News
May 28, 2020

The Chemical Compound—May 2020

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 the Environmental Protection Agency (EPA or the Agency) 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

  • Virtual Bench Trial to Begin on June 8 in Lawsuit Challenging EPA Denial of Petition Seeking TSCA Regulation of Drinking Water Fluoridation
  • Federal Court Denied Motion to Dismiss US's Challenge to State Permit for Air Force Base; Permit Regulated PFCs as Hazardous Waste

» Federal Developments

Legislative Developments

  • Senate Committee Advanced Drinking Water Bill with PFAS Requirements

Regulatory Developments

  • EPA Offered Relief from Risk Evaluation Fee Obligation to Some Businesses
  • EPA Added 172 PFAS to Toxics Release Inventory List
  • EPA Issued Draft Scopes for Next 20 Risk Evaluations of High-Priority Substances
  • EPA Released 2020 Annual Plan and Ninth and Tenth Draft Risk Evaluations; Peer Review Report Issued on Carbon Tetrachloride Draft Evaluation
  • EPA Updated "Small Manufacturer" Definition for CDR Reporting Exemption
  • EPA Sought Comment on Preliminary Determination to Regulate PFOA and PFOS Under the Safe Drinking Water Act
  • EPA Received Manufacturer Request for Risk Evaluation of Silicone Chemical
  • EPA Published First Mercury Inventory Based on 2018 Reporting Rule
  • EPA Described Progress on PFAS Action Plan
  • EPA and Ski Wax Company Settled TSCA Violations Related to Imports of PFAS-Containing Products

» State Regulatory & Legislative Action

  • California
  • Michigan
  • Minnesota
  • New Jersey
  • New York
  • Washington
  • Wisconsin

Litigation

Virtual Bench Trial to Begin on June 8 in Lawsuit Challenging EPA Denial of Petition Seeking TSCA Regulation of Drinking Water Fluoridation

Beginning on June 8, 2020, the federal district court for the Northern District of California will hold a bench trial using Zoom in the lawsuit challenging EPA's denial of a TSCA Section 21 petition requesting that EPA regulate fluoridation of drinking water pursuant to Section 6(a) of TSCA.1 The trial will be bifurcated. First, the court will conduct a de novo review of the petition and determine whether the plaintiffs demonstrate by a preponderance of the evidence that fluoridation presents an unreasonable risk of injury to health or the environment.2 If the court determines that unreasonable risk exists, it will determine whether EPA can defer the Section 6(a) rulemaking process pursuant to Section 20, which allows the court to permit EPA to defer if the court finds "that the extent of the risk to health or the environment alleged by the petitioner is less than the extent of risks to health or the environment with respect to which the Administrator is taking action under this chapter and there are insufficient resources available to the Administrator to take the action requested by the petitioner."3

Federal Court Denied Motion to Dismiss US's Challenge to State Permit for Air Force Base; Permit Regulated PFCs as Hazardous Waste

A federal district court in New Mexico declined to dismiss or abstain from exercising jurisdiction over a lawsuit brought by the United States challenging a hazardous waste disposal permit for Cannon Air Force Base issued by the New Mexico Environment Department. The US objected to the permit because it included perfluorinated compounds within its definition of "hazardous waste,"4 which the US asserted was inconsistent with the New Mexico Hazardous Waste Act (NMHWA), through which New Mexico implements the federal Resource Conservation and Recovery Act (RCRA). The US contends that the permit language therefore exceeds the RCRA waiver of sovereign immunity. The court found that the Younger, Pullman, and Colorado River abstention doctrines did not apply. The court also found that the US "sufficiently explained the Permit is allegedly deficient because its hazardous waste definition exceeds the hazardous waste definitions in the NMHWA and RCRA, and that this deficiency is the reason why the United States alleges it is exempt from RCRA's waiver of sovereign immunity."

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Federal Developments

Legislative Developments

Senate Committee Advanced Drinking Water Bill with PFAS Requirements

On May 6, 2020, the Senate Environment and Public Works Committee unanimously approved the Drinking Water Infrastructure Act of 2020, which includes amendments to the Safe Drinking Water Act that would require EPA to set national drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) within two years of the law's enactment.5 The legislation also could require that the national drinking water standards apply to other per- and polyfluoroalkyl substances (PFAS) pursuant to processes that the law would establish.

