The Chemical Compound—May 2022
This quarterly newsletter provides essential updates on litigation, regulatory, legislative, and other notable developments involving chemicals of concern to business. Our primary focus continues to be matters affecting chemical substances which are the subject of regulatory activity or scrutiny by various federal and state government agencies and potential litigants. This includes emerging contaminants, including per- and polyfluoroalkyl substances (PFAS), 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.
Table of Contents
- FOIA Lawsuits Seek Documents on EPA’s PFAS “Working Definition” and PFAS-Containing Pesticide Containers
- Industry Challenging Latest PIP (3:1) Compliance Date Extension
- Litigation over TRI Exemptions for PFAS Stayed
- Proposed Consent Decree Sets Schedule for TRI Listing Determination for DINP
- California Federal Court Grants EPA Request to Transfer Challenge to Response to PFAS Testing Petition to North Carolina
- EPA Asks for Voluntary Remand in Challenge to DecaBDE TSCA Risk Management Rule
» Federal Developments
» State Regulatory & Legislative Action
FOIA Lawsuits Seek Documents on EPA’s PFAS “Working Definition” and PFAS-Containing Pesticide Containers
On April 28, 2022, Public Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act (FOIA) lawsuit in federal court in the District of Columbia to compel EPA to disclose records and communications related to the Agency’s development of a “working definition” of per- and polyfluoroalkyl substances (PFAS).1 PEER alleged that it filed the action after EPA failed to provide documents or make a final determination on PEER’s October 2021 request for documents. PEER alleged that its FOIA request “built upon” the use of the phrase “working definition” on a webpage addressing PFAS in pesticide packaging and in EPA’s proposed rule entitled “TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances.” PEER also filed an earlier lawsuit seeking documents related to EPA’s March 2021 release of testing data showing PFAS contamination from high-density polyethylene pesticide containers.2
Industry Challenging Latest PIP (3:1) Compliance Date Extension
On April 11, 2022, trade associations filed a petition for review in the DC Circuit Court of Appeals challenging EPA’s final rule extending the compliance date for a prohibition on processing and distributing in commerce certain articles containing phenol, isopropylated phosphate (3:1) (PIP (3:1)) and the PIP (3:1) used to make those articles.3 The final rule—which EPA published on March 8, 2022—extended the compliance date to October 31, 2024.4 EPA adopted the PIP (3:1) prohibition in a January 2021 risk management rule5 promulgated under TSCA Section 6(h), which provides for an expedited process to establish risk management requirements for persistent, bioaccumulative and toxic chemical substances. The original compliance date for the prohibition at issue was March 8, 2021. After stakeholders raised concerns about the prohibition’s impacts on consumer and commercial goods, including electronic devices, EPA issued a temporary no-action assurance until September 20216 and subsequently adopted a final rule that provided a short-term extension until March 8, 2022.7 The trade associations that filed the April 28 petition have also challenged the January 2021 risk management rule as well as the previous extension of the compliance date. The DC Circuit has consolidated the three proceedings.
Litigation over TRI Exemptions for PFAS Stayed
After EPA announced in March 2022 that it planned to propose a rule to make PFAS ineligible for the de minimis exemption to Toxics Release Inventory (TRI) reporting,8 the federal district court for the District of Columbia granted EPA’s motion to stay litigation challenging application of TRI exemptions to PFAS until September 30, 2022.9 The plaintiffs also contend that the exemptions themselves—which were established in 1988 and 1994—exceed EPA’s authority under the Emergency Planning and Community Right-to-Know Act. A joint status report is due September 22, 2022.
