two chemical substances: diisodecyl phthalate (DIDP) and diisononyl phthalate (DINP).15 EPA announced its receipt of the requests on June 14, but EPA has not yet published a notice in the Federal Register. Within 60 business days of receipt of the requests, EPA must publish a notice of receipt of the requests, along with any additional information EPA may consider in the risk evaluation and identification of the additional conditions of use EPA believes should be included in the evaluation. A public comment period of at least 45 days will follow, after which EPA will have 60 days to decide whether to grant or deny the manufacturers' requests.

Two More TSCA Draft Risk Evaluations Released to Public Comment

On June 28, 2019, EPA announces the availability of two new draft risk evaluation documents and the dates for the peer review for Cyclic Aliphatic Bromide Cluster (HBCD) and 1,4-Dioxane.16 These two risk evaluations will bring the total to three draft risk evaluations released by EPA for the first 10 chemical substances undergoing the risk evaluation process established pursuant to the 2016 amendments to TSCA. (The draft risk evaluation for pigment violet 29 was released in late 2018.) Such evaluations will enable the Agency to reach a determination regarding whether a chemical substance presents an unreasonable risk to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation. The risk evaluations will be subject to a 60-day public comment period (to commence when the pertinent Federal Register notice publishes) and the Agency is submitting these documents to the TSCA Science Advisory Committee on Chemicals (SACC) for peer review. There will be a five-day, in-person meeting of the TSCA SACC to consider and review these draft risk evaluations commencing July 29, 2019. Draft risk evaluations pertinent to the remaining 7 substances undergoing risk evaluations are expected to be released in the coming weeks. The remaining seven substances for which draft risk evaluations will be released soon are: (a) asbestos, (b) 1-bromopropane, (c) carbon tetrachloride, (d) methylene chloride, (e) n-methylpyrrolidone, (f) perchloroethylene, and (g) trichloroethylene.

EPA Releases Spring 2019 Unified Regulatory Agenda

EPA released its Spring 2019 Unified Regulatory Agenda on May 23, 2019.17 The Unified Regulatory Agenda provides updates on the Agency's regulatory actions. The Spring 2019 Agenda sheds light on EPA's intention with respect to PFAS chemicals following the February 2019 release of the PFAS Action Plan.18 The Agenda notes that EPA will take steps towards possibly setting a maximum contaminant level (MCL) for PFOA and PFOS in drinking water. EPA intends to make a Safe Drinking Water Act (SDWA) regulatory determination on PFOA and PFOS by the end of 2019, which it must do before determining whether to establish an MCL for PFOA and PFOS. The Agenda also indicates that EPA will be publishing an advance notice of proposed rulemaking in October 2019 to assess whether PFAS chemicals should be covered by the Toxics Release Inventory (TRI) program. If these substances were covered by the TRI program, certain industrial facilities would be required to report to EPA annually about the use of these chemicals and the amounts of these chemicals released to the environment.

The Unified Regulatory Agenda also provides insight on EPA's timeline for finalizing certain regulations that are currently in the proposed rule stage. The Agenda correctly stated that EPA was on track to meet the June 2019 deadline established under TSCA for the publication of proposed TSCA Section 6(h) rules governing certain persistent, bioaccumulative, and toxic (PBT) chemical substances. As noted above, EPA has successfully met its deadline for proposing rules for 5 PBT substances: (1) decabromodiphenyl ether; (2) hexachlorobutadiene; (3) pentachlorothiophenol; (4) phenol, isopropylated phosphate (3:1); and (5) 2,4,6-tris(tert-butyl)phenol. Additionally, the Unified Regulatory Agenda indicates that EPA intends to finalize a rule establishing a plan to review chemical identity CBI claims submitted pursuant to the TSCA Inventory Rule by March 2020. The TSCA CBI review rule was proposed by EPA on April 23, 2019.19

No longer included on the Agenda was the finalization of a Significant New Use Rule proposed in 2014 for 15 nonylphenols and nonylphenol ethoxylates, which are nonionic surfactants, or detergent-like substances, used in industrial processes and consumer products.