Regulatory Developments

EPA Offered Relief from Risk Evaluation Fee Obligation to Some Businesses

On March 25, 2020, EPA announced that it intended to propose amendments to the TSCA Fees Rule provision that obligates manufacturers of High-Priority Substances to contribute to EPA's costs of conducting risk evaluations for those chemicals.6 EPA plans to propose to exempt three categories of "manufacturers" from the obligation to contribute:

  1. importers of articles containing a High-Priority Substance;
  2. producers of a High-Priority Substance as a byproduct; and
  3. producers or importers of a High-Priority Substance as an impurity.

Because EPA does not expect to be able to finalize any changes to the existing fees rule until 2021, EPA also issued a "no-action assurance" commitment signed by the head of the Agency's enforcement office.7 Her letter made clear that EPA will not pursue enforcement actions against companies within these three categories for failures to "self-identify" as manufacturers.8 The current deadline for self-identification is June 15, 2020. (On May 26, EPA announced that it would extend the previous deadline of May 27, which was already two months later than the original March 27 deadline.9) EPA's announcement of these steps came after stakeholders "raised significant concerns about the practicalities of self-identifying under the TSCA Fees Rule" given the broad scope of EPA's interpretation of "manufacturer," as discussed in a January 27, 2020 Federal Register notice announcing the availability of preliminary lists of manufacturers subject to the fee obligation.10 In light of the no-action assurance commitment and EPA's announced intent to propose to narrow the scope of "manufacturer," many companies that fall within one of the three categories that will be proposed for exemption do not need to self-identify as manufacturers (or importers) of the initial 20 High-Priority Substances or otherwise submit any notice by EPA's June 15 deadline for the High-Priority Substances designated in December 2019. However, if EPA identified a company that qualifies for the proposed exemptions as a manufacturer of one of the 20 initial High-Priority Substances in the preliminary lists published in January,11then the company must nevertheless certify if it falls within one of the three categories. In addition, parties that wish to provide input on EPA's anticipated proposal to revise the Fees Rule should provide comments by June 15. A frequently-asked-questions document on the Agency's website provides additional information on the fees obligation.12 EPA plans to issue the final lists of responsible fee payers in June and has said it will contact companies identified as fee payers prior to publishing the final lists.13

EPA Added 172 PFAS to Toxics Release Inventory List

In compliance with the National Defense Authorization Act for Fiscal Year 2020 (NDAA), EPA formalized the addition of 172 PFAS to the list of chemicals subject to Toxics Release Inventory (TRI) reporting requirements.14 EPA Assistant Administrator Alexandra Dapolito Dunn signed the final rule on May 18, 2020. The final rule—which EPA determined did not require notice and comment because it merely fulfills a congressional mandate—sets a reporting threshold of 100 pounds for each PFAS added to the list. EPA indicated that applicable TRI reporting exemptions are available for listed PFAS, including the exemption for de minimis concentrations of a chemical in a mixture.15 The applicable de minimis thresholds will be 0.1% for PFOA and 1% for other PFAS. The additions to the list are effective January 1, 2020, so facilities that manufacture, process, or otherwise use the listed PFAS must include them in TRI reports due by July 1, 2021 for the 2020 reporting year. EPA said the 172 PFAS comprise 14 chemicals identified by name in the NDAA and other chemicals that fit criteria set forth in the NDAA and whose identities are not confidential business information (CBI). EPA indicated that there were other chemicals that fit the NDAA's criteria but whose identities were confidential business information. EPA said such substances would not be added to the TRI list until the Agency completed the CBI review required by the NDAA.

EPA Issued Draft Scopes for Next 20 Risk Evaluations of High-Priority Substances

In April 2020, EPA published draft scope documents for the risk evaluations for the 20 High-Priority Substances designated in December 2019.16 Comments on the first 13 scope documents were due on May 26, 2020. Comments on the other seven draft scopes are due on June 8. According to TSCA's statutory deadlines and the regulatory framework created by EPA, the Agency then has until June 30, 2020—six months after the designation of the High-Priority Substances, which initiated their risk evaluations17—to publish final documents specifying the scopes of the risk evaluations.