Proposed Consent Decree Sets Schedule for TRI Listing Determination for DINP
EPA and four environmental advocacy organizations agreed to a proposed consent decree that would set a schedule for EPA to take final action on a 2000 proposal to list diisononyl phthalate (DINP) on the TRI. The proposed consent decree would require that an EPA official either sign a final rule listing DINP or a notice of withdrawal of the proposed rule no later than January 31, 2023.10 The consent decree would resolve a lawsuit filed by the organizations in 2021.11
California Federal Court Grants EPA Request to Transfer Challenge to Response to PFAS Testing Petition to North Carolina
In a lawsuit brought by environmental groups challenging EPA’s responses to the groups’ petition asking EPA to require health- and environmental-effects testing of 54 PFAS allegedly released into the Cape Fear River watershed in North Carolina, the federal district court for the Northern District of California granted EPA’s motion to transfer the case to the Eastern District of North Carolina.12 The court found that the case could have been brought in the Eastern District of North Carolina originally since at least two of the plaintiffs were based within the district’s boundaries and “a substantial part of the events giving rise to plaintiffs’ claim”—including alleged harm to wildlife and residents in the watershed from PFAS releases—occurred there. The court further concluded that the local interest in having the dispute decided at home (and the “minor connection” between the plaintiffs’ claim and the Northern District of California), the convenience of the witnesses and the interests of justice favored transfer.
EPA Asks for Voluntary Remand in Challenge to DecaBDE TSCA Risk Management Rule
On March 15, 2022, EPA asked the Ninth Circuit Court of Appeals for a voluntary remand without vacatur of a challenge to EPA’s January 2021 TSCA Section 6(h) risk management rule for the flame retardant decabromodiphenyl ether (decaBDE).13 The final rule prohibited manufacture (including import), processing and distribution in commerce of decaBDE, or decaBDE-containing products or articles, with some exclusions. EPA told the court that it had decided to reconsider aspects of the rule and “to determine whether further reductions to exposure to decaBDE are practicable.” EPA argued that the petitioners would not suffer undue prejudice because EPA intends to act expeditiously and publish a proposed rule in spring of 2023 and final rule by approximately the fall of 2024. EPA also argued that a voluntary remand would serve the interests of judicial economy since EPA’s reconsideration could address the petitioners’ claims or narrow their scope. The petitioners—Alaska Community Action on Toxics, Yurok Tribe, Consumer Federation of America, Learning Disabilities Association of America, and Center for Environmental Transformation—opposed the motion. Briefing was completed on April 22, 2022.
PFAS Research Bill Approved by House Committee
The House Committee on Science, Space, and Technology approved, by voice vote, an amended version of the “Federal PFAS Research Evaluation Act” (HR 7289), which would require that two studies be prepared by the National Academies of Sciences, Engineering, and Medicine. The first study would “further address research and knowledge gaps” identified at a federal PFAS research workshop in October 2020 and “identify research and development needed to identify, categorize, evaluate, and address individual or total PFAS.” The legislation specifies elements that must be included in the study, including consideration of life-cycle information on PFAS-containing products to identify potential human exposure sources and consideration of “whether chemical category-based approaches would be appropriate for evaluating PFAS toxicity and exposure.” The second study would be intended to provide a better understanding of “the research and development needed to advance the understanding of the extent and implications of human and environmental contamination by PFAS, how to manage and treat such contamination, and the development of safe alternatives.” The legislation requires that a report on each study be submitted to Congress within 540 days after agreements are entered into with the National Academies for preparation of the studies. After the studies are submitted, the Director of the Office of Science and Technology Policy, in coordination with relevant federal agencies, would be required to submit an implementation plan “for increased collaboration and coordination of Federal PFAS research, development, and demonstration activities.”
EPA Releases 2020 Chemical Data Reporting Information
On May 12, 2022, EPA announced the publication of information submitted during the 2020 Chemical Data Reporting (CDR) cycle.14 The CDR rule, which is promulgated under TSCA Section 8(a), requires manufacturers (including importers) of chemical substances to report information about production and use of certain chemicals on the TSCA Inventory every four years. EPA noted that the data made available in this release included, for the first time, information related to specific chemical identities for substances that lost their confidential status since the last release because one or more manufacturers reported the chemical identities as nonconfidential in 2012, 2016, and/or 2020 reporting. Based on its review, EPA declassified 377 chemical identities.15 In its announcement of the release, EPA said “[l]ongstanding resource shortfalls” limited EPA’s ability to create a more robust CDR reporting tool and that the Agency’s data quality efforts took longer than usual due to competing TSCA priorities.
