eBay Not Liable for Environmental Violations on Its Platform, Court Rules

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A federal judge has dismissed a lawsuit brought by the Justice Department against eBay for allegedly selling products that violate environmental statutes, holding that eBay cannot be held liable under an internet speech law.

The September 30 order in United States of America v. eBay, Inc., No. 23-CV-7173, applies section 230 of the Communications Decency Act (CDA), which shields providers of interactive computer services from being “treated as the publisher” of information “provided by another information content provider.”

Because eBay did not “materially contribute to the illegal products’ ‘alleged unlawfulness,’” it is immune for content on its platform, the U.S. District Court for the Eastern District of New York held.

The government’s complaint alleged the sale of “hundreds of thousands” of products in violation of the Clean Air Act (CAA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Toxic Substances Control Act (TSCA), including automobile aftermarket defeat devices and unregistered pesticides.

The court also held that the challenges under the CAA and FIFRA would have failed regardless of CDA immunity because those laws require illegal products to be “sold” for a violation to occur.  “To ‘sell’ an item one must either possess the physical item or its title” and eBay possesses neither, the order states.

But the alleged TSCA violations—the distribution of products illegally containing methylene chloride—could have proceeded, the court noted, because TSCA only requires that a product be “introduc[ed] into commerce” for a violation to occur.

An earlier blog post on the case can be found here.

EPA Tightens Emissions Standards for Chemical Plants

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The synthetic organic chemical manufacturing industry and some polymer manufacturers will face more stringent emissions limitations under a final rule published by EPA on May 16, 2024.  The rule primarily targets emissions from chloroprene and ethylene oxide, which are linked to cancer in humans.

The final rule amends the National Emissions Standards for Hazardous Air Pollutants and New Source Performance Standards for these facilities, which number about 200.  Emissions limitations include requirements to improve flare efficiency and stronger standards for heat exchange systems, process vents, and storage vessels.

According to an EPA fact sheet, covered facilities “must meet risk-based requirements for reducing [ethylene oxide] within two years after the rule becomes effective and must meet risk-based standard for reducing chloroprene within 90 days after” the rule takes effect July 15, 2024.

The final rule also mandates fenceline monitoring for facilities that use, produce, store, or emit chloroprene, ethylene oxide, benzene, 1,3-butadiene, ethylene dichloride, or vinyl chloride.  Neoprene production facilities will be subject to lower action levels for chloroprene and shorter compliance deadlines than other facilities.

Previous EPA regulations had included general exemptions from emission control requirements during periods of startup, shutdown, and malfunction.  The final rule eliminates those exemptions, which courts have deemed impermissible under the Clean Air Act.

In a press release, EPA stated that the final rule will reduce ethylene oxide “and chloroprene emissions from covered processes and equipment by nearly 80%,” reducing “the number of people with elevated cancer risk by 96% in communities near plants that emit” those chemicals.

EPA Releases Proposed Rule on Regulatory Requirements for New HAP Additions

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Last month, EPA published a proposed rule that would amend the National Emission Standards for Hazardous Air Pollutants (NESHAP) to facilitate the addition of pollutants to the list of Hazardous Air Pollutants (HAP) under the Clean Air Act (CAA).  The proposed rule seeks to address applicability and compliance issues that EPA identified following the Agency’s 2022 decision to add 1-bromopropane (“1-BP”) to the list of HAP, which was the first addition to the HAP list since its inception in 1990.  Comments on the proposed rule are due on November 13, 2023.