Inactive Status for Chemical Substances Becomes Official on August 5

On August 5, 2019, chemical substances identified as inactive in the TSCA Inventory published in February 2019 will be officially designated as inactive. EPA set this effective date in a Federal Register notice published on May 15.20 Once a chemical substance is designated as inactive, manufacturers, importers, and processors must submit a Notice of Activity (NOA) Form B to EPA to reactivate the substance prior to manufacturing, importing, or processing. A Form B may also be submitted at any point before the August 5 effective date for inactive designations. Filing an NOA Form B allows manufacturers and processors to ensure that the chemical substances important to their operations remain active on the TSCA Inventory. Materials from an EPA webinar on the NOA Form B process can be found on EPA's website.21

EPA Released Draft of Revised Method for Assessing Pesticide Risks to Endangered Species

In May 2019, EPA published the "Draft Revised Method for National Level Endangered Species Risk Assessment Process for Biological Evaluations of Pesticides."22 The document modifies a pilot method used to develop nationwide biological evaluations for three initial chemicals—chlorpyrifos, diazinon and malathion—that were released in January 2017. The modifications are intended to address several limitations identified by EPA in the pilot method. First, EPA said the pilot method did not meaningfully distinguish species that are likely to be exposed to and affected by the assessed pesticides from those that are not likely to be exposed. Second, EPA indicated that the agency would not be able to sustain the level of effort required by the pilot method for all pesticides. Third, EPA found that the amount of documentation produced by the pilot method was too great for the public to review and comment upon in a reasonable timeframe. The new draft method addresses these issues in four major areas of revisions. First, EPA proposed an approach that would incorporate pesticide-specific usage data. Second, a "No Effect" determination would be made for any listed species whose range or designated critical habitat overlaps <1% with the pesticide's Action Area because EPA does not consider any overlap of <1% to be reliable. Third and fourth, EPA proposed to use probabilistic methods and a weight-of-evidence framework to determine the likelihood that a pesticide will adversely affect listed species. EPA said it would take comment on the draft revised method through July 1.

EPA Denied Petition by State Attorneys General for Additional Reporting on Asbestos Use

On May 8, 2019, EPA published its reasons for denying a TSCA Section 21 petition by state attorneys general requesting that EPA initiate a rulemaking process for reporting the manufacture, import, and processing of asbestos. The attorneys general asserted that reporting requirements pursuant to TSCA Section 8(a) were necessary to obtain comprehensive data on the manufacture and use of asbestos in the United States for EPA to consider in its ongoing risk evaluation of asbestos under TSCA Section 6(b). They contended that comprehensive data was not available due to infirmities in the Chemical Data Reporting rule. EPA said it was denying the petition because it believes it already has the essential information it would receive if the petition were granted. EPA also cited timing issues as a basis for denying the petition.

Legislative Developments

Congress Takes Aim at PFAS Chemicals, PFAS Amendments Show Up in Defense Bills

Members of the US House of Representatives and the US Senate introduced more than a dozen PFAS-related bills during the beginning of May. Both bodies of Congress also held hearings on PFAS during May. In addition, both houses are considering annual defense authorization bills that include PFAS provisions.

The bills introduced during May cover a wide range of PFAS issues. For example, the Providing Financial Assurance for Safe Drinking Water Act (PFAS Drinking Water Act), H.R. 2533, would require EPA to establish a program to award grants to community water systems to treat PFAS in drinking water and to publish a list of treatment technologies viewed by EPA as effective in removing PFAS from drinking water.23 The PFAS User Fee Act of 2019, H.R. 2570, would require EPA to establish fees to be levied on manufacturers of PFAS. These fees would be based on the amount of PFAS an entity manufactures, and EPA would be required to collect no less than $2 billion in PFAS fees annually.24 The PFAS Detection Act of 2019, introduced in the House and Senate as H.R. 1976 and S. 950 respectively, would require the United States Geological Survey to conduct nationwide sampling to determine the concentration of PFAS chemicals in water and soil.25 The PFAS Accountability Act, S. 1372, would require federal agencies to develop cooperative agreements with states to address PFAS contamination originating from federal facilities.26

The House Energy & Commerce Subcommittee on Environment & Climate Change held a hearing on May 15, 2019 to consider 13 PFAS bills. Witnesses at the hearing included representatives of environmental NGOs, water utilities, and communities with water supplies impacted by PFAS.27 The Senate Committee on Environment & Public Works held a hearing on May 22, 2019 to consider seven pieces of PFAS legislation. Witnesses at this hearing included representatives of trade associations, state environmental agencies and environmental NGOs.28

On June 13, 2019, the House Armed Services Committee approved the fiscal 2020 National Defense Authorization Act, H.R. 2500, which includes more than $120 million for remediation of sites contaminated with perfluorinated chemicals.29 The House bill also requires that the use of fluorinated aqueous film-forming foam (AFFF) at military installations be phased out by September 30, 2029, or earlier, if possible; prohibits uncontrolled releases of AFFF at military installations; and prohibits use of AFFF for training exercises. The bill would also require the Department of Defense (DOD) to include blood testing for potential exposure to PFAS in the annual physical examinations for DOD firefighters and would authorize provision of uncontaminated water supplies for areas where a military installation caused PFOA or PFOS levels to exceed certain thresholds. Amendments have been proposed that would regulate PFAS more broadly.

