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June 28, 2023

The Chemical Compound — June 2023

Legal Updates on High Priority Chemicals and Important Chemical-Regulatory Developments
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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, jurisdictions outside the U.S., and potential litigants. This includes emerging contaminants such as 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, and regulation.

Table of Contents

Federal Developments

  • Regulatory Developments
  • Legislative Developments

Litigation

  • Challenge to PFAS Test Order Held in Abeyance After EPA Granted Exemption to Fire-Fighting Foam Maker
  • Mississippi Nonprofit Challenged TSCA New Chemical Authorization for Fuel Oil
  • North Carolina Federal Court Dismissed Challenge to EPA’s Decision on PFAS Testing Petition
  • Federal Court Dismissed Citizen Suit Alleging Plastic Packaging Company Violated TSCA by Producing PFAS; DOJ Enforcement Action Still Pending

State Regulatory and Legislative Action

  • California
  • Maine
  • Maryland
  • Minnesota
  • New York
  • NEWMOA (Northeast Waste Management Officials’ Association Inc.)
  • Oregon
  • Washington

Federal Developments

Regulatory Developments

EPA Proposes Amendments to TSCA Section 5 Regulations, Including End to Low Volume and Low Release and Exposure Exemptions for PFAS

On May 26, 2023, EPA published a proposed rule to amend its regulations for new chemicals review.1 The proposed amendments would update the regulations to align them with the 2016 TSCA amendments, including by specifying that EPA must make one of five possible risk determinations on each premanufacture notice (PMN), significant new use notice (SNUN), or microbial commercial activity notice prior to a submitter commencing manufacture or processing of a chemical substance that is the subject of such a notice. The proposed changes also would specify actions EPA must take in connection with such determinations. The proposed rule is also intended to improve the efficiency of EPA’s reviews of PMNs, SNUNs, and certain exemption notices by incorporating provisions that clarify the level of detail submitters must include in such notices and by specifying procedures for PMNs and SNUNs that are incomplete, have errors, or are amended during the review period. The detailed information requirements address physical and chemical properties and environmental fate characteristics of a chemical substance; categories of use; information related to how a chemical substance will be manufactured, processed, or used; worker exposure; potential environmental releases; and optional pollution prevention information. The proposed amendments also would make PFAS categorically ineligible for low volume exemptions (LVE) and low release and exposure exemptions (LoREXs). In addition, the proposal would codify a 1999 policy that makes certain persistent, bioaccumulative, and toxic chemical substances ineligible for the LVE and LoREX. Other changes would require EPA approval of an exemption notice before manufacture may commence and allow EPA to inform LVE and LoREX holders when a chemical substance subject to an exemption becomes subject to a significant new use rule and the chemical identity is confidential. The proposed rule also would allow submitters of TSCA Section 5 notices to informally request suspensions of the review period for up to 30 days, either orally or by email. The deadline for comments on the proposed rule is July 25, 2023.

EPA Proposed Methylene Chloride and Perchloroethylene Risk Management Rules Under TSCA

On May 3, 2023, EPA published a proposed rule pursuant to TSCA Section 6(a) to address risks identified in its risk evaluation for methylene chloride and in the revised risk determination issued in November 2022.2 In the revised risk determination, EPA determined that methylene chloride, as a whole chemical substance, presents an unreasonable risk of injury to health under the conditions of use. The proposed risk management rule would prohibit manufacture, processing, and distribution of methylene chloride for all consumer uses and for most industrial and commercial uses. EPA also would prohibit retailers from distributing methylene chloride and methylene chloride-containing products. For 10 conditions of use that the rule would allow to continue, EPA would require a workplace chemical protection program (WCPP), which would include inhalation exposure concentration limits and related monitoring. The 10 conditions of use that would be allowed to continue are domestic manufacturing; import; processing as a reactant; processing for incorporation into a formulation, mixture, or reaction product; processing in repackaging; processing in recycling; industrial and commercial use as a laboratory chemical; industrial or commercial use for paint and coating removal from safety-critical, corrosion-sensitive components of aircraft and spacecraft by federal agencies and their contractors; industrial or commercial use as a bonding agent for acrylic and polycarbonate in mission-critical military and space vehicle applications, including in the production of specialty batteries for such applications by federal agencies and their contractors; and disposal. The proposed rule provides for a 10-year, time-limited exemption under TSCA Section 6(g) for paint and coating removal from safety-critical, corrosion-sensitive components of commercial aircraft and aerospace vehicles due to the significant disruptive impact that a prohibition would have on critical infrastructure and the absence of technically feasible alternatives. The proposed rule also provides for a 10-year TSCA Section 6(g) exemption for emergency use in furtherance of the mission of the National Aeronautics and Space Administration (NASA) for certain conditions of use. A WCPP would be required for uses allowed pursuant to TSCA Section 6(g) exemptions. In addition, the proposed rule would establish recordkeeping and downstream notification requirements for conditions of use that are not prohibited. The comment period for the proposed rule closes on July 3, 2023.

On June 7, 2023, EPA Administrator Michael Regan signed a proposed TSCA Section 6(a) risk management rule for perchloroethylene (PCE).3 The rule was published in the Federal Register on June 16. The proposed rule would prohibit all consumer uses and most industrial and commercial uses, as well as the manufacture (including import), processing, and distribution in commerce of PCE for the prohibited uses. In addition, the rule would phase out the commercial use of PCE for dry cleaning and spot cleaning over 10 years. The proposed rule would provide that products containing PCE at concentrations less than 0.1% by weight are not subject to the prohibitions. For 16 uses that are allowed to continue, the proposed rule would require a workplace chemical protection program, which would include requirements to meet an inhalation exposure concentration limit and to prevent direct dermal contact. For laboratory use, the proposed rule would impose prescriptive workplace controls. The proposed rule also includes recordkeeping and downstream notification requirements. Certain critical or essential emergency uses of PCE would be allowed to continue for 10 years pursuant to TSCA Section 6(g): emergency use of PCE by NASA where there are no technically and economically feasible safer alternatives available during the emergency and emergency use of PCE in furtherance of NASA’s mission for industrial and commercial use as a solvent for cold or wipe cleaning. EPA also requested comment on an appropriate process for handling situations where otherwise prohibited uses with implications for national security or critical infrastructure as it relates to federal agencies are identified after the finalization of the rule. The deadline for comments on the proposed rule is August 15, 2023.