EPA Released 2020 Annual Plan and Ninth and Tenth Draft Risk Evaluations; Peer Review Report Issued on Carbon Tetrachloride Draft Evaluation

In its 2020 Annual Plan for Chemical Risk Evaluations Under TSCA, which EPA posted in May, EPA indicated it would finalize risk evaluations in FY 2020 (which ends on September 30, 2020) for the first 10 existing chemical substances that the Agency is reviewing pursuant to Section 6 of TSCA.18 The 2016 amendments require that EPA finalize risk evaluations for the initial 10 substances by June 2020.19 On May 20, EPA Administrator Andrew Wheeler told the Senate Environment and Public Works Committee that he expected EPA to issue final risk evaluations for at least two substances by June and the remaining eight by the end of the summer.20 The 2020 Annual Plan also reports that EPA intends to publish draft scope documents for the first two manufacturer-requested risk evaluations (for diisodecyl phthalate (DIDP) and diisononyl phthalate (DINP)) in the third quarter of FY 2020.

On April 27, 2020, EPA released the draft risk evaluation for perchloroethylene (PCE), the last of the first 10 draft evaluations.21 EPA had released the ninth draft risk evaluation—for asbestos—in late March.22

In the draft evaluation for PCE, EPA preliminarily found that certain uses of PCE present unreasonable risk to workers, occupational non-users, consumers, bystanders, and the environment. The primary health risks identified for workers and occupational non-users were neurotoxicity from short- and long-term exposure to PCE and cancer from chronic exposures. In addition, the draft risk evaluation preliminarily identified an unreasonable risk to consumers based on neurotoxicity from acute inhalation and dermal exposure, including exposure related to PCE's use in dry cleaning, and also an unreasonable risk to bystanders based on acute inhalation exposure. The evaluation also made a draft determination of unreasonable risks to aquatic organisms. EPA found that general population exposure pathways were covered by other statutes and therefore EPA did not make a risk determination for the general population. Comments on the draft risk evaluation are due by July 6, 2020.

The draft risk evaluation for asbestos preliminarily found unreasonable risk to workers, occupational non-users, consumers, and bystanders under certain conditions of use and no unreasonable risk to the environment. The conditions of use evaluated for chrysotile asbestos (the only form of asbestos known to be imported, processed, or distributed for use in the US at this time) fell into the following categories: use of diaphragms in the chlor-alkali industry, sheet gaskets in chemical production facilities, oilfield brake blocks, aftermarket automotive brakes/linings, other vehicle friction products, and other gaskets. EPA said it intended to consider legacy uses of asbestos and associated disposals in a supplemental risk evaluation, in response to the Ninth Circuit's 2019 decision in Safer Chemicals Healthy Families v. EPA. EPA did not evaluate hazards or exposures for the general population, finding that these exposure pathways fell under the jurisdiction of other statutes. EPA preliminarily found that the following conditions of use did not present an unreasonable risk: import of asbestos and asbestos-containing products; distribution of asbestos-containing products; disposal of asbestos-containing sheet gaskets processed and/or used in chemical production; and import, use, distribution, and disposal of asbestos-containing brakes for the specialized and large National Aeronautics and Space Administration (NASA) transport plane (known as the "Super Guppy").

On May 1, 2020, the TSCA Science Advisory Committee issued its final report on the draft risk evaluation of carbon tetrachloride prepared by EPA as one of the initial 10 risk evaluations of existing chemical substances.23 EPA preliminarily found that carbon tetrachloride does not present unreasonable risks to the environment or to workers when appropriate personal protective equipment (PPE) is used, but that it did present an unreasonable risk to occupational non-users. The SACC recommended that the evaluation provide additional explanation for any decisions to exclude non-aqueous media and also said the evaluation did not support the conclusions that environmental concentrations would be below hazard thresholds for aquatic species. The SACC also recommended, among other things, additional considerations for the discussion of potentially exposed and susceptible populations. The SACC said the discussion of PPE use and its effectiveness was much improved from earlier risk evaluations.

Other developments related to the risk evaluations for the 10 initial substances include the scheduling of virtual SACC meetings regarding the draft risk evaluations for perchloroethylene (meeting scheduled for May 26–29) and asbestos (meeting to be held on June 8–11; originally scheduled for April 27–30).