The proposed rule makes the following clarifications:

  • EPA proposes language clarifying that a new HAP would not be regulated under NESHAP promulgated before the effective date of the listing.
  • EPA states that beginning on the effective date of the listing, a new HAP must be included in calculating a facility’s actual emissions, potential emissions, and whether a facility is considered an area source or a major source under CAA. Any facility that becomes a major source under CAA section 112 solely due to the addition of a new HAP, known as a major source due to listing (“MSDL”) facility, will need to evaluate whether any major source NESHAP applies to its operations.  EPA proposes that each MSDL facility be considered an “existing source” under CAA section 112, a designation that typically results in less stringent NESHAP emissions standards.  EPA also proposes that MSDL facilities would not be subject to the original NESHAP compliance schedules, which in many cases would require instantaneous compliance, and instead proposes that these facilities be subject to new deadlines based on the nature of the NESHAP emissions limitations or requirements.
  • When a facility triggers one or more major source NESHAP, it is required to submit an initial notification under each newly applicable NESHAP. EPA proposes that MSDL facilities include a statement that the facility is a major source due to HAP listing in their notification.

The proposed rule does not include any changes to the CAA Title V program.  MSDL facilities that do not elect to reduce their emissions to non-major levels would be required to apply for a Title V operating permit.  Though the proposed rule focuses on the immediate compliance obligations following the addition of a new HAP, EPA states that “future actions within NESHAP will address rule-specific issues,” such as identifying emissions sources and promulgating standards for new HAP.

1-BP was added to the Toxics Release Inventory list of reportable chemicals in 2015.  According to EPA’s website, the Agency “is now in the process of writing a proposed rule to take action to regulate 1-BP” following EPA’s 2022 determination that the chemical poses an unreasonable risk to human health.

EPA Proposes Revisions to the Air Emissions Reporting Requirements

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On August 9, 2023, EPA released a lengthy proposed rule revising the Air Emissions Reporting Requirements (AERR), which requires state, local, and some tribal agencies (“States”) to collect and report data on air pollutant emissions to EPA.

Perhaps most importantly, the proposed rule would require the reporting of point source emissions of Hazardous Air Pollutants (HAP), as enumerated in Clean Air Act section 112(b) and amended in 40 CFR 63 Subpart C.  EPA is proposing to expand the definition of “point source” accordingly to include certain emitters of HAP pollutants.  Owners/operators of point sources would be required to report HAP data directly to EPA unless a State chooses to report these emissions on behalf of owners/operators of point sources within the State.

In addition to the reporting of HAP, EPA proposes that:

  • Owners/operators of point sources report performance test results and performance evaluations that meet certain criteria;
  • States report data on “small generating units” that operate at point sources and meet specific criteria, and
  • Point source reporting should be done for the same sources every year, eliminating the current triennial approach that requires more facilities to be reported every third year by making the triennial year thresholds permanent, among a myriad of other changes.

The comment period for the proposed rule was extended until November 17, 2023.  Though the proposed changes have varying implementation dates, most importantly, most facilities would be required to begin submitting HAP data for the 2026 inventory year.

DOJ Files Lawsuit Against eBay for Environmental Violations

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On behalf of EPA, the Department of Justice (DOJ) has filed a lawsuit against the online retailer eBay for selling and distributing “hundreds of thousands of products” that allegedly violate the Clean Air Act (CAA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Toxic Substances Control Act (TSCA).

DOJ first alleges that eBay violated the CAA by selling or causing the sale of over 343,000 automotive aftermarket defeat devices.  These devices, which are often advertised as vehicle power enhancers, “can cause motor vehicles to emit hundreds to thousands of times more pollution than a motor vehicle with properly functioning emission controls,” the complaint says.  DOJ alleges that each aftermarket defeat device sold, offered for sale, or caused to sell by eBay constitutes a violation of CAA section 203(a)(3)(B), which forbids selling or offering to sell a motor vehicle part that bypasses an emission-related element of design.

Second, the complaint alleges that eBay committed a series of FIFRA violations by selling or distributing a minimum of 23,000 unregistered, misbranded, or restricted use pesticide products.  DOJ also alleges 8,074 violations of a Stop Sale, Use, or Removal Order (SSURO) issued by EPA in 2020 (and amended in 2021), which identified some of these allegedly unlawful pesticide products.  Among the products sold in alleged violation of the SSURO was an insecticide containing dichlorvos, which DOJ characterizes as highly dangerous, and a “disinfection card” claiming to protect users from COVID-19 when worn around their neck.