Final TSCA Reporting and Recordkeeping Rules for PFAS and Asbestos Undergo White House Review

On May 25, 2023, OIRA received the long-delayed final rule on recordkeeping and reporting requirements for PFAS under TSCA Section 8(a)(7), which set a January 1, 2023 deadline for EPA to promulgate a rule requiring each person who has manufactured any PFAS in any year since January 1, 2011 to submit a report to EPA.4 The scope and potential economic impacts of the regulation as proposed have been the subject of considerable public comment and concern, with estimates of the economic burdens of the rule having been updated following more careful consideration of its potential impacts on small businesses. The costs to industry were revised by EPA and are estimated to approach nearly US$1 billion. In its spring 2023 regulatory agenda, EPA estimated that a final rule will be promulgated in September 2023.5

On June 23, 2023, OIRA completed its review of a final EPA rule that will establish recordkeeping and reporting requirements for asbestos under TSCA Section 8(a).6 EPA is required to promulgate this rule pursuant to a June 2021 settlement agreement in litigation that challenged EPA’s failure to collect information about asbestos-containing articles, asbestos impurities in products, and asbestos processing.7 In April and May 2023, four meetings with stakeholders were held in conjunction with OIRA’s Executive Order 12866 regulatory review. In its spring 2023 regulatory agenda, EPA estimated that a final rule would be promulgated in June 2023.8

EPA Announced Plan to Extend Compliance Date for DecaBDE Prohibition at Nuclear Facilities Alongside Enforcement Settlement With Safety Power Cable Manufacturer

On May 3, 2023, EPA announced that it planned to extend the January 6, 2023 compliance date for a prohibition on processing and distribution of decabromodiphenyl ether (decaBDE) for use in wire and cable insulation in nuclear power generation facilities, and decaBDE-containing wire and cable insulation.9 EPA established the January 6, 2023 compliance date in a final rule promulgated at the end of the Trump administration in January 2021 pursuant to TSCA Section 6(h), a provision added by the 2016 TSCA amendments that provided for expedited regulation of certain persistent, bioaccumulative, and toxic (PBT) substances.10 EPA said it became aware in late 2022 that RSCC Wire & Cable LLC (RSCC) — the only known supplier of decaBDE-containing wire and cable that had been qualified in accordance Nuclear Regulatory Commission (NRC) requirements — would not be able to meet the compliance date because it was unable to fully transition to a decaBDE-free alternative. Citing the risk of potential impacts on nuclear power plants, EPA said it was issuing a temporary Enforcement Statement that provides that EPA does not intend to pursue enforcement for violations of the prohibition as long as the entities involved are diligently working to qualify their alternative components in accordance with NRC regulations and guidance. EPA also plans to propose a rule in the fall of 2023 to address the compliance deadline; it is unclear whether the proposal will be incorporated in EPA’s broader revisiting of the terms of all five Section 6(h) rules issued in January 2021 for certain PBT substances. In EPA’s most recent regulatory agenda, the Agency set a timetable of November 2023 for proposing amendments to the PBT rules. In addition, EPA announced a settlement with RSCC to resolve violations of the January 2021 prohibition on import of decaBDE-containing wire and cable, which took effect on March 8, 2021. The settlement requires RSCC to pay a $253,741 civil penalty and allows RSCC to manufacture, export, process, use, and distribute its existing stocks of raw decaBDE, compounded decaBDE, and decaBDE-containing articles under certain conditions intended to protect health and the environment.

Other TSCA Section 6 News on 1,4-Dioxane, Carbon Tetrachloride, and Asbestos

Draft supplement to 1,4-dioxane risk evaluation coming soon. On March 23, 2023, EPA published notice that the Agency was seeking nominations of experts to serve as ad hoc reviewers to assist the Science Advisory Committee on Chemicals with the peer review of the draft supplement to the 1,4-dioxane risk evaluation. The notice said EPA planned to release the draft supplement for public review and comment in June 2023,11 though an EPA official said in remarks in mid-June that the supplement was expected in approximately six weeks.12 In June, EPA also opened a two-week public comment period on the candidates under consideration to serve as ad hoc reviewers.13 The SACC will meet in September 2023 to consider and review the draft supplement. EPA issued the final risk evaluation for 1,4-dioxane in December 2020 and subsequently determined that a supplement was needed to consider “critical exposure pathways” not previously assessed, including additional conditions of use in which 1,4-dioxane is present as a byproduct in industrial processes and commercial products and additional general population exposures to 1,4-dioxane releases to ambient surface water and groundwater, ambient air, and land.

OMB review began for carbon tetrachloride. On May 15, 2023, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) received from EPA a proposed TSCA Section 6(a) risk management rule for carbon tetrachloride. OIRA review was still pending as of June 11.

EPA sought comment on additional data regarding chrysotile asbestos use. On March 16, 2023, EPA announced that it was releasing information on chrysotile asbestos that the Agency received after it published a proposed risk management rule in April 2022.14 The additional data concerns chrysotile asbestos diaphragms used in the chlor-alkali industry and chrysotile asbestos-containing sheet gaskets used in chemical production. EPA said it might rely on the information as it develops a final rule to inform its consideration of compliance dates for a prohibition on these uses. Commenters on the proposed rule raised concerns that the proposed two-year timeline for the prohibition did not allow enough time for the chlor-alkali industry to transition from use of asbestos-containing diaphragms and that there could be public health impacts due to potential disruption of drinking water disinfection supplies due to impacts on chlorine production. EPA requested comments on how to consider the new information with respect to compliance dates, as well as comments on other information related to workplace monitoring and workplace safety.

EPA Released Proposed Principles for Addressing Cumulative Risks Under TSCA

On February 23, 2023, EPA published notice of its release of two draft documents concerning cumulative risk assessment under TSCA: (1) a set of proposed principles for evaluating cumulative risks for chemical substances under TSCA and (2) a detailed proposed approach for applying those principles to phthalates currently undergoing individual risk evaluations pursuant to TSCA Section 6.15 EPA said the proposed approach for the cumulative risk assessment of phthalates follows many of the recommendations made by the National Research Council of the National Academies of Science in a 2008 report. EPA convened a meeting of the SACC on May 8-11, 2023 for review of the documents. As authority for consideration of cumulative risks under TSCA, EPA cited provisions of TSCA Section 26 that require consideration of reasonably available information, consistent with the best available science, and that require that decisions be based on the weight of the scientific evidence. Issues on which EPA sought comment from the SACC included chemical grouping for purposes of cumulative risk assessment and possible approaches for developing a cumulative hazard and exposure assessment for phthalates undergoing TSCA Section 6 risk evaluations.

EPA Published First National Review of Chemical Data Reporting, Including for PFAS and Other High-Priority Substances

On March 31, 2023, EPA released the Agency’s first Chemical Data Reporting (CDR) National Review (the Review), which analyzes chemical exposure-related data submitted to EPA regarding existing chemical substances listed on the TSCA Inventory during the 2020 CDR reporting cycle, which covered activities from 2016 to 2019.16 The 2020 CDR National Review also provides an interactive trend analysis for data reported for CDR reporting cycles 2012, 2016, and 2020. EPA noted that the Review includes maps showing CDR reporting sites by state and figures with production volume and site trends, as well as an interactive map that incorporates data from EJ Screen, EPA’s environmental justice mapping and screening tool. The Review analyzed the CDR data as three general chemical groups: all chemicals, TSCA risk evaluation chemicals, and PFAS. Of the 8,649 chemicals reported in 2020, 33 were TSCA risk evaluation chemicals and 180 were PFAS. Trends noted by EPA included that the number of sites manufacturing or importing TSCA risk evaluation chemicals has increased by 40% while manufactured and imported volumes have remained consistent over the past decade. For PFAS, 57 sites reported PFAS for the 2020 reporting cycle, with Georgia, Pennsylvania, and New Jersey having the most sites reporting PFAS (five to six sites in each of these states). EPA identified 219 PFAS across three reporting cycles (180 for 2020, 176 for 2016, and 109 for 2012).