EPA Updated "Small Manufacturer" Definition for CDR Reporting Exemption

On May 11, 2020, EPA Assistant Administrator Alexandra Dapolito Dunn signed a final rule revising the definition of "small manufacturer" for purposes of Chemical Data Reporting (CDR) and other TSCA Section 8(a) reporting and recordkeeping requirements.24 The revised definition, which had not been updated since 1988, retains a "two-standard" structure, but the thresholds have been increased based on inflation. The first standard defines a manufacturer (including an importer) as small if its total annual sales combined with those of its parent company are less than $120 million, but if annual production or importation volume of a particular substance at an individual site exceeds 100,000 pounds, the manufacturer or importer will not qualify for the small manufacturer exemption for purposes of that substance at that site (unless the manufacturer also meets the second standard). The second standard defines a manufacturer (including importer) as small if its total annual sales combined with those of its parent company are less than $12 million, regardless of the quantity of a chemical substance produced or imported. EPA also adopted a definition of "small government" and provided that the small manufacturer exemption does not apply to substances subject to a Section 4 order. In addition, the final rule revised 40 C.F.R. § 712.25(c) to align the small manufacturer definition in the Preliminary Assessment Information Rule (PAIR) with the new CDR definition. The new definition will apply to the next CDR submission period, which will extend from June 1 to November 30, 2020.

EPA Sought Comment on Preliminary Determination to Regulate PFOA and PFOS Under the Safe Drinking Water Act

On March 10, 2020, EPA published a request for public comment on its preliminary determinations to regulate PFOA and PFOS—both of which are on the Contaminant Candidate List (CCL)—under the Safe Drinking Water Act.25 EPA also sought comment on its preliminary determination not to regulate six other contaminants on the CCL—1,1-dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene, and RDX. In addition, EPA asked for information and comment on other PFAS and potential regulatory approaches. The notice also presented updates on strontium—for which EPA issued a preliminary positive determination in 2014—and two other CCL contaminants for which the Agency did not making preliminary determinations at this time (1,4-dioxane and 1,2,3-trichloropropane). For strontium, EPA said it would continue its 2016 decision to delay issuance of a final determination. For 1,4-dioxane, EPA said it was not making a preliminary determination at this time because the Agency "has not determined whether there is a meaningful opportunity for public health risk reduction." For 1,2,3-trichloropropane, EPA decided not to make a preliminary determination due to analytical method-based limitations. EPA emphasized that a final positive regulatory determination for PFOA and PFOS would be "the beginning of the Agency's regulatory development process, not the end" and that EPA could find at a later time that PFOA and PFOS did not meet the statutory criteria for finalizing a National Primary Drinking Water Regulation. Comments were originally due on May 11, 2020, but EPA extended the comment period through June 10.26

EPA Received Manufacturer Request for Risk Evaluation of Silicone Chemical

On April 8, 2020, EPA announced that it had received a request from manufacturers to conduct a TSCA Section 6 risk evaluation of octamethylcyclotetrasiloxane (D4), which EPA said is used to make other silicone chemicals and as an ingredient in some personal care products.27 EPA noted that D4 was included on the 2014 Update to the TSCA Work Plan. EPA received the complete request on March 19 and is required to submit a notice for publication in the Federal Register and to open a 45-day comment period on the request within 60 business days of receipt of the complete request.28 In its 2020 Annual Plan, EPA said it expected to determine whether to grant this request within FY 2020.29 This request is the third manufacturer request for a risk evaluation that EPA has received.

EPA Published First Mercury Inventory Based on 2018 Reporting Rule

On April 2, 2020, EPA published notice of the availability of the 2020 mercury inventory report, which the 2016 amendments to TSCA require to be prepared every three years.30 The first inventory was released in 2017. The 2020 inventory is the first one prepared under a rule adopted by EPA in June 2018.31 The report is based on information from calendar year 2018 collected pursuant to the rule.32 EPA received 99 individual submissions that reported on 117 activities (i.e., imported mercury (2% of reporters), mercury manufactured in the United States (6%), imported products (47%), products made in the United States (33%), and mercury used in a manufacturing process other than for manufacturing mercury-added products or mercury compounds (12%)). In its announcement of the report, EPA highlighted information that indicated reduced use of mercury, including no indication of imports or exports of elemental mercury into or out of the United States in 2018 and a decrease in the amount of mercury used in switches and relays manufactured in or imported into the US33 Based on the information gathered, the report identified a number of manufacturing processes and products that intentionally add mercury that it had not previously identified, including printed circuit boards and motors. EPA also identified several actions it is considering to further reduce mercury use, including changes to the mercury inventory reporting rule to complement the amended CDR program regulations, improving the level of detail in mercury inventory reporting, and coordinating with the Interstate Mercury Education and Reduction Clearinghouse.