EPA Proposes New Regulations for TSCA Confidential Business Information Claims
On May 12, 2022, EPA proposed new and amended requirements for asserting and treating confidential business information (CBI) claims under TSCA.16 Many of the proposed amendments are intended to implement statutory changes made by the 2016 amendments to TSCA. EPA said other benefits of the proposed rule would include improved management of CBI, improved communication, increased public transparency for chemical information, decreased frequency of submitter error, and increased procedural efficiency. The proposal consolidates TSCA CBI claim assertion and review procedures in the TSCA regulations, primarily in a new Part 703, and would clarify that most of EPA’s generally applicable CBI rules in 40 CFR Part 2 no longer apply. Consistent with the 2016 amendments, the proposed rule would require that confidentiality claims be asserted at the time of submission. The proposal also includes a standard set of substantiation questions for TSCA CBI claims (but provides that individual TSCA rules may modify those questions) and incorporates statutory exemptions to substantiation requirements. EPA proposed two versions of a CBI substantiation question concerning whether disclosure of information will result in “substantial competitive harm,” as well as alternatives to a question concerning patents. In addition, EPA sought comment on whether a substantiation question regarding trade secrets would provide value. EPA proposed to require public copies of submissions containing confidentiality claims, and to require that public copies be amended following the denial or expiration of a confidentiality claim. Other proposed provisions that implement statutory requirements include a requirement for submission of a supporting statement and certification for each confidentiality claim and submission of a generic name for a substance when its specific chemical identity is claimed as confidential. Under the proposed rule, nearly all TSCA confidentiality claims would have to be asserted electronically, and companies would be required to maintain current contact information for individuals associated with a submission. Harmonized templates (using Organisation for Economic Co-operation and Development (OECD) Harmonized Templates) would be required for submissions of health and safety studies and information from such studies. The proposed rule also would establish procedures for EPA to respond to CBI claim deficiencies, as well as procedures for voluntarily withdrawing confidentiality claims. The rule would codify EPA’s current practice of reviewing all confidentiality claims in every fourth submission received via CDX that contains a CBI claim, except for confidentiality claims for chemical identity, all of which are reviewed except those subject to an exemption. EPA’s proposed substantive criteria for review of confidentiality claims would generally mirror the existing criteria in 40 CFR Part 2 but would be modified to reflect the 2016 amendments’ requirements, including to align with the “substantial competitive harm” language in the statute. The criteria also would clarify that whether a substance’s identity can be readily determined through reverse-engineering is a factor that EPA considers when evaluating whether information can legitimately and reasonably be obtained without a company’s consent. The proposed rule would allow the EPA General Counsel to designate another EPA office to make final confidentiality determinations. The comment period on the proposed CBI rule closes on July 11.
EPA Releases Proposed Asbestos Reporting and Recordkeeping Rule for Public Comment
On May 6, 2022, EPA published a proposed rule under TSCA Section 8(a) that would establish a one-time reporting requirement for certain persons that manufactured, imported or processed asbestos—including asbestos as a component of a mixture, asbestos-containing articles and asbestos as an impurity—in the four years prior to the date of publication of the final rule.17 Information required to be reported would include quantities of asbestos manufactured (including imported) or processed, types of use, employee data such as number of employees associated with an activity, whether personal protective equipment was used, and any workplace exposure measurement assessments. EPA sought comment on collection of additional data elements related to employees, wastewater discharge and waste disposal, air emissions, and customer sites. EPA said the Agency and other federal agencies would use the reported information in future actions such as TSCA risk evaluation and risk management activities. EPA also noted that it was proposing this rule to comply with a settlement in litigation that challenged EPA’s denial of rulemaking petitions that requested that EPA amend the CDR Rule to increase reporting of asbestos-related information. The proposed rule defines “asbestos” to include asbestiform fibers of six fiber types—chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite or actinolite—and Libby Amphibole asbestos. EPA also sought comment on whether the component parts of Libby Amphibole asbestos also should be included within the rule’s scope. In addition, EPA proposed that Libby Amphibole asbestos be eligible for a small business reporting exemption but proposed that the other six fiber types would not be eligible for the exemption because they are subject to a 1989 TSCA Section 6 risk management rule. The proposed rule would require a reporting entity to provide information to the extent it is “known to or reasonably ascertainable by” the entity, which would require a “a reasonable inquiry within the full scope of their organization” and might also entail inquiries outside the organization. EPA proposed both a short form (Form A) for submitters that are not able to provide a reliable quantity of asbestos in products and a full form (Form B) where more detailed information is known or reasonably ascertainable. A three-month reporting period would begin six months after the final rule’s effective date. Comments on the proposed rule are due July 5, 2022.