Finally, eBay is being sued under TSCA for violating a 2019 rule prohibiting the manufacture, processing, and distribution of products containing methylene chloride for consumer paint and coating removal.  The TSCA section 6(a) rule was the result of EPA’s determination that those uses pose an unreasonable risk of injury to health due to methylene chloride’s acute human lethality.  According to the complaint, eBay has distributed over 5,600 items in violation of the rule.

The lawsuit seeks injunctive relief to prevent eBay from further selling products violating the CAA, FIFRA, and TSCA.  The complaint additionally requests civil penalties for each of the CAA violations, which could amount to $5,580 per violation.

EPA Takes Action Against Denka for Air Pollution

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On March 20, 2023, the Department of Justice (“DOJ”), on behalf of EPA, filed a motion for a preliminary injunction under the Clean Air Act (“CAA”), asking the federal district court for the eastern district of Louisiana to order Denka Performance Elastomer LLC (“Denka”) to immediately reduce chloroprene emissions from its neoprene manufacturing facility in LaPlace, Louisiana. The motion follows DOJ’s February complaint arguing that plant operations present an imminent and substantial endangerment to public health and welfare due to cancer risks posed by Denka’s chloroprene emissions.

The Denka facility is currently the only facility in the country producing neoprene, a flexible, synthetic rubber used to manufacture a variety of products, including wetsuits, automotive belts and hoses, and orthopedic braces. Chloroprene is a liquid raw material used to produce neoprene.  It is emitted into the air from various production processes at the facility.

In 2010, EPA Integrated Risk Information System (IRIS) found that chloroprene is “likely to be carcinogenic to humans.” In a separate civil proceeding, Denka has challenged the process by which the Environmental Protection Agency considered the scientific information supporting its understanding of the human health risks posed by chloroprene.

According to the complaint, air monitoring conducted by both the EPA and Denka over the past several years consistently shows chloroprene concentrations in the air near Denka’s LaPlace facility that are as high as 14 times the recommended levels.  In the complaint, DOJ expressed particular concern for students attending the 5th Ward Elementary School, located approximately 450 feet from Denka’s facility.

Associate Attorney General Vanita Gupta commented on the complaint stating, “We allege that Denka’s emissions have led to unsafe concentrations of carcinogenic chloroprene near homes and schools in St. John the Baptist Parish, Louisiana. The Justice Department’s environmental justice efforts require ensuring that every community, no matter its demographics, can breathe clean air and drink clean water. Our suit aims to stop Denka’s dangerous pollution.”

EPA PFAS Strategic Roadmap

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EPA has compiled a roadmap outlining Key Actions to address the risks posed by PFAS.  The roadmap identifies key actions under TSCA and other statutes including the Clean Water Act, the Safe Drinking Water Act, and Superfund.

TSCA

The roadmap calls for EPA to “close the door” on abandoned PFAS; i.e., PFAS chemicals that are no longer produced.  Many of these substances have no restrictions under TSCA.  This leaves the door open for manufacturers to start producing the chemicals again.  The roadmap intends for EPA to designate all uses of these substances that are not current uses as Significant New Uses.  This will allow EPA to review and make determinations on the potential risks, and require safety measures, before allowing the manufacturing of those chemicals again.   The roadmap states that EPA plans to implement this action item during the summer of 2022.

There is an ongoing goal of completing toxicity assessments for two PFAS known as GenX chemicals.  EPA also has a goal to publish health advisories for GenX chemicals and PFBS in Spring 2022.

Other actions under TSCA include

  • Publish national PFAS testing strategy,
  • Review previous decisions on PFAS, and
  • Finalize new PFAS reporting under TSCA Section 8.