EPA Issued Final TSCA Regulations for Confidential Business Information

On June 7, 2023, EPA published a final rule amending regulations for assertion and treatment of confidential business information (CBI) claims under TSCA.17 EPA intends for the amended regulations to increase transparency, modernize the reporting and review procedures for CBI, and align the regulations with the 2016 amendments to TSCA. The final rule consolidates most procedural requirements for asserting and maintaining CBI claims under TSCA in a new 40 C.F.R. Part 703 regulation, with some more specific provisions found in 40 C.F.R. Part 2 or other TSCA-specific regulations. The amended regulations set forth substantiation requirements applicable at the time of submission, requirements to provide certification statements and generic names when making confidentiality claims, treatment of information used for TSCA purposes that EPA has authority to require under TSCA but has received via other means, and maintenance and withdrawal of CBI claims. The final rule requires, with very limited exceptions, that TSCA submissions with CBI claims be submitted electronically, including, for the first time, Section 8(e) reports, Section 12(b) export notifications, and Section 4 polymer exemption notices. The final rule’s criteria for EPA to use in making a confidentiality determination are based on requirements in TSCA Section 14(b)-(c) and the Agency’s pre-existing criteria in 40 C.F.R. § 2.208. EPA decided that it was not necessary to include in the final rule a proposed reconsideration process for denied CBI claims. Instead, submitters may contact EPA about any concerns using information in the final CBI determination letter prior to filing any judicial appeal.

EPA Denied Petition Seeking Testing of PVA Used in Plastic Films in Dishwasher and Laundry Pods

On April 21, 2023, EPA denied a petition submitted pursuant to TSCA Section 21 requesting that EPA require health and effects testing of polyvinyl alcohol (PVA), as used in plastic film in consumer-packaged goods and in dishwasher and laundry pods and sheets.18 The petitioners also requested that EPA change the status of PVA on the Safer Chemical Ingredients List (SCIL) in the EPA Safer Choice Program from a “green circle” (indicating that a chemical has been verified to be of low concern based on experimental and modeled data) to a “gray square” (indicating that a chemical will not be acceptable for use in products that are candidates for the Safer Choice label and that currently labeled products must reformulate) until testing was completed. For the portion of the petition that requested that EPA issue a test order or rule pursuant to Section 4 of TSCA, EPA found that the petitioners did not provide the facts necessary for the Agency to determine that existing information and experience are insufficient and that testing was necessary to develop such information. EPA also found that the petitioners’ request that EPA require third-party oversight of the testing was outside the scope of the Agency’s statutory authority under Section 4. EPA responded to the portion of the petition that asked EPA to change the status of PVA on the SCIL under the Administrative Procedure Act (instead of applying the criteria for a decision on a TSCA Section 21 petition). EPA found that the petition did not demonstrate that PVA fails to meet Safer Choice criteria and that data reviewed by EPA indicated that the PVA structures allowed for use in Safer Choice-certified products met the program’s criteria.

EPA Released Draft National Strategy to Prevent Plastic Pollution

On May 2, 2023, EPA published notice of the availability of a Draft National Strategy to Prevent Plastic Pollution (the Draft Strategy) to reduce plastic waste and other post-consumer materials in waterways and oceans.19 Section 301 of the Save Our Seas 2.0 Act directed EPA to prepare the strategy.20 The Draft Strategy identifies actions to eliminate the release of plastic waste from land-based sources into the environment by 2040 and supports EPA’s “National Recycling Goal” to increase the U.S. recycling rate to 50% by 2030. The Draft Strategy promotes “circular economy” policies while excluding processes that convert solid waste to fuels, fuel ingredients, or energy from being considered as “recycling practices.” EPA has identified three main objectives in the Draft Strategy: (1) reduce pollution during plastic production; (2) improve post-use materials management; and (3) prevent trash and micro/nanoplastics from entering waterways and remove escaped trash from the environment. Under each objective, EPA has proposed actions that the Agency believes support the United States’ shift to a circular approach that is restorative or regenerative by design, enables resources to maintain their highest value for as long as possible, and aims to eliminate waste in the management of plastic products. EPA said it was aware of concerns regarding impurities that may be present in pyrolysis oils generated from plastic waste in chemical recycling. To address these concerns, EPA said it planned to require testing for impurities in new pyrolysis oil chemicals submitted for review under TSCA Section 5, as well as ongoing testing “to ensure there is no variability in the plastic waste stream that is used to generate the pyrolysis oil.” The deadline for commenting on the Draft Strategy is June 16, 2023.

Updates on EPA’s PFAS Roadmap Implementation and Other Federal PFAS Actions

Proposed drinking water standards for six PFAS. On March 14, 2023, EPA issued a preliminary regulatory determination to regulate perfluorohexane sulfonic acid (PFHxS), hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt, perfluorononanoic acid (PFNA), and perfluorobutane sulfonic acid (PFBS), and mixtures of these PFAS as contaminants under the Safe Drinking Water Act.21 EPA also proposed a National Primary Drinking Water Regulation and health-based Maximum Contaminant Level Goals (MCLGs) for the four PFAS, as well as for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), for which EPA issued a final regulatory determination in March 2021. EPA proposed to set the MCLGs for PFOA and PFOS at zero. EPA proposed Maximum Contaminant Levels (MCLs) of 4.0 nanograms per liter or parts per trillion (ppt) for PFOA and PFOS. For the other four PFAS and mixtures containing them, EPA proposed a Hazard Index (HI) of 1.0. The determination of whether the HI is exceeded would be based on a calculation that would involve first dividing the measured level of each of the four PFAS in drinking water by a Health Based Water Concentration and then adding the ratios for each PFAS together. The proposed rule said that it proposed an HI of 1.0 because it represented a level at which no known or anticipated adverse effects on the health of persons is expected to occur and which allows for an adequate margin of safety. EPA said it had determined that it was feasible to set the MCLs for the four PFAS and mixtures containing them as an HI of unitless 1.0. The comment deadline for the proposed action was May 30, 2023.

State of the science report on PFAS. On the same day that the proposed drinking water standards were released, the White House Office of Science and Technology Policy released a “state of the science report” as a step towards implementation of a mandate established by the National Defense Authorization Act for Fiscal Year 2021 to coordinate federal PFAS research.22 The report provides a high-level overview of research on PFAS as a chemical class by addressing the strategic areas of removal and destruction, safer alternatives, sources and pathways of exposure, and toxicity. It identifies data gaps and research opportunities for the federal government. The PFAS Strategy Team of the National Science and Technology Council will develop a strategic plan to address the data gaps.