EPA Proposes TSCA Risk Management Rule for Chrysotile Asbestos
On April 12, 2022, EPA published a proposed risk management rule for chrysotile asbestos under TSCA Section 6.18 The proposed rule is the first that EPA has issued pursuant to the 2016 amendments to TSCA, which established a framework for EPA to conduct risk evaluations of existing chemical substances and, based on the findings of those evaluations, promulgate risk management rules. The proposed rule would prohibit manufacture, import, processing, distribution in commerce, and commercial use of chrysotile asbestos for almost every use addressed in Part 1 of EPA’s risk evaluation for asbestos. (EPA is currently in the process of conducting Part 2 of the risk evaluation, which will examine legacy uses and nonchrysotile forms of asbestos.) The uses that the proposed risk management rule would prohibit are: chrysotile asbestos diaphragms for use in the chlor-alkali industry; chrysotile asbestos-containing sheet gaskets used in chemical production; chrysotile asbestos-containing brake blocks used in the oil industry; aftermarket automotive chrysotile asbestos-containing brakes/linings; other chrysotile asbestos-containing vehicle friction products; other chrysotile asbestos-containing gaskets; aftermarket automotive chrysotile asbestos-containing brakes/linings for consumer use; and other chrysotile asbestos-containing gaskets for consumer use. EPA also proposed disposal and recordkeeping requirements for these conditions of use. The only use for which chrysotile asbestos will not be prohibited is use with the NASA Super Guppy Turbine aircraft. EPA proposed that the prohibitions on chrysotile asbestos diaphragms in the chlor-alkali industry and sheet gaskets in chemical production take effect two years after the final rule’s effective date and that other prohibitions take effect 180 days after the effective date. However, EPA proposed an alternative regulatory action that would impose a ban on such diaphragms and gaskets five years after the effective date and require compliance with an existing chemicals exposure limit prior to the ban taking effect. For other uses, EPA proposed an alternative ban that would take effect two years after the effective date, with certain disposal and downstream notification and signage and labeling requirements taking effect earlier. EPA’s proposal acknowledged that substitutes for asbestos-containing diaphragms in chlor-alkali production use increased concentrations of PFAS. The Agency requested comment on how a transition from asbestos-containing diaphragms could affect PFAS exposures. EPA said it believed that the benefits of removing chrysotile asbestos are significant even though there are uncertainties regarding potential additional PFAS exposure. Comments on the proposed risk management rule are due July 13, 2022.19
EPA Issues TSCA Section 4 Test Orders for Eight High-Priority Substances Undergoing Risk Evaluations
On March 24, 2022, EPA announced that it had issued a second round of TSCA Section 4(a)(2) test orders to obtain information from manufacturers and/or processors on eight high-priority substances undergoing TSCA risk evaluations.20 Six of the substances are chlorinated solvents and two are flame retardants. In January 2021, EPA issued a round of test orders for the same eight substances requiring testing on aquatic environmental hazard and inhalation and dermal exposures for workers. In this second round, EPA required development and submission of data on avian and aquatic environmental hazard and consumer exposure. In April 2022, EPA issued corrected test orders for seven of the chemical substances. For some of the chemicals, the corrections included the addition or replacement of recipients. Information about Section 4 test orders, including resources for recipients of such orders, is available on EPA’s website.