In the Senate, a bipartisan group of senators agreed to a package of amendments to the Senate defense bill to address PFAS.30 Among other things, the amendments would require EPA to promulgate national primary drinking water standards for PFOA and PFOS within two years and would include PFOA, PFOS, and other perfluoroalkyl or polyfluoroalkyl substances on the Toxics Release Inventory.

» Return to Table of Contents

State Regulatory & Legislative Action

Alabama

On June 21, 2019, the Alabama Environmental Management Commission approved amendments to the water supply program regulations that give the Department of Environmental Management authority to require monitoring for unregulated contaminants such as PFOA and PFOS for which health advisories or toxicity values have been issued.

Arizona

On May 13, 2019, Governor Doug Ducey signed legislation banning the use by local governments and state agencies of PFAS-containing Class B firefighting foams for training purposes.31 The law also prohibits the use of such foams for testing purposes except where required by law or federal regulation or where the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent uncontrolled releases. The prohibitions take effect on January 1, 2020.

California

The California Department of Toxic Substances and Control (DTSC) is seeking comment and holding public meetings on adverse impacts associated with the presence of 1,4-dioxane in personal care and cleaning products as it considers the potential listing of specific products as Priority Products in the Safer Consumer Products program. On May 23, 2019, DTSC released a Work Plan Implementation document summarizing its preliminary findings.32 The document poses questions related to three themes: potential adverse impacts of 1,4-dioxane, presence of 1,4-dioxane in personal care and cleaning products, and development of an Alternatives Analysis Threshold.

Colorado

On June 3, 2019, Colorado Governor Jared Polis signed a law prohibiting use of PFAS-containing Class B firefighting foam for training or testing purposes.33 The prohibition takes effect on August 2, 2019. Beginning on that date, the law also requires manufacturers and sellers of firefighting personal protective equipment that contains intentionally added PFAS chemicals to provide written notice to the purchaser at the time of sale. Beginning on August 2, 2021, the sale, offering for sale, or distribution for sale or use of Class B firefighting foams to which PFAS chemicals have been added will be prohibited, unless one or more of four exceptions apply, including that the inclusion of PFAS chemicals is authorized or required by federal law or that the PFAS-containing foam is for use at a chemical plant. The Colorado law also directs the Department of Public Health and Environment to conduct a survey of fire departments every three years to assess use of PFAS-containing firefighting foams. A report on the first survey is due by January 1, 2020.

Maine

Under a law signed by Maine Governor Janet Mills on June 13, 2019, food packages to which phthalates have been intentionally added may not be sold starting in 2022.34 In addition, the law authorizes the Department of Environmental Protection (Maine DEP) to prohibit the sale of food packages to which PFAS have been intentionally added if Maine DEP determines that a safer alternative is available. The law also creates a regulatory program to address chemicals in food packaging more broadly. The program involves creation of a list of no more than 10 food contact chemicals of high concern, from which priority food contact chemicals may be designated. The designation of a priority food contact chemical triggers reporting requirements for manufacturers or distributors of food packages that contain the chemical, and Maine DEP may prohibit the manufacture, sale or distribution of such packages if distribution of the food packages directly or indirectly exposes consumers to the priority food contact chemical and one or more safer alternatives to the priority food contact chemical are available at a comparable cost.

Minnesota

Minnesota did not finalize a prohibition on the use of TCE as a vapor degreaser, refrigerant, extraction solvent, or intermediate chemical in the state. The Minnesota House of Representatives35 and the Minnesota Senate36 passed different versions of bills containing this prohibition. Neither version became law, but the state did set aside almost $800,000 for research on the effects of TCE in Minnesota.37

New York

The New York legislature passed a bill at the end of its session that would ban 1,4-dioxane in household cleansing, personal care and cosmetic products by the end of 2022.38 The bill specifies trace concentrations that would be acceptable and establishes processes for manufacturers to seek short-term waivers from the bans.