EPA Described Progress on PFAS Action Plan

In February 2020, EPA released an update on implementation of the Agency's PFAS Action Plan, which set forth actions EPA would take to address PFAS in drinking water, to clean up PFAS contamination, to monitor PFAS in manufacturing, and to increase PFAS scientific research, as well as to use enforcement tools.34Regarding drinking water, EPA reported on EPA Method 533, the new validated method for testing for additional PFAS. In addition, EPA cited its preliminary positive regulatory determination under the Safe Drinking Water Act (discussed above) and its plan to issue a proposed rule this year to implement monitoring for PFAS in the next Unregulated Contaminant Monitoring Rule cycle. EPA also mentioned review of data and research to support development of Clean Water Act water quality criteria for PFAS, development of a risk assessment to understand risks associated with PFOA and PFOS in land-applied biosolids, and examination of information about PFAS in industrial discharges to surface waters. Regarding PFAS cleanups, EPA noted that it had released guidance for addressing groundwater contamination in federal cleanup programs. EPA also said it had moved forward with the process for proposing to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act. In addition, EPA said it was doing work related to test methods and treatment technologies for PFAS. EPA also described other research efforts and funding opportunities, as well as enforcement actions that the Agency has commenced.

EPA and Ski Wax Company Settled TSCA Violations Related to Imports of PFAS-Containing Products

On May 20, 2020, EPA announced that Swix Sport USA would pay a $375,625 penalty and spend $1 million to develop an educational program about PFAS in ski waxes to resolve alleged violations of TSCA Premanufacture Notice and Import Certification requirements.35 "In light of the significant financial impact caused by the COVID-19 public health emergency," the consent agreement delayed the deadline for payment of the penalty until January 29, 2021 (rather than requiring payment within 30 days).

Between 2013 and 2018, the company imported ski wax products on at least 83 occasions that contained PFAS not included on the TSCA Inventory. The education program that the company will fund is referred to as the Responsible Waxing Project (RWP). It must include a number of elements to educate the ski racing community about PFAS in ski waxes and their impact on the environment and to promote the use of alternative products, including PFAS-free waxes. The "primary objective" of the RWP is "to educate and motivate the ski racing community to phase out (and ultimately eliminate) the use of PFAS-containing waxes in ski racking beginning with the 2020 ski season and concluding no later than September 1, 2022." The RWP also will include a component for training ski wax technicians on proper disposal of racing wax shavings and use of appropriate PPE during the waxing process. The Environmental Appeals Board approved the consent agreement on May 13, 2020.36

Links to Other Recently Released TSCA Information

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State Regulatory & Legislative Action

California

California Began Work on Public Health Goals for 1,4-Dioxane in Drinking Water

On March 27, 2020, California's Office of Environmental Health Hazard Assessment (OEHHA) announced that it was initiating the process to develop a non-regulatory Public Health Goal (PHG) for 1,4-dioxane in drinking water.37 In addition, OEHHA is starting the process of updating the PHG for n-Nitrosodimethylamine. OEHHA requested information on the contaminants that could assist in conducting risk assessments and in calculating the PHGs. Comments were originally due on April 27, but the deadline has been extended to June 11. OEHHA also noted that it has begun work on recommendations for notification levels for seven PFAS in response to a February 2020 request from the State Water Resources Control Board.

Carpets and Rugs Containing PFAS Proposed as Priority Product

On February 28, 2020, the California Department of Toxic Substances and Control (DTSC) proposed to establish Carpets and Rugs Containing Perfluoroalkyl or Polyfluoroalkyl Substances as a Priority Product in its Safer Consumer Products program.38 DTSC said it was taking a class approach to PFAS for a number of reasons, including because replacement of currently used PFAS with another PFAS "could constitute a regrettable substitution." The public comment period on the proposal closed on May 15, 2020.