EPA Requests Public Comment on IRIS Study on Formaldehyde
On April 14, 2022, EPA published a notice seeking comment on the draft Integrated Risk Information System (IRIS) Toxicological Review of Formaldehyde (Inhalation).21 EPA previously issued a draft IRIS assessment of formaldehyde in 2010. EPA formally suspended the IRIS assessment in June 2018 and unsuspended the review in March 2021. The 2022 external review draft considered publicly available studies relevant to inhalation exposure to formaldehyde and potential adverse health outcomes. For noncancer effects, the draft report found that the integrated evidence demonstrates that inhalation of formaldehyde causes increased sensory irritation and respiratory tract pathology in humans, given appropriate exposure circumstances, and that evidence indicates that formaldehyde inhalation causes decreased pulmonary function, increased frequency of current asthma symptoms or difficulty controlling asthma, increased allergic responses, and female reproductive or developmental toxicity and reproductive toxicity in men. The draft set a reference concentration of 0.007 mg/m3, which would be the concentration a person can breathe every day for a lifetime that is not anticipated to cause harmful noncancer health effects. For cancer effects, the review draft reports that evidence demonstrates that formaldehyde causes nasopharyngeal cancer, sinonasal cancer and myeloid leukemia. The external review draft is available on EPA’s website. Comments are due June 13, 2022. After the public comment period, the National Academy of Sciences, Engineering, and Medicine will convene a public meeting to discuss the draft report.
White House Seeks Input on Meaning of “Sustainable Chemistry”
On April 4, 2022, the White House Office of Science and Technology Policy (OSTP) published a request for input on the preferred definition of “sustainable chemistry.”22 The William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 tasked OSTP with creating a consensus definition of “sustainable chemistry” for prioritizing and implementing federal programs and activities in support of sustainable chemistry.23 The topics on which OSTP seeks comment are the following: definition of sustainable chemistry, technologies that would benefit from federal attention to move society toward more sustainable chemistry and fundamental research areas. Ancillary topics regarding the definition include potential outcome and output metrics based on the definition of sustainable chemistry, financial and economic considerations for advancing sustainable chemistry, policy considerations for advancing sustainable chemistry, and investment considerations when prioritizing federal initiatives for study. OSTP noted that “sustainable” and “green” chemistry have typically been treated as synonymous terms but that green chemistry has traditionally focused on hazardous substances while sustainable chemistry focuses on both hazardous and nonhazardous substances. OSTP asked for input on how the terms relate to each other and whether they should be synonymous, exclusive or complementary, or if one should be incorporated into the other. OSTP has convened several online meetings to discuss its efforts. The comment period closes on June 3, 2022.
EPA Announced Plan for Perchlorate in Drinking Water
EPA announced on March 31, 2022 that it would leave in place the Trump administration decision not to regulate perchlorate in drinking water, saying the Trump administration’s decision was based on the “best available peer reviewed science.”24 In 2020, the Trump administration determined that the substance did not meet the criteria for regulation as a drinking water contaminant under the Safe Drinking Water Act (SDWA).25 Although the Biden administration will not proceed with regulations, EPA said the Agency would take other actions to address perchlorate, including research into perchlorate levels in bodies of water after fireworks displays, and would continue to consider if perchlorate should be added to future Contaminant Candidate Lists for potential regulation under the SDWA.
EPA Issued Guidance on Exemptions from TSCA Formaldehyde Rule for Composite Wood and Proposed Technical Updates to Emission Standards
In the March 29, 2022 issue of the Federal Register, EPA published a proposal to update the Formaldehyde Emission Standards for Composite Wood Products regulations under TSCA.26 The proposed revisions update voluntary consensus standards that the regulations incorporate by reference; the updates reflect the current versions used by regulated entities and industry stakeholders. The proposed rule also would provide for remote inspections by third-party certifiers in the event of unsafe conditions such as the pandemic. EPA also proposed technical corrections, including to clarify data requirements for emission standards, to clarify timing for testing panels after production and to align with California Air Resources Board requirements. The comment period for the proposed rule closed on April 28, 2022. On March 31, EPA released additional guidance for laminated product producers and stakeholders on submitting petitions to request exemptions from the hardwood plywood formaldehyde emission standards and certain third-party certification requirements.27 Producers of laminated products will become subject to the emission standards for hardwood plywood on March 22, 2024 unless they meet one of the current exemptions for certain laminated products made with resins that emit no or ultra-low amounts of formaldehyde or EPA grants a rulemaking petition requesting an exemption. The guidance provides information on what should be included in such a petition.