Both houses of the New York legislature also approved a bill that would ban the use of PFAS-containing firefighting foams for training purposes.39 If signed by the governor, the bill would also institute a more widespread ban of such firefighting foams in two years but would continue to allow their manufacture and sale for use in specified situations. The bill would also require manufacturers and sellers of firefighting personal protective equipment that contains PFAS chemicals to notify purchasers of the presence of PFAS in the products and the reason for the addition of PFAS.

Another bill approved by the legislature at the end of the session would require disclosure of ingredients in menstrual products.40 Earlier in the session, the legislature passed the Child Safe Products Act, that would establish reporting and disclosure requirements for "dangerous chemicals" in children's products.41 The legislature also passed a ban on the use of the pesticide chlorpyrifos.42 The governor has until the end of the year to sign the bills.

Vermont

By December 2019, drinking water systems in Vermont must conduct testing to measure all PFAS substances detectable from standard laboratory methods.43 Senate Bill 49, signed into law in May 2019, also requires drinking water systems to continue monitoring for PFAS substances regulated by the state (perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), and perfluoroheptanoic acid (PFHpA)) if any of these substances are detected during the initial monitoring. The frequency of required monitoring depends on the levels at which the substances are detected. If a drinking water system detects any of these substances individually or in combination at levels above the Vermont Department of Health advisory level of 20 ppt, the drinking water system must issue a "do not drink" notice that is applicable until the water system has implemented treatment to bring the levels below 20 ppt.

On June 19, 2019, Vermont's governor signed Senate Bill 55, which amends the state's chemical disclosure program for children's products.44 The amended law requires manufacturers of children's products to include the brand name, product model, and universal product code in their disclosures for products that contain a chemical of high concern to children (CHCC). The amended law also changes the criteria for adding chemicals to the list of CHCCs by eliminating a requirement that findings be based on "the weight of" evidence. In addition, the law gives the Commissioner of Health more discretion and lowers the threshold to adopt rules regulating the sale and distribution of children's products containing CHCCs. The law also requires the Commissioner of Health to issue regulations regarding the timing and process for manufacturer disclosures when the manufacturer plans to introduce a new product between the CHCC program's required reporting dates. In addition, the Commissioner must submit a report on the CHCC program to the legislature by January 15, 2020. The report must discuss how to make disclosed information more "consumer-centric" and whether it would be feasible to require review and approval prior to sale of the safety of children's products containing CHCCs. The legislation also codifies the existence of an Interagency Committee on Chemical Management (previously established by executive order). The Committee is charged with reviewing chemical use in Vermont and recommending legislative and regulatory action to address regulated chemicals as well as unregulated chemicals of emerging concern. The Committee will also monitor EPA actions under TSCA and notify Vermont agencies of EPA actions relevant to state agencies' jurisdiction.

» Return to Table of Contents

*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. Safer Chems. Healthy Families v. EPA, No. 17-72260 (9th Cir.).

  2. 40 C.F.R. Part 702.

  3. Id.

  4. Maria Hegstad, Judges Hint at NGOs' Standing to Target Key TSCA Rule on Legacy Issues, InsideEPA (May 16, 2019); 82 Fed. Reg. 33,726, 33,730 (July 20, 2017) (stating that EPA would not consider legacy uses).

  5. Chemical Identity CBI Claims for Active Chemicals on the TSCA Inventory, EPA (last updated June 10, 2019).

  6. Envtl. Def. Fund v. EPA, No. 17-1201 (Apr. 26, 2019). For additional information on this decision, please see the May 2019 edition of The Chemical Compound.

  7. Procedures for Review of CBI Claims for the Identity of Chemicals on the TSCA Inventory, 84 Fed. Reg. 16,826 (Apr. 23, 2019).

  8. Petition for Review in the Nature of an Action for Injunctive & Declaratory Relief, Delaware Riverkeeper Network v. Pennsylvania, No. 285 MD 2019 (Pa. Commw. Ct. May 16, 2019).

  9. Jon Hurdle, PA Accused of "Foot-Dragging" on 2-Year-Old Request to Regulate PFAS Chemical, WSKG (May 21, 2019).

  10. Petition for Review, Vt. Pub. Interest Research Grp. v. EPA, No. 19-01044 (2d Cir. Apr. 18, 2019); Petition for Review, Labor Council for Latin Am. Advancement v. EPA, No. 19-01042 (2d Cir. Apr. 18, 2019); see also Pat Rizzuto, Moms, Workers Sue EPA for Alleged Flaws in Paint Stripper Rule, Bloomberg Law (Apr. 19, 2019, 5:51 PM).