Michigan

PFAS Drinking Water Standards Progressed Through Regulatory Process

On February 27, 2020, Michigan's Environmental Rules Review Committee voted unanimously to send proposed regulations that would set drinking water standards for seven PFAS to the Michigan Legislature's Joint Committee on Administrative Rules. The proposed maximum contaminant levels are as follows:

 Hexafluoropropylene oxide dimer acid (HFPO-DA)          370 ppt 
 Perfluorobutane sulfonic acid (PFBS)         420 ppt 
 Perfluorohexane sulfonic acid (PFHxS)           51 ppt 
 Perfluorohexanoic acid (PFHxA)  400,000 ppt 
 Perfluorononanoic acid (PFNA)             6 ppt 
 Perfluorooctane sulfonic acid (PFOS) (ppt)           16 ppt 
 Perfluorooctanoic acid (PFOA)             8 ppt 
                                               

The status of the proposal can be checked here.

Minnesota

Minnesota Banned TCE Use at Facilities with Air Permits

On May 16, 2020, Minnesota enacted a law that will bar any facility with an air emissions permit issued by the Minnesota Pollution Control Agency (PCA) from using trichloroethylene (TCE) beginning on June 1, 2022.39 Businesses with fewer than 500 employees can arrange for additional time to comply. The law requires the PCA to grant exceptions for use of trichloroethylene in closed systems with no trichloroethylene emissions; for holding trichloroethylene or products containing trichloroethylene for distribution to a third party; and for hospitals or academic medical facilities. In addition, the PCA may grant exceptions for facilities that use TCE exclusively for research and development or other laboratory or experimental purposes and for facilities that process trichloroethylene for waste disposal. For any type of exception to be granted, compliance with health-based value and health risk limits for TCE must be demonstrated.

New Jersey

New Jersey Moved Forward on MCLs for PFOA and PFOS

The New Jersey Department of Environmental Protection (NJDEP) confirmed on April 6, 2020 that it had sent a rule setting maximum contaminant levels (MCLs) for PFOA and PFOS to the Office of Administrative Law on March 31, the day before the proposed rule would have expired.40 The MCLs, when finalized, would be 14 ppt for PFOA and 13 ppt for PFOS.

New York

New York Amended Its Recently Enacted PFAS Firefighting Foam Law

In April 2020, New York enacted amendments to a law passed in late 2019 that restricts use of Class B firefighting foams containing intentionally added PFAS.41 Among other things, the 2020 law amended the types of uses that are exempted from the ban on such firefighting foams. Instead of defining exemptions based on types of facilities and circumstances in which foams are used (e.g., chemical plants, large-scale fires during the process of transporting combustible liquids), the law now requires the Office of Fire Prevention and Control to promulgate rules exempting uses for which it finds that an effective alternative firefighting agent is not available to suppress or prevent ignitable liquid fires. The Office must re-evaluate available alternatives at least every two years and repeal an exemption if an effective PFAS-free alternative is available. In addition, the amendments also changed the locations in which the law is codified.

New York Enacted Law to Regulate Chemicals in Children's Products; Amendments Expected

On February 7, 2020, Governor Cuomo signed the Toxic Chemicals in Children's Products law.42 Rather than following New York's historical practice of regulating substances on a chemical-by-chemical basis, the new law is modeled after programs in other states such as California, Maine, and Washington that have comprehensive chemical regulatory policies. The governor's office indicated that the governor signed the legislation pursuant to a chapter agreement that will involve amendments to the new law. As enacted, the legislation designates numerous "chemicals of concern" and also designates the following chemicals as "dangerous chemicals": tris (1, 3 dichloro-2-propyl) phosphate (TDCPP), benzene, lead and lead compounds, mercury and mercury compounds, formaldehyde, asbestos, arsenic and arsenic compounds, cadmium, and organohalogen flame retardants. The presence of chemicals of concern or dangerous chemicals in a children's product will trigger certain requirements and restrictions. Beginning January 1, 2023, the law as enacted bans the sale of children's products containing TDCPP, benzene, formaldehyde (other than in textiles), asbestos, and organohalogen flame retardants. The law also provides that when a chemical is designated by the New York State Department of Environmental Conservation in the future as a dangerous chemical, a sales ban will go into effect three years later. Bills currently pending in the legislature indicate what changes may be forthcoming, including changing the term "dangerous chemical" to "high-priority chemical," removing lead and formaldehyde from the statutory list of high-priority chemicals, and limiting the statutory designation of organohalogen flame retardants as high-priority chemicals to circumstances in which they are present in upholstered bedding or furniture.43 In addition, the 2023 ban would only apply to children's products to which TDCPP, benzene, or asbestos has been intentionally added. The bills would also establish a Children's Product Safety Council that would make recommendations for high-priority chemical designations and also for chemicals that should be prohibited.