EPA Released Strategic Plan for 2022–26
On March 28, 2022, EPA released its strategic plan for FY 2022–FY 2026.28 In the Chemicals sections, EPA stated that it will focus on meeting statutory requirements and mandatory deadlines and ensuring that its chemical reviews are efficient, effective and transparent to EPA’s stakeholders. EPA pledges to “ensure that decisions stemming from chemical reviews are transparent, use methods and tools based on the weight of scientific evidence, are consistent with the best available scientific information, and are reasonable and consistent with the intended use of the information.” EPA listed some concrete goals that it plans to achieve by the end of FY 2026: complete at least eight TSCA risk evaluations for high-priority substances annually within statutory timelines; initiate all TSCA risk management actions within 45 days of the completion of a final existing chemical risk evaluation; and review 90 percent of past risk mitigation requirements for TSCA new chemical substances decisions compared to the FY 2021 baseline of none. EPA also plans to update and strengthen the standards of the Safer Choice program. EPA plans to conduct outreach to federal, tribal, state, and local government procurement officials, and institutional and industrial purchasers to promote awareness of the program and to work to make certified products more widely available to people of color and low-income communities. EPA also will update the Safer Chemical Ingredients List (such as in the recent announcement about the elimination of some PFAS from the list). The release of the strategic plan was timed to coincide with the release of the Administration’s budget proposal for FY 2023.29 Although the exact details have yet to be released, the budget would provide $124 million and 449 FTE for TSCA efforts to further implementation of and compliance with the 2016 amendments to TSCA. These resources are intended to support EPA-initiated chemical risk evaluations and issuing TSCA risk management regulations in accordance with the statutory timelines.
EPA Issued Warning on PFAS Contamination and Removed Two PFAS from Safe Chemical Ingredients List
On March 16, 2022, EPA released an open letter to the fluorinated high-density polyethylene (HDPE) industry regarding the issue of PFAS forming and migrating from fluorinated polyolefins during certain types of fluorination.30 This contamination was first noted in HDPE containers for storing and transporting pesticides. The letter stated that EPA considers this formation of PFAS to be a manufacturing of PFAS and considers such manufacturing to be a significant new use under TSCA. EPA’s letter also stated that “LCPFAC chemical substances that are byproducts of the manufacturing process for fluorinated polyolefins do not meet the requirements of the byproducts exemption at 40 CFR § 721.45(e) and are subject to significant new use notice requirements.” EPA also announced that it would remove two PFAS from the Safer Chemical Ingredients List. The list is pertinent to the Agency’s “Safer Choice” initiative by which certain products can be labeled showing their qualification under that program.
EPA Released Draft Collaborative Research Plan for Modernization of TSCA New Chemicals Program
In early March 2022, EPA released a draft collaborative research plan for the Agency’s efforts to “modernize” and “bring innovative science” to the TSCA new chemicals program.31 The plan describes a multiyear program that would be a partnership between EPA’s Office of Pollution Prevention and Toxics (OPPT) and EPA’s Office of Research and Development, along with other federal institutions. The proposed research would focus on five areas: (1) Update and Refine Chemical Categories; (2) Develop and Expand Databases Containing TSCA Chemical Information; (3) Develop and Refine QSAR (Quantitative Structure-Activity Relationships) and Predictive Models for Physical-Chemical Properties, Environmental Fate/Transport, Hazard, Exposure, and Toxicokinetics; (4) Explore Ways to Integrate and Apply NAMs (“new approach methodologies” that avoid use of intact animals) in New Chemical Assessments; and (5) Develop a TSCA New Chemicals Decision Support Tool to Modernize the Process Within OPPT. EPA held public meetings to discuss the initiative. The comment period on the draft research plan closed on May 10, 2022.