  11. Petition for Review, Halogenated Solvents Indus. Alliance v. EPA, No. 19-1115 (D.C. Cir. May 24, 2019).

  12. EPA, Regulation of Persistent, Bioaccumulative, and Toxic Chemicals under TSCA Section 6(h) (Pre-Publication Notice) (June 21, 2019).

  13. Exec. Order No. 13,874, 84 Fed. Reg. 27,899 (June 14, 2019).

  14. Press Announcement, U.S. Food & Drug Admin., Statement on FDA's Scientific Work to Understand Per- and Polyfluoroalkyl Substances (PFAS) in Food, and Findings from Recent FDA Surveys (June 11, 2019).

  15. List of Manufacturer-Requested Risk Evaluations under TSCA Section 6, EPA (last updated June 14, 2019).

  16. Risk Evaluation for 1,4 Dioxane, EPA (last updated June 28, 2019); Risk Evaluation for Cyclic Aliphatic Bromide Cluster (HBCD Cluster), (last updated June 28, 2019).

  17. Press Release, U.S. Envtl. Protection Agency, EPA Spring 2019 Agenda of Regulatory and Deregulatory Actions Shows Commitment to Strong Environmental Protection and Regulatory Reform(May 23, 2019).

  18. For additional information on the PFAS Action Plan, please see the May 2019 edition of The Chemical Compound.

  19. Procedures for Review of CBI Claims for the Identity of Chemicals on the TSCA Inventory, 84 Fed. Reg. 16,826 (Apr. 23, 2019).

  20. TSCA Inventory Notification (Active-Inactive) Requirements; Availability of a Signed Action Identifying Chemical Substances for Inactive Designation, 84 Fed. Reg. 21,772 (May 15, 2019).

  21. EPA Webinar: TSCA Inventory Notification (Active-Inactive) Requirements and Reporting Application – Notice of Activity Form B (Mar. 13, 2019).

  22. Pesticides; Draft Revised Method for National Level Endangered Species Risk Assessment Process for Biological Evaluations of Pesticides; Notice of Availability and Public Meeting, 84 Fed. Reg. 22,120 (May 16, 2019); EPA, DRAFT EPA Proposed Revised Method for National Level Endangered Species Risk Assessment Process for Biological Evaluations of Pesticides (last visited June 25, 2019).

  23. PFAS Drinking Water Act, H.R. 2533, 116th Cong. (2019).

  24. PFAS User Fee Act of 2019, H.R. 2570, 116th Cong. (2019).

  25. PFAS Detection Act of 2019, H.R. 1976/S. 950, 116th Cong. (2019).

  26. PFAS Accountability Act of 2019, S. 1372, 116th Cong. (2019).

  27. Hearing on Protecting Americans at Risk of PFAS Contamination & Exposure, House Comm. on Energy & Commerce (May 15, 2019).

  28. Examining Legislation to Address the Risks Associated with Per- and Polyfluoroalkyl Substances (PFAS), U.S. Senate Comm. on Env't & Pub. Works (May 22, 2019).

  29. National Defense Authorization Act for Fiscal Year 2020, H.R. 2500, 116th Cong. (2019).

  30. National Defense Authorization Act for Fiscal Year 2020, S. 1790, 116th Cong. (2019); see David Schultz, Senate Bill Would Have EPA Regulate PFAS in Drinking Water, Bloomberg Law (June 19, 2019 10:27 AM).

  31. 2019 Ariz. Legis. Serv. Ch. 222 (S.B. 1526) (codified at Ariz. Rev. Stat. § 36-1696).

  32. Cal. Dep't of Toxic Substances Control, Work Plan Implementation: 1,4-Dioxane in Personal Care and Cleaning Products (May 23, 2019).

  33. 2019 Colo. Legis. Serv. H.B. 19-1279.

  34. 2019 Me. Legis. Serv. Ch. 277 (H.P. 1043) (L.D. 1433).

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

  36. S.F. 2075, 91st Leg. (Minn. 2019).

  37. Walker Orenstein, How a Bipartisan Plan to Ban the Use of Carcinogenic TCE Fell Apart at the Minnesota Legislature, MINNPOST (May 28, 2019).

  38. S 4389B (N.Y. 2019).

  39. S 439A (N.Y. 2019).

  40. S 2387B (N.Y. 2019).

  41. S 501B (N.Y. 2019).

  42. S 5343 (N.Y. 2019).

  43. 2019 Vermont Laws No. 21 (S. 49).

  44. 2019 Vermont Laws No. 75 (S. 55).

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