TRI

Another key action in the roadmap is for EPA to categorize PFAS on the Toxic Release Inventory (TRI) as “Chemicals of Special Concern” and to remove the de minimis eligibility from supplier notification requirements for all Chemicals of Special Concern.  Adding PFAS to TRI has a projected completion goal of 2022.

CWA

The roadmap calls for restricting PFAS discharges from industrial sources through a multi-faceted Effluent Limitations Guidelines (ELG) program.  EPA plans to undertake rulemaking to restrict PFAS discharges from organic chemicals, plastics and synthetic fibers, metal finishing, and electroplating operations.  A proposed rule for plastics and synthetic fibers is expected in Summer 2023, and a rule for metal finishing and electroplating is expected in Summer 2024.  Other industries EPA is considering issuing PFAS ELGs for include electrical and electronic components, textile mills, and landfills.

SDWA

EPA has goal to establish a national primary drinking water regulation for PFOA and PFOS.  EPA regulates drinking water for over 90 contaminants but that does not include any for PFAS.  EPA expects to issue a proposed regulation in Fall 2022.  The agency has a statutory deadline of March 2023 to complete this action.

Superfund

EPA is developing a Notice of Proposed Rulemaking to designate PFOA and PFOS as CERCLA hazardous substances.  This would require facilities to report on PFOA and PFOS releases that meet or exceed set reportable quantities.  The proposed rulemaking will be available for public comment in Spring 2022.   EPA is also asking for public comment on designating additional PFAS as hazardous substances under CERCLA.

CAA

The Clean Air Act requires EPA to regulate emissions of hazardous air pollutants, which do not currently include PFAS.  EPA plans to identify sources of PFAS air emissions, concentration levels, and cost-effective mitigation technologies.

EPA Issues Second Draft “Eco ISA” for NOx, SOx and PM

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EPA recently released the second draft of an Integrated Science Assessment (ISA) for “ecological effects” from NOx, SOx and PM, which include effects on flora, fauna and water resources.  The ISA will be used to determine the need for revising the current secondary national ambient air quality standards (NAAQS) for these pollutants. Other welfare effects that could be caused by these substances, such as effects on visibility, climate or building materials, will be addressed in the ISAs for the primary (health-based) standards for the substances.

The NOx and SOx ecological effects previously were addressed in a 2008 ISA. The specific effects considered are too numerous to discuss here, but they are listed in a table in the new draft ISA that compares the 2008 conclusions with those presented in the new draft. All of the effects analyzed in the 2008 ISA were determined to be “causal” pursuant to EPA’s classification scheme (meaning that they are caused by the pollutants at issue). However, those determinations did not result in a change in the secondary standards, owing to the uncertainties involved in identifying ambient concentrations necessary to alleviate the effects. EPA took the position that the existing suite of primary and secondary standards also would provide adequate protection against these ecological effects.

In the new draft, all the effects determined to be causal in 2008 retain that classification. However, the new draft addresses the following five effects not classified in 2008:

  1. N deposition and the alteration of the physiology and growth of terrestrial organisms and the productivity of terrestrial ecosystems;
  2. Acidifying N and S deposition and the alteration of the physiology and growth of terrestrial organisms and the productivity of terrestrial ecosystems;
  3. N deposition and increased nutrient-enhanced coastal acidification;
  4. N deposition and changes in biota, including altered physiology, species richness, community composition, and biodiversity due to nutrient-enhanced coastal acidification;
  5. S deposition and changes in biota due to sulfide phytotoxicity, including alteration of growth and productivity, species physiology, species richness, community composition, and biodiversity in wetland and freshwater ecosystems.

All these effects, most of which were discussed in the 2008 ISA but not classified, would now be classified in the new ISA as causal on the basis of more recent information. The general conclusion is that new evidence supports the prior classifications and improves quantification of dose-response relationships. However, there is no clear statement that quantification has improved sufficiently to allow use of ecological effects as a basis for revising the standards, and in many cases the draft ISA finds that quantification remains subject to significant uncertainty.