Advance notice of proposed rulemaking regarding potential designation of more PFAS, including potential categorical designations for PFAS, as CERCLA hazardous substances. On April 13, 2023, EPA published an advance notice of proposed rulemaking (ANPRM) seeking data and public input to inform the Agency’s consideration of potential hazardous substance designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of seven individual PFAS and their salts and structural isomers and precursors to PFOA, PFOS, and the seven PFAS.23 EPA previously proposed to designate PFOA and PFOS as hazardous substances.24 The seven individual PFAS under consideration are PFBS, perfluorohexanesulfonic acid (PFHxS), PFNA, HFPO-DA, perfluorobutanoic acid (PFBA), perfluorohexanoic acid (PFHxA), and perfluorodecanoic acid (PFDA). The Agency also is considering whether a category or certain subcategories of PFAS should be designated as hazardous substances. For additional information on the ANPRM, see our April blog post.

Verification analysis for study that found PFAS in pesticide products. On May 30, 2023, EPA released the results of its verification analysis of a study published in September 2022 that reported the presence of PFOS in six of 10 pesticide products tested by the study author.25 EPA’s analyses, which used both the test method used in the September 2022 study and a method developed by EPA to measure PFAS in pesticide samples containing surfactants and non-volatile oils, detected no PFOS or any of 28 additional PFAS that it screened for in any of the products. EPA said its equipment and methodology would have shown PFAS detections if PFAS was present because its level of detection was 2,500 times more sensitive than the level of detection reported by the equipment used by the study author.

EPA Inspector General Issued Report on January 2021 PFBS Toxicity Assessment

On March 7, 2023, the EPA Office of Inspector General (OIG) issued a report finding that EPA had not followed its typical review and clearance process for the development and publication on January 19, 2021 of a toxicity assessment of PFBS.26 The report said a political appointee had directed that a “last-minute review” be conducted that resulted in “significant changes,” including replacement of single toxicity values with “unprecedented” toxicity ranges that could have been applied by regulated entities to select actions that were less protective of human health. The OIG report made several recommendations for updates to policies and procedures to address concerns regarding scientific integrity and information quality. First, the Office of Research and Development should clarify if and when comments expressing scientific disagreement can be expressed; make clear if and when toxicity ranges are acceptable; and use OIG as a resource for high-profile scientific integrity concerns. Second, the Office of Mission Support should update policies and procedures on environmental information quality to require additional quality assurance reviews. Third, the Deputy Administrator should “strengthen the EPA’s culture of scientific integrity, transparency, and accountability of political leadership actions when changes occur as a result of policy decisions.” The OIG report said that EPA disagreed with all the recommendations and that they remained unresolved.

EPA Released IRIS Final Assessment for PFHxA and Draft Assessment for PFDA, as Well as Protocols for Ethylbenzene and Napthalene

On April 10, 2023, EPA released the final Toxicological Review of PFHxA and Related Salts through its Integrated Risk Information System (IRIS) program.27 The assessment did not include an inhalation assessment or derive a reference concentration because all the animal studies of PFHxA exposure examined only the oral exposure route. In addition, the lack of data on carcinogenicity precluded an assessment of PFHxA’s carcinogenic potential. The assessment derived chronic and subchronic oral reference doses for noncancer effects of 5 × 10⁻4 mg/kg-day. The overall confidence in the reference doses is medium.

On April 10, EPA also released a draft IRIS Toxicological Review of PFDA and related salts.28 The draft assessment derived chronic and subchronic reference doses of 4 × 10−10 mg/kg-day based on decreased serum antibody concentrations in children and decreased birth weight. The overall confidence in the reference doses is medium. No studies examining toxicity in humans or experimental animals following inhalation exposure were available, and no acceptable models were available to support route-to-route extrapolation, so no reference concentration was derived. In addition, EPA concluded there was inadequate information to assess carcinogenic potential. The deadline for comments on the draft assessment is June 9, 2023.

Earlier in the year, the IRIS program issued protocols for assessments of naphthalene29 and ethylbenzene.30

Legislative Developments

Senator Lummis Introduces Bills to Exempt Certain Sectors from PFAS Liability Under CERCLA

On May 3, 2023, Senator Cynthia Lummis (R-WY) introduced five bills that would exempt certain entities in five sectors from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for costs arising from the release of PFAS.31 The Agriculture PFAS Liability Protection Act of 2023 would exempt persons “engaged in the production or harvesting of agricultural products,” as defined in the Agricultural Marketing Act of 1946. The Resource Management PFAS Liability Protection Act of 2023 would preclude liability for certain solid waste management facilities and compost processing facilities if the release of PFAS by such an entity resulted from the disposal or management of any residuals or byproduct of municipal solid waste in accordance with a permit; the disposal or management of biosolids consistent with the Clean Water Act; or the application or processing of compost in accordance with state law. The Water Systems PFAS Liability Protection Act would provide liability protection for the operators of water and wastewater treatment facilities. The Fire Suppression PFAS Liability Protection Act would exempt entities that have a fire suppression system installed or in use that uses a PFAS-containing aqueous film forming foam (AFFF) in accordance with applicable federal, state, and local fire codes and the most recently approved engineering standards. The exemption would not apply for entities that continue to use an AFFF agent more than five years after approved engineering standards are updated to no longer require use of AFFF. The Airports PFAS Liability Protection Act would shield certain airport entities from liability for releases resulting from use of an AFFF if the use was required by the Federal Aviation Administration (FAA) and was carried out in accordance with FAA standards and guidance. The liability protections in the five bills do not apply if an entity acted with gross negligence or willful misconduct. Seven other Republican senators co-sponsored the bills.

House Committee Advanced Bill to Facilitate New Chemical Reviews for “Critical Energy Resources”

A bill introduced by Representative John R. Curtis (R-UT) on February 24, 2023 would amend TSCA Section 5(a) by adding a provision requiring EPA to “take into consideration economic, societal, and environmental costs and benefits, notwithstanding any requirement of this section to not take such factors into consideration” when making determinations regarding chemical substances that are “critical energy resources.”32 The legislation, titled the “Elimination of Future Technology Delays Act of 2023,” would define “critical energy resource” as an energy resource that is “essential to the energy sector and energy systems of the United States” and for which the supply chain is “vulnerable to disruption.” Under the bill’s provisions, if EPA failed to make a determination on a new chemical substance or significant new use by the end of the applicable review period, the submitter of the notice could commence manufacture or processing of the substance. In addition, the legislation would place restrictions on EPA’s ability to suggest or request that a submitter withdraw a notice or suspend the running of the applicable review period. The House Committee on Energy and Commerce reported favorably on the bill and recommended its passage on March 23. The bill has four Republican co-sponsors.