Washington

Washington Extended Eventual Reach of Ban on Firefighting Foams Containing PFAS

On March 18, 2020, Washington enacted amendments to its 2018 law restricting Class B firefighting foam to which PFAS chemicals have been intentionally added.44 The amendments, which take effect on June 11, 2020, provide a procedure by which the ban on such firefighting foams can be extended to firefighting foam where the inclusion of PFAS chemicals was previously required by federal law. In addition, the amendments provide that manufacture, sale, and distribution of PFAS-containing firefighting foams for use at fuel terminals, chemical plants, and oil refineries will only be allowed until January 1, 2024, though operators of such facilities can seek waivers for up to a total of four years.

Wisconsin

Wisconsin Banned PFAS-Containing Firefighting Foams

On February 5, 2020, Wisconsin enacted a law restricting the use of Class B firefighting foams containing intentionally added PFAS.45 The law prohibits the use or discharge of such firefighting foams, except as part of an emergency fire fighting or fire prevention operation and for certain testing purposes. The law takes effect on September 1, 2020. The Wisconsin Department of Natural Resources has begun the process of promulgating regulations to implement the law.46

*Margaret Barry also contributed to this newsletter.

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Arnold & Porter Kaye Scholer LLP 2020 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. Food & Water Watch, Inc. v. U.S. Envtl. Prot. Agency (EPA), No. 3:17-cv-02162-EMC (N.D. Cal.).

  2. TSCA § 21(b)(4)(B)(ii), 15 U.S.C. § 2620(b)(4)(B)(ii).

  3. TSCA § 21(b)(4)(B), 15 U.S.C. § 2620(b)(4)(B).

  4. United States v. N.M. Env't Dep't, No. 2:19-cv-00046, 2020 U.S. Dist. LEXIS 56012 (D.N.M. Mar. 31, 2020).

  5. The version of the bill approved by the EPW Committee is available here.

  6. News Release, EPA, EPA Announces Plan to Reduce TSCA Fees Burden for Stakeholders (Mar. 25, 2020); see also Lawrence E. Culleen, EPA Grants Near Term TSCA Relief; Commits to Propose Changes to Scope of Fees Rule (Apr. 1, 2020); Lawrence E. Culleen, Importer Beware: You Might Be Asked to Pay EPA to Evaluate a Chemical You Don't Manufacture (Jan. 21, 2020).

  7. See 85 Fed. Reg. 20275 (Apr. 10, 2020).

  8.  Memorandum from Susan Parker Bodine, Ass't Adm'r for Enforcement & Compliance Assurance, to Alexandra Dapolito Dunn, Ass't Adm'r, Office of Chem. Safety & Pollution Prevention, regarding No Action Assurance Regarding Self-Identification Requirement for Certain "Manufacturers" Subject to the TSCA Fees Rule (Mar. 24, 2020).

  9. 85 Fed. Reg. 14677 (Mar. 13, 2020).

  10. 85 Fed. Reg. 4661(Jan. 27, 2020); Memorandum from Alexandra Dapolito Dunn, Ass't Adm'r, Office of Chem. Safety & Pollution Prevention, to Susan Parker Bodine, Ass't Adm'r for Enforcement & Compliance Assurance, regarding Request for No Action Assurance Regarding Self-Identification Requirements for Certain "Manufacturers" Subject to the TSCA Fees Rule 2–4 (Mar. 18, 2020).

  11. 85 Fed. Reg. 4661(Jan. 27, 2020).

  12. Frequent Questions about TSCA Fees for EPA-Initiated Risk Evaluations, EPA (last updated Apr. 29, 2020).

  13. Pat Rizzuto, EPA to Verify Chemical Production Before Billing Manufacturers, Bloomberg Env't & Energy Rep. (Apr. 29, 2020, 3:46 PM).