Unlike the 2008 ISA, the new draft includes ecological effects from ambient PM. EPA’s last discussion of this issue, in the 2009 PM ISA, concluded that there is likely a causal relationship between PM deposition and various ecological effects, but that the specific relationships cannot be quantified as a result of a number of uncertainties. As a result, the PM secondary standards were not revised at the conclusion of the last review.  The new draft ISA draws the same conclusions on the basis of the more recent studies.

The Clean Air Scientific Advisory Committee (CASAC) will review this new draft of the Eco ISA, after which EPA is likely to finalize the ISA and prepare a draft Policy Assessment (PA) that makes recommendations for retaining or revising the current secondary standards based on the science presented in the ISA.

EPA Proposes Revision of AP42 Emission Factors for Liquid Storage Tanks

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As a result of widespread interest EPA recently extended the comment deadline for proposed revisions to AP42 chapter 7, which specifies emission factors for organic liquid storage tanks. The AP42 emission factors are used to estimate emissions from specific industrial facilities and processes when no site-specific emissions data are available. They are used in a wide array of regulatory applications ranging from emissions inventories to permit applicability determinations to compliance and enforcement. The proposed changes for liquid storage tanks, which were prepared by the American Petroleum Institute, are extensive; in effect Chapter 7 is being rewritten. The results are unclear and may vary significantly among different types of tanks and facilities. Anyone who has relied on the AP42 factors for storage tanks, or may need to do so in the future, should evaluate the new emission factors and equations EPA is proposing. Comments are due by November 26.

EPA Publishes NAAQS Proposals and Notices

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EPA recently has published a plethora of proposed rules and notices governing or closely related to development of national ambient air quality standards (NAAQS). These include (in order by comment deadline):

Consideration of costs and benefits. On June 13 (83 FR 27524), EPA issued an advance notice of proposed rulemaking (ANPRM) soliciting comment on whether and how EPA should promulgate regulations that provide a consistent and transparent method for weighing costs and benefits in making regulatory decisions in a manner consistent with applicable authorizing statutes. With respect to NAAQS, a major issue will be whether and to what extent EPA can consider costs consistently with Supreme Court decisions holding that economic impacts generally may be considered in NAAQS implementation but not in NAAQS development. Comments are due by July 13.

Retention of SO2 NAAQS. On June 8 (83 FR 26752), EPA proposed to retain the existing standards for sulfur oxides. The proposal is based on findings that the existing standards provide adequate public health and welfare protection. A public hearing will be held July 10 and comments are due by August 9.

Scientific transparency. As we reported last month, EPA has proposed new rules for scientific transparency in rulemaking proceedings. The final rules are likely to be applied in EPA’s upcoming proceedings to review the NAAQS for ozone and particulate matter (PM). Comments on the transparency proposal are due by August 16.

Ozone information call. On June 26 (83 FR 29785), EPA published a notice announcing development of a new Integrated Science Assessment (ISA) for ozone and inviting interested parties to submit information on new ozone research or policy-relevant issues for consideration in the agency’s review of the current standards. When finalized, the ISA will contain the scientific information on which EPA will base its decision whether to revise the current standards. Responses to the information call are due by August 27.

Eco ISA for NOx, SOx and PM. On June 26 (83 FR 29786) EPA announced the availability of the Second External Review Draft Integrated Science Assessment for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter—Ecological Criteria. This is a ground-breaking ISA that reviews new evidence of ecological effects from emissions of these three pollutants. Such effects previously have been considered separately in the ISAs for each of the pollutants. This second draft builds on an initial draft that the agency released for public comment last year. This draft will be reviewed by EPA’s Clean Air Scientific Advisory Committee (CASAC) as well as the public. Public comments are due by September 4.

NAAQS implementation strategies. On June 26 (83 FR 29784), EPA published a notice soliciting information to facilitate CASAC consideration of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for