Litigation

Challenge to PFAS Test Order Held in Abeyance After EPA Granted Exemption to Fire-Fighting Foam Maker

On May 10, 2023, the D.C. Circuit Court of Appeals ordered that a challenge to EPA’s first TSCA Section 4 test order under its National PFAS Testing Strategy be held in abeyance.33 The challenge to the test order for 6:2 fluorotelomer sulfonamide betaine (6:2 FTSB) was brought by a company that makes aqueous film-forming foams (AFFFs) used as fire suppressants. The company contended that it was not subject to the test order because it was neither a manufacturer nor a processor of 6:2 FTSB. (EPA determined that the company was a processor.) The company and EPA jointly requested that the proceeding be held in abeyance after EPA granted the company’s request for an exemption, “conditional upon the completion of the required tests by another party according to the specifications” of the test order. In their abeyance request, the parties said the exemption potentially obviated the need for the company to comply with the testing obligations and that an abeyance would “avoid protracted and potentially unnecessary litigation.” The parties said that the abeyance should continue either until EPA notified the company that its exemption was terminated and that the company must conduct testing or until five years after the later of either completion of the testing or the resolution of any cost sharing obligation on the company’s part to the parties conducting the testing. The company continued to deny that it was a “processor” subject to the test order, and EPA reserved its defenses to the company’s defenses. EPA must file status reports at 120-day intervals beginning on September 7, 2023.

Mississippi Nonprofit Challenged TSCA New Chemical Authorization for Fuel Oil

On April 7, 2023, a nonprofit corporation based in Pascagoula, Mississippi, filed a petition for review in the D.C. Circuit Court of Appeals challenging EPA’s issuance of an order pursuant to TSCA Section 5 authorizing Chevron U.S.A. Inc. (Chevron) to manufacture, process, distribute in commerce, use, or dispose of certain new chemical substances for use as a fuel, fuel additive, fuel blending stock, or refinery feedstock.34 Pursuant to TSCA Section 5, EPA determined that in the absence of sufficient information to permit a reasoned evaluation of the health and environmental effects of the substances, their manufacture, processing, distribution in commerce, use, or disposal may present an unreasonable risk. The specific chemical identities of the substances are confidential, but the press release announcing the lawsuit indicated that the authorization concerned the conversion of plastic waste into fuels at Chevron’s refinery in Pascagoula.35 EPA established terms and conditions for the authorized conditions of use, and also included exemptions for small quantities for research and development (R&D) purposes, for non-commercial R&D purposes, and when imported as part of an article. On May 11, the petitioner identified five issues that it intends to raise in its challenge: (1) that the order lacked prohibitions or limitations sufficient to protect against the unreasonable risk to human health or the environment that EPA concluded was presented by the chemical substances; (2) that the order failed to require development of information needed to assess risks that EPA concluded it lacked information to determine and that EPA failed to impose prohibitions or limitations to protect against unreasonable risk pending development of the information; (3) that EPA failed to determine whether non-cancer risks associated with the chemical substances were unreasonable; (4) that EPA failed to determine the risks the chemical substances pose to higher-risk subpopulations; and (5) that EPA violated TSCA by failing to publish notice of receipt of the premanufacture notices for the chemical substances and withheld information that did not qualify for confidentiality protections under TSCA.

North Carolina Federal Court Dismissed Challenge to EPA’s Decision on PFAS Testing Petition

On March 30, 2023, the federal district court for the Eastern District of North Carolina dismissed four community and environmental justice groups’ challenge to what the groups’ characterized as EPA’s effective denial of their TSCA Section 21 petition requesting testing on 54 PFAS.36 The court found that EPA had granted the groups’ petition and that the court lacked jurisdiction to review the granting of a petition. The court concluded that EPA had “reasonably construed” the Section 21 petition as asking EPA to initiate proceedings to test the 54 PFAS, had granted the petition to test those substances as a category, and had initiated testing on that category. The court held that the groups did not have a right to “dictate the testing program, rules, or orders EPA must issue.” The court rejected the groups’ contention that dismissal would insulate EPA’s actions from review, citing “alternative avenues” for review of EPA actions under TSCA and the Administrative Procedure Act. The groups have appealed to the Fourth Circuit Court of Appeals.37

Federal Court Dismissed Citizen Suit Alleging Plastic Packaging Company Violated TSCA by Producing PFAS; DOJ Enforcement Action Still Pending

On April 6, 2023, the federal district court for the District of Columbia ruled that the diligent-prosecution bar required dismissal of a TSCA citizen suit against a plastics company.38 Environmental groups alleged that the company violated a TSCA significant new use rule (SNUR) for long-chain perfluoroalkyl carboxylate (LCPFAC) substances by producing PFAS covered by the SNUR as a byproduct of a fluorination process used to insulate plastic storage containers. The groups filed their suit eight days after the U.S. Department of Justice (DOJ) filed an enforcement action against the company asserting the same TSCA violations and seeking the same relief.39 Although the plaintiffs did not dispute that the first requirement of the diligent-prosecution was met because DOJ had commenced a lawsuit asserting the same alleged violation, the plaintiffs argued that DOJ was not diligently prosecuting the suit. The court found that in the relevant eight-day period between when DOJ filed its suit and the plaintiffs filed the citizen suit, DOJ took steps that demonstrated that it was “energetically participating” in the litigation process. The court further found that even if it looked outside the eight-day window, DOJ’s consent to waiver of formal service, failure to seek a preliminary injunction, and decision not to pursue criminal penalties would not show a lack of diligent prosecution. The court also rejected the contention that EPA’s two-year investigation prior to DOJ’s commencement of the lawsuit demonstrated a lack of diligence. On April 26, the environmental groups filed a complaint as intervenor-plaintiffs in DOJ’s suit in the Eastern District of Pennsylvania. The plastics company has filed motions to dismiss both DOJ’s and the environmental groups’ complaints. DOJ has moved for partial summary judgment on the issue of the company’s liability for past and continuing violations of TSCA Section 5(a) and for past failure or refusal to submit notices required by Section 5(a) and its implementing regulations.

State Regulatory & Legislative Action

California

Department of Toxic Substances Control Proposed Listing Microplastics and PPD Derivatives as Candidate Chemicals in California’s Safer Consumer Products Program

The California Department of Toxic Substances Control (DTSC) proposed to add microplastics and para-phenylenediamine (PPD) derivatives to the Candidate Chemicals List for its Safer Consumer Products Program.40 Their addition to the Candidate Chemicals List would allow DTSC to evaluate product-chemical combinations containing microplastics or PPD derivatives for consideration as potential Priority Products to be regulated in the program. With respect to microplastics, DTSC stated that microplastics, as defined for purposes of the program, would meet the definition of “chemical.” The proposed definition for “microplastics” is “solid polymeric materials to which chemical additives or other substances may have been added, which are particles having at least three dimensions that are less than 5,000 micrometers (μm). Polymers derived in nature that have not been chemically modified (other than by hydrolysis) are excluded.” DTSC concluded that microplastics exhibit the hazard traits of environmental persistence and mobility in environmental media and that reliable information adequately demonstrates a high potential for human and animal exposures to microplastics. Regarding PPD derivatives, DTSC noted that it was adopting regulations to designate motor vehicle tires containing 6PPD as a Priority Product and that adding other PPD derivatives to the Candidate Chemicals List would ensure that tire manufacturers who wish to switch from 6PPD to another PPD derivative thoroughly evaluate the tradeoffs in an Alternatives Analysis.