State Regulatory & Legislative Action
California Starts Rulemaking Process for Listing Tires with 6PPD as Priority Product
On May 20, 2022, the California Department of Toxic Substances Control (DTSC) initiated a public comment period on proposed regulations that would list motor vehicle tires containing N-(1,3-dimethylbutyl)-N′-phenyl-p-phenylenediamine (6PPD) as a Priority Product in the Safer Consumer Products program.32 The comment period is open through July 5, 2022. DTSC determined that there was a potential for humans and the environment to be exposed to 6PPD and its reaction product 6PPD-quinone during the manufacturing, normal use and end-of-life of motor vehicle tires and that these exposures could potentially contribute to or cause significant or widespread adverse impacts. If motor vehicle tires containing 6PPD are listed as a Priority Product, manufacturers must notify DTSC and decide whether to perform an Alternatives Analysis to determine how to reduce exposures to 6PPD in the product.
California Listed Treatments Containing PFAS for Use on Converted Textiles or Leathers as Priority Product
DTSC announced on April 1, 2022 that it had finalized a regulation listing treatments containing PFAS for use on converted textiles or leathers as a Priority Product.33 By May 31, 2022, domestic and foreign manufacturers of such treatments are required to submit a Priority Product Notification naming all such products that are sold in California. Manufacturers then have the option to submit either a Chemical Removal Intent/Confirmation Notification; Product Removal Intent/Confirmation Notification; Product-Chemical Replacement Intent/Confirmation Notification; or Preliminary Alternatives Analysis Report or alternate reporting options. If a manufacturer fails to comply, the compliance obligation may shift to importers or retailers if they are notified by DTSC.
Maryland Enacts Law Restricting PFAS in Firefighting Foam, Rugs and Food Packaging
On April 21, 2022, Maryland Governor Larry Hogan signed legislation (SB 273) that restricts PFAS-containing firefighting foam, rugs and carpets, and food packaging. The law prohibits use, manufacture, knowing sale, offering for sale, distribution for sale, or use of Class B firefighting foams containing intentionally added PFAS on and after January 1, 2024. The law provides for some exceptions, including for use of such foam at airports, ports, refineries, or chemical plants through September 30, 2024, and at certain bulk liquid storage or crude petroleum distribution facilities through December 31, 2027. Where exceptions to the prohibition apply, the law institutes requirements to prevent releases to the environment. The law also requires written notice to purchasers at the time of sale for personal protective equipment for firefighting that contains PFAS and provides that the Department of the Environment shall take back PFAS-containing firefighting foam from fire departments and dispose of it properly. It also prohibits manufacture and knowing sale, offering for sale, distribution for sale or use of rugs or carpets or food packages or food packaging components intended for direct food contact to which PFAS has been intentionally added. Those prohibitions begin on January 1, 2024. In addition to the restrictions on PFAS-containing products, the law directs the Department of the Environment to submit a report on the presence of PFAS in waters of the state and directs the Department of the Environment and the Department of Health to prepare a PFAS Action Plan that identifies strategies, actions and funding alternatives to minimize environmental exposure to PFAS, minimize future releases of PFAS, address historical releases of PFAS, assess environmental justice, health equity, and PFAS chemical contamination concerns, and educate Maryland residents about risks associated with PFAS.
Ohio Law Bars Use of PFAS-Containing Firefighting Foam for Training and Testing
A law signed by Ohio Governor Mike DeWine in March 2022 (HB 158) prohibits the use of Class B firefighting foams containing intentionally added PFAS for training or testing purposes, unless use for testing purposes is required by law and the testing facility has implemented appropriate measures to prevent releases into the environment. The law explicitly states that it does not restrict manufacture, sale or distribution of Class B firefighting foams containing intentionally added PFAS or the use of such foams in emergency firefighting or fire prevention operations.
Washington Enacts Law Authorizing Accelerated Action on PFAS in Certain Products
On March 31, 2022, Governor Jay Inslee signed a bill (HB 1694) that provides that any product identified in the November 2021 PFAS Chemical Action Plan34 as a source of or use of PFAS may be considered a “priority consumer product” under Washington’s Safer Products law without the need for further administrative action. For such products, the Department of Ecology may determine regulatory actions and adopt rules to implement the regulatory determinations. The law also establishes firefighting personal protective equipment as a priority consumer product and sets deadlines of June 1, 2024 for determining an initial set of regulatory actions for all PFAS priority consumer products identified in the new law and December 1, 2025 for adoption of rules to implement those regulatory determinations. Another provision of the law gives the Department of Ecology authority to order manufacturers to submit a notice containing certain information relevant to the identification of priority consumer products.