  14. A pre-publication version of the final rule is available here.

  15. Addition of Certain PFAS to the TRI by the National Defense Authorization Act, EPA (last updated May 18, 2020); see also 40 C.F.R. § 372.38.

  16. 85 Fed. Reg. 22733 (Apr. 23, 2020); 85 Fed. Reg. 19941 (Apr. 9, 2020).

  17. See 84 Fed. Reg. 71924 (Dec. 30, 2019); see also 40 C.F.R. § 702.17.

  18. EPA, 2020 Annual Plan for Chemical Risk Evaluations Under TSCA (not dated).

  19. TSCA § 6(b)(4)(G), 15 U.S.C. § 2605(b)(4)(G).

  20. Stephen Lee & Pat Rizzuto, EPA to Miss Its Deadline for Chemical Evaluations, Wheeler Says, Bloomberg Env't & Energy Rep. (May 20, 2020, 1:36 PM).

  21. EPA, Draft Risk Evaluation for Perchloroethylene (Ethene, 1,1,2,2-Tetrachloro), EPA Doc. No. EPA-740-R1-8011 (Apr. 2020); see also 85 Fed. Reg. 26464 (May 4, 2020).

  22. EPA, Draft Risk Evaluation for Asbestos, EPA Doc. No. EPA-740-R1-8012 (Mar. 2020); see also 85 Fed. Reg. 18954 (Apr. 3, 2020).

  23. TSCA Sci. Advisory Comm. on Chems., Meeting Minutes and Final Report No. 2020-03: Peer Review for the United States Protection Agency (EPA) Draft Risk Evaluation for Carbon Tetrachloride (May 1, 2020).

  24. Prepublication Version of the Final Rule "TSCA Chemical Data Reporting Revisions and Small Manufacturer Definition Update for Reporting and Recordkeeping Requirements under TSCA Section 8(a)", EPA (last updated May 12, 2020).

  25. 85 Fed. Reg. 14098 (Mar. 10, 2020).

  26. 85 Fed. Reg. 23940 (Apr. 30, 2020).

  27. News Release, EPA, EPA Receives Manufacturer Request for Risk Evaluation Under TSCA Section 6 (Apr. 8, 2020).

  28. See 40 C.F.R. § 702.37(e)(4).

  29. EPA, 2020 Annual Plan for Chemical Risk Evaluations Under TSCA (not dated).

  30. 85 Fed. Reg. 18574 (Apr. 2, 2020); see TSCA § 8(b)(10); 15 U.S.C. 2607(b)(10).

  31. 83 Fed. Reg. 30054 (June 27, 2018) (codified at 40 C.F.R. part 713).

  32. EPA, Inventory of Mercury Supply, Use, and Trade in the United States: 2020 Report (2020).

  33. News Release, EPA, EPA Publishes Mercury Inventory Report, Enhances Transparency of Data on Supply, Use and Trade (Mar. 30, 2020).

  34. EPA, EPA PFAS Action Plan: Program Update (Feb. 2020).

  35. News Release, EPA, EPA Settlement with Swix Sport USA Resolves TSCA Violations Involving PFAS (May 20, 2020).

  36. Consent Agreement, In re Swix Sport USA, Docket No. TSCA-HQ-2020-5005 (EAB May 13, 2020).

  37. Public Notice, OEHHA, Initiation of Process to Develop/Update Public Health Goals in Drinking Water and Request for Relevant Information: 1,4-Dioxane and n-Nitrosodimethylamine (Mar. 27, 2020).

  38. Proposed Priority Product: Carpets and Rugs with Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs), DTSC (last visited May 21, 2020).

  39. 2020 Minn. Laws. ch. 84.

  40. See Jon Hurdle, NJ Adopts Strict Standards on Two Toxic Chemicals in Drinking Water, NJ Spotlight (Apr. 7, 2020).

  41. 2020 N.Y. Laws ch. 88.

  42. 2019 N.Y. Laws chs. 756 & 757.

  43. S. 7735/A. 9765.

  44. 2020 Wash. Laws ch. 23.

  45. 2019 Wis. Act 101.

  46. 771B Wis. Admin. Reg. SS 015-20 (Mar. 30, 2020).

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