Maine

Maine Enacts Amendments to PFAS Notification Requirements After Comment Period on Proposed Regulations Closes

On June 8, 2023, Maine’s governor signed amendments to Maine’s 2021 law regulating PFAS in products.41 The law extends from January 1, 2023 to January 1, 2025 the date by which manufacturers of products containing intentionally added PFAS must provide written notification to the Maine Department of Environmental Protection. The amendments also alter the requirements for the content of the notification, including by requiring that manufacturers include an estimate of the total number of units of a product sold annually in Maine or nationally and by allowing manufacturers to report PFAS in alternate ways if no Chemical Abstracts Service Registry Number is available or if the amount of each PFAS compound in a product is not known. The amendments allow manufacturers to rely on information provided by a supplier when exact quantities of PFAS are not known. The amendments also create an exemption from the notification requirement for manufacturers with 25 or fewer employees. In addition, the amendments add an exemption from the PFAS law for a “used product or used product component” and clarify that an exemption for packaging applies to “a package as defined in Title 32, section 1732, subsection 4 [Maine’s 2019 law concerning ‘Reduction of Toxics in Packaging’], for a product, except when the package is the product of the manufacturer.” The amendments apply retroactively to January 1, 2023.

The passage of amendments to the PFAS in Products law occurred after the comment period closed on the Maine Department of Environmental Protection’s proposed rule to implement the 2021 law.42 The formal rulemaking process was initiated on February 14, 2023, and the comment period closed on May 19. Read more about the proposed rule in our February 2023 and July 2022 blog posts.

Maryland

Maryland Law Requires Study of PFAS in Pesticides

On May 8, 2023, Maryland Governor Wes Moore approved two companion bills addressing the presence of PFAS in pesticides.43 The bills, as approved, require the Department of Agriculture to study the use of PFAS in pesticides in Maryland. The study must include: (1) an analysis of the health and environmental impacts of PFAS in pesticides in Maryland; (2) the identification of testing methods capable of testing for PFAS in pesticides; (3) an examination of characteristics that distinguish testing methods for PFAS that are validated for drinking water from testing methods that are validated for pesticides; (4) a status update on federal efforts to certify a method for testing for PFAS in pesticides; and (5) a status update on state and federal efforts to regulate or ban the use of pesticides containing PFAS. The Department of Agriculture must report its findings and recommendations to the governor and legislature by November 1, 2023.

Minnesota

Minnesota Law Includes Bans on Pesticides, Agricultural Products, and Cleaning Products Containing Intentionally Added PFAS Except for Currently Unavoidable Uses

On May 18, 2023, Minnesota Governor Tim Walz signed an agriculture and broadband bill that was amended to include provisions addressing PFAS.44 The bill gives the Commissioner of Agriculture (the Commissioner) the sole regulatory authority over the terrestrial application of pesticides containing PFAS, including, but not limited to, the application of pesticides to agriculture crops, structures, and other nonaquatic environments. In addition, beginning January 1, 2026, pesticide registrants and manufacturers of agricultural products (e.g., fertilizer, soil or plant amendment, etc.) must annually provide a statement that a product contains no intentionally added PFAS, or for a product that does, they must provide certain information to the Commissioner regarding the reason for and detail about the inclusion of PFAS in the product. Beginning January 1, 2032, the Commissioner may not register or approve for use a pesticide or agricultural product that contains intentionally added PFAS unless it is determined that the use is a currently unavoidable use. Beginning January 1, 2026, the Commissioner may not register a cleaning product if it contains intentionally added PFAS unless the use is a currently unavoidable use. PFAS is defined as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” The law also directs the Commissioner to conduct a review of existing published literature and other available information on the presence of PFAS in pesticides used in Minnesota, with a final report due by February 1, 2025.

Broader Minnesota Budget Bill Includes Notification Requirements for and Bans on PFAS-Containing Products

On May 24, 2023, Governor Walz signed an omnibus appropriations bill that contained PFAS provisions, including a requirement for manufacturers of any product sold, offered for sale, or distributed in the state that contains intentionally added PFAS to submit notification.45 This notification requirement takes effect on January 1, 2026. Products containing intentionally added PFAS may not be sold, offered for sale, or distributed for sale in Minnesota after that date, and manufacturers must submit the notification whenever they introduce a new product containing intentionally added PFAS into the state and whenever there is a significant change in the information provided in the notification. Beginning January 1, 2025, the law prohibits the sale, offering for sale, or distribution for sale in the state the following products if they contain intentionally added PFAS: carpets or rugs, cleaning products, cookware, cosmetics, dental floss, fabric treatments, juvenile products, menstruation products, textile furnishings, ski wax, or upholstered furniture. Beginning January 1, 2032, any products that contain intentionally added PFAS will be prohibited, unless it is determined by rule that the use of PFAS in the product is a currently unavoidable use. The law gives the Commissioner of the Pollution Control Agency authority to prohibit other products that contain intentionally added PFAS between January 1, 2025 and January 1, 2032; in doing so, the commissioner must prioritize products that are most likely to contaminate or harm the state’s environment and natural resources. Other provisions of the law make existing restrictions on class B firefighting foam that contains PFAS more stringent. Beginning January 1, 2024, the new provisions ban persons, political subdivisions, and state agencies from manufacturing or knowingly selling, offering for sale, distributing for sale, or distributing for use such firefighting foam in Minnesota and also bars its use by any person, with certain exceptions, including for use at airports. Other requirements in the law include a directive to establish a work group to review options for collecting a fee from PFAS manufacturers and a requirement that the Pollution Control Agency establish water quality standards for six individual PFAS.

Minnesota Cannabis Bill Prohibits PFAS in Packaging

A bill signed by Governor Walz on May 30, 2023 that legalizes recreational cannabis use includes a provision that prohibits packaging for cannabis and hemp products from containing or being coated with any PFAS.46

New York

New York Amended 2022 Ban on PFAS in Apparel

On March 24, 2023, New York Governor Kathy Hochul signed chapter amendments that modified a prohibition on PFAS in apparel that was enacted in 2022.47 The ban on apparel containing intentionally added PFAS now takes effect on January 1, 2025 (rather than December 31, 2023). In addition, beginning no later than January 1, 2027, the amended law prohibits the sale or offering for sale of apparel containing PFAS — whether intentionally added or not — at or above a level to be established by the New York State Department of Environmental Conservation (DEC). The amended law excludes “outdoor apparel for severe wet conditions” from the definition of “apparel” and instead sets an effective date of no later than January 1, 2028 for a prohibition on such outdoor apparel if it contains PFAS as intentionally added chemicals or at or above a level established by DEC. Other outdoor apparel is subject to the 2025 and 2027 effective dates for the PFAS ban. The amended law still excludes “professional uniforms” from the definition of apparel but only if they “are worn to protect the wearer from health or environmental hazards, including personal protective equipment.” The amended law also establishes a safe harbor for entities that sell apparel if they rely in good faith on a certificate of compliance with the law’s requirements. The law makes it a violation to provide such a certificate of compliance if a product does not satisfy the law’s PFAS limitations.