Pub. Emp’ees for Env’t Responsibility v. EPA, No. 1:22-cv-01173-TNM (DDC filed Apr. 28, 2022).
Pub. Emp’ees for Env’t Responsibility v. EPA, No. 1:22-cv-00842 (DDC filed Mar. 30, 2022).
Air-Conditioning, Heating, & Refrigeration Inst. v. EPA, No. 22-1062 (DC Cir. filed Apr. 11, 2022).
87 Fed. Reg. 12875 (Mar. 8, 2022).
86 Fed. Reg. 894(Jan. 6, 2021).
See 86 Fed. Reg. 14398 (Mar. 16, 2021).
86 Fed. Reg. 51823 (Sept. 17, 2021).
See News Release, EPA, New Toxics Release Inventory Data Show Decline in Releases of Certain Toxic Chemicals (Mar. 3, 2022).
Nat’l PFAS Contamination Coal. v. EPA, No. 1:22-cv-00132 (DDC Apr. 5, 2022)
See Proposed Consent Decree in Breast Cancer Prevention Partners, et al. v. EPA et al., No. 4:21-cv-07360-HSG (ND CA), Docket ID EPA-HQ-OGC-2022-0343.
See Breast Cancer Prevention Partners v. EPA, No. 4:21-cv-07360 (ND Cal.).
Ctr. for Env’t Health v. Nishida, 2022 US Dist. LEXIS 83553, No. 4:21-cv-01535 (ND Cal. May 9, 2022).
Alaska Cmty. Action on Toxics v. EPA, No. 21-70168 (9th Cir.); see 86 Fed. Reg. 880 (Jan. 6, 2021).
EPA Publishes 2020 Chemical Data Reporting Information, EPA (last updated May 12, 2022).
Updates to Confidential Status of Chemicals on the TSCA Inventory, EPA (last updated Nov. 4, 2021).
87 Fed. Reg. 29078 (May 12, 2022).
87 Fed. Reg. 27060 (May 6, 2022).
87 Fed. Reb. 21706 (Apr. 12, 2022).
87 Fed. Reg. 31814 (May 25, 2022).
News Release, EPA, EPA Issues Additional Test Orders to Support Risk Evaluations of Eight Chemicals under TSCA (Mar. 24, 2022).
87 Fed. Reg. 22208 (Apr. 14, 2022).
87 Fed. Reg. 19539 (Apr. 4, 2022).
See Pub. L. No. 116-283, §§ 261–267, 134 Stat. 3388, 3500–02.
News Release, EPA, EPA Announces Plan to Protect the Public from Perchlorate in Drinking Water (Mar. 31, 2022).
85 Fed. Reg. 43990 (July 21, 2020).
87 Fed. Reg. 17963 (Mar. 29, 2022).
News Release, EPA, EPA Releases Petition Guidance for Formaldehyde Emission Standards (Mar. 31, 2022).
See EPA Strategic Plan, EPA (last updated Apr. 20, 2022).
See President’s Budget, The White House (last visited May 24, 2022).
See News Release, EPA, EPA Continues to Take Actions to Address PFAS in Commerce (Mar. 16, 2022).
See EPA, Modernizing the Process and Bringing Innovative Science to Evaluate New Chemicals Under TSCA (Mar. 9, 2022).
Listing Motor Vehicle Tires Containing N-(1,3-Dimethylbutyl)-N′-phenyl-p-phenylenediamine (6PPD) as a Priority Product, DTSC (last visited May 24, 2022).
See Final Regulation: Listing Treatments Containing Perfluoroalkyl or Polyfluoroalkyl Substances for Use on Converted Textiles or Leathers as a Priority Product, DTSC (last visited May 24, 2022).
Wash. Dep’t of Ecol., Pub. 21-04-048, Per- and Polyfluoroalkyl Substances Chemical Action Plan (Nov. 2021).