New York Enacted Chapter Amendments to 2022 Laws on Mercury in Cosmetic and Personal Products and PFAS in Carpet

On March 3, 2023, Governor Hochul signed chapter amendments aligning a 2022 law’s prohibition on the sale of cosmetic and personal care products containing mercury with U.S. Food and Drug Administration standards for permissible concentrations of trace amounts of mercury.48 On March 3, the governor also signed chapter amendments extending the effective date for an extended producer responsibility law’s ban on sales of carpet containing or treated with PFAS to December 1, 2026 (from December 31, 2024).49

NEWMOA (Northeast Waste Management Officials’ Association Inc.)

Model PFAS State Legislation Would Create Notification Requirements Modeled on Maine Program

On May 2, 2023, the Northeast Waste Management Officials Association Inc. (NEWMOA) released for public comment draft model legislation that would aim to reduce or eliminate the use of PFAS in consumer products.50 The model legislation was developed by a workgroup that included representatives from the environmental agencies of Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The model legislation provides for an interstate clearinghouse modeled after the Toxics in Packaging Clearinghouse, the Interstate Mercury Education and Reduction Clearinghouse, and the Interstate Chemicals Clearinghouse. The model bill also includes notification requirements modeled after the Maine PFAS in Products law and mercury reduction legislation in other states. In addition, the model legislation would restrict sale of PFAS-added products, require labeling of such products, and create producer responsibility requirements. NEWMOA noted that the designers of the model law did not view the model legislation as provisions that must be enacted all together. The comment period on the draft model legislation ends on June 29, 2023.

Oregon

Oregon Law Prohibits PFAS in Food Containers

Oregon Senate Bill 543, signed by Oregon Governor Tina Kotek on May 7, 2023, includes a prohibition on the sale, offering for sale, or distribution in or into Oregon of any foodware container containing intentionally added PFAS.51 The prohibition takes effect on January 1, 2025.

Washington

Washington Enacted Law Restricting Certain Chemicals in Cosmetic Products

On May 15, 2023, Washington Governor Jay Inslee signed legislation prohibiting the manufacture, sale, offering for sale, distribution for sale, or distribution for use in Washington of any cosmetic product that contains various chemicals or chemical classes that have been intentionally added.52 The ban begins January 1, 2025. Chemicals covered by the law are ortho-phthalates, PFAS, formaldehyde and chemicals determined to release formaldehyde, methylene glycol, mercury and mercury compounds, triclosan, m-phenylenediamine and its salts, o-phenylenediamine and its salts, and lead. The law also imposes a ban on cosmetics containing lead or lead compounds at one part per million (or at a level determined by the Department of Ecology), even if the lead was not intentionally added.

Washington Law Requires Department of Ecology to Petition EPA for TSCA Regulations to Reduce or Eliminate PCBs in Consumer Products

On May 9, 2023, Governor Inslee approved a bill that requires the Washington Department of Ecology to petition EPA to reassess TSCA regulations on manufacturing processes that are excluded from prohibitions on manufacturing, processing, distribution in commerce, and use of polychlorinated biphenyls (PCBs) and PCB items in order to eliminate or reduce the presence of PCBs in consumer products.53 The legislative findings state that TSCA’s standard allowing generation of “inadvertent PCBs” (i.e., PCBs present in products as byproducts) is “overdue for revision.” The legislature found that safer, feasible, and available alternatives to PCB-containing paints and printing inks now exist, citing the Department of Ecology’s June 2022 Safer Products for Washington report. The legislature therefore found that the use of manufacturing processes resulting in products with PCB byproducts “is not inadvertent, but intentional, and constitutes a use of the chemical within the product.” The law directs the department to seek completion of the petition review by January 1, 2025 “[t]o the extent practicable.”

Washington Department of Ecology Issued Draft Phthalates Action Plan

In May 2023, the Washington Department of Ecology, in conjunction with the Washington Department of Health, released a Draft Phthalates Action Plan (the Action Plan) for public comment.54 The Action Plan contains a background section with general information on chemistry, production, use, regulations, and human and environmental health effects and exposures, followed by recommendations to reduce, investigate, and phase out or promote safer alternatives to phthalates. The recommendations constitute the bulk of the Action Plan and are focused on ortho-phthalates. They address phthalates in products and materials (consumer products, food contact articles, daycare and early childcare facilities, health care, building material, and preferred purchasing); solid waste media (biosolids, compost, recycling products and packaging, and landfills); and environmental media (drinking water, aquatic habitats, and outdoor air). The deadline for commenting on the Action Plan is June 14, 2023.

Washington Department of Ecology Finalizes Reporting Requirements and Restrictions for First Round of Priority Consumer Products

On May 31, 2023, the Washington State Department of Ecology adopted the first final rule under the Safer Products for Washington Program.55 The final rule — which implements regulatory actions reported to the Washington legislature in June 2022 — creates reporting requirements and restrictions for manufacturers of priority consumer products that contain priority chemicals. The rule addresses PFAS in aftermarket stain- and water-resistance treatments, carpets and rugs, and leather and textile furnishings; ortho-phthalates in vinyl flooring and in personal care product fragrances; organohalogen flame retardants in electric and electronic products; flame retardants in recreational polyurethane foam; and phenolic compounds in laundry detergent, food and drink can linings, and thermal paper. Restrictions do not apply to previously owned priority consumer products that were manufactured before the effective dates of the restrictions, which vary depending on the product category, even if a product is refurbished after the effective date. Restrictions also do not apply to repair or replacement parts made to refurbish a priority consumer product manufactured before the effective date of a restriction.

Washington Department of Ecology Releases Draft Report Identifying Priority Chemicals for Second Cycle of Safer Products Program

On June 7, 2023, the Washington State Department of Ecology released for public comment its Draft Identification of Priority Chemicals: Report to the Legislature as part of the first phase of implementing Cycle 2 of the Safer Products for Washington program.56 The draft report identifies the following priority chemicals and chemical classes: cadmium and cadmium compounds; lead and lead compounds; brominated and/or chlorinated substances; benzene, ethyl benzene, toluene, and xylene substances (BTEX); formaldehyde and formaldehyde releasers; cyclic volatile methylsiloxanes (cVMS); and 6PPD. The comment period on the draft report will close on July 14.

To read previous editions of The Chemical Compound, click here.

*Margaret Barry contributed to this Newsletter. Ms. Barry is employed as an Environmental Law Writer at Arnold & Porter’s New York Office.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This publication 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. 88 Fed. Reg. 34100 (May 26, 2023).

  2. 88 Fed. Reg. 28284 (May 3, 2023).

  3. 88 Fed. Reg. 39652 (June 16, 2023).

  4. EPA/OCSPP, RIN 2070-AK67, TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances.

  5. TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances, RegInfo.gov (Spring 2023).

  6. See OIRA Conclusion of EO 12866 Regulatory Review: Asbestos; Reporting and Recordkeeping Requirements Under the Toxic Substances Control Act (TSCA), RegInfo.gov (last visited June 27, 2023).

  7. Asbestos Disease Awareness Org. v. EPA, No. 3:19-CV-00871 (N.D. Cal. June 7, 2021).

  8. Asbestos; Reporting and Recordkeeping Requirements Under the Toxic Substances Control Act (TSCA), RegInfo.gov (Spring 2023).

  9. News Release, EPA, EPA Plans to Extend Compliance Date for Regulation of DecaBDE to Ensure Continuity of Nuclear Power Supply Chain (May 3, 2023).

  10. See 86 Fed. 880 (Jan. 6, 2021).

  11. 88 Fed. Reg. 17566 (Mar. 23, 2023).

  12. See David LaRoss, EPA’s Keehner Expects Draft 1,4-Dioxane Supplement In ‘Six Weeks Or So’, Inside TSCA (June 2023).

  13. EPA Accepting Public Comments on Candidates to be ad hoc Reviewers for Draft Supplement to the 1,4-Dioxane Risk Evaluation Under TSCA, EPA (last updated June 14, 2023).

  14. 88 Fed. Reg. 16389 (Mar. 17, 2023).

  15. 88 Fed. Reg. 12354 (Feb. 27, 2023).

  16. News Release, EPA, EPA Makes Trends in Domestic Chemical Production and Imports More Accessible to the Public with the First Ever Chemical Data Reporting National Review (Mar. 31, 2023); 2020 CDR National Review, EPA (last updated Mar. 31, 2023).

  17. 88 Fed. Reg. 37155 (June 7, 2023).

  18. 88 Fed. Reg. 25590 (Apr. 27, 2023).

  19. 88 Fed. Reg. 27502 (May 2, 2023); EPA Office of Res. Conservation & Recovery, Draft National Strategy to Prevent Plastic Pollution (Apr. 2023).

  20. Pub. L. No. 116-224, 134 Stat. 1072, 1092 (Dec. 18, 2020).

  21. 88 Fed. Reg. 18638 (May 30, 2023).

  22. See Joint Subcomm. on Env’t, Innovation, & Pub. Health Per- and Polyfluoroalkyl Substances Strategy Team, Nat’l Sci. & Tech. Council, Per- and Polyfluoroalkyl Substances (PFAS) Report (Mar. 2023).

  23. 88 Fed. Reg. 22399 (Apr. 13, 2023).

  24. 87 Fed. Reg. 54420 (Sept. 6, 2022).

  25. News Release, EPA, EPA Completes Scientific Testing of Pesticide Products for PFAS (May 30, 2023).

  26. EPA Office of Inspector General, Report No. 23-E-0013, The EPA’s January 2021 PFBS Toxicity Assessment Did Not Uphold the Agency’s Commitments to Scientific Integrity and Information Quality (Mar. 7, 2023).

  27. Perfluorohexanoic Acid (PFHxA), EPA (last updated Apr. 27, 2023).

  28. 88 Fed. Reg. 21189 (Apr. 10, 2023); Perfluorodecanoic Acid (PFDA), EPA (last updated Apr. 10, 2023).

  29. 88 Fed. Reg. 16442 (Mar. 17, 2023).

  30. 88 Fed. Reg. 10320 (Feb. 17, 2023).

  31. S. 1427, 118th Cong. (2023); S. 1429, 118th Cong. (2023); S. 1430, 118th Cong. (2023); S. 1432, 118th Cong. (2023); S. 1433, 118th Cong. (2023).

  32. H.R. 1158, 118th Cong. (2023).

  33. Nat’l Foam Inc. v. EPA, No. 22-1208 (D.C. Cir. May 10, 2023).

  34. Cherokee Concerned Citizens v. EPA, No. 23-1096 (D.C. Cir., filed Apr. 7, 2023).

  35. Press Release, Earthjustice, Community Sues EPA for Allowing Production of Petrochemical Fuel Despite Extreme Cancer Risk (Apr. 7, 2023).

  36. Ctr. for Env’t Health v. Regan, No. No. 7:22-CV-00073-M, 2023 U.S. Dist. LEXIS 76748 (E.D.N.C. Mar. 30, 2023).

  37. Ctr. for Env’t Health v. Regan, No. 23-1476 (4th Cir.).

  38. Ctr. for Env’t Health v. Inhance Techs. USA, No. 1:22-cv-03819-JEB, 2023 U.S. Dist. LEXIS 61011 (D.D.C. Apr. 6, 2023).

  39. United States v. Inhance Techs. LLC, No. 2:22-cv-05055 (E.D. Pa. Dec. 19, 2022).

  40. DTSC, Proposal to Add Microplastics to the Candidate Chemicals List (undated); DTSC, Summary Document: Proposal to Add para‐Phenylenediamine (PPD) Derivatives to the Candidate Chemicals List (Apr. 27, 2023).

  41. 2023 Me. HP 138 (LD 217).

  42. Chapter 90: Products Containing Perfluoroalkyl and Polyfluoroalkyl Substances, Maine Dep’t of Env’t Prot. (last visited June 5, 2023).

  43. 2023 Md. Laws chs. 485 (SB 158), 486 (HB 319).

  44. 2023 Minn. Laws. ch. 43 (SF1955).

  45. 2023 Minn. Laws ch. 60 (HF2310).

  46. 2023 N.Y. Laws ch. 63 (HF100).

  47. 2023 N.Y. Laws ch. 111 (S1322).

  48. 2023 N.Y. Laws ch. 15 (A619).

  49. 2023 N.Y. Laws ch. 82 (S834).

  50. Draft PFAS Prevention Model Legislation, NEWMOA (last visited June 5, 2023).

  51. 2023 Or. Laws ch. 73 (SB543).

  52. 2023 Wash. Laws ch. 455 (HB1047).

  53. 2023 Wash. Laws ch. 399 (SB 5369).

  54. Wash. Dep’t of Ecology, Pub. 23-04-025, Draft Phthalates Action Plan (May 2023).

  55. Wash. Admin. Code §§ 173-337-010–173-337-114; Chapter 173-337 WAC — Safer Products Restrictions and Reporting, Wash Dep’t of Ecol. (last visited June 5, 2023).

  56. Wash. State Dep’t of Ecol., Pub. Pub. 23-04-038, Draft Identification of Priority Chemicals: Report to the Legislature — Safer Products for Washington, Cycle 2, Implementation Phase 1 (June 2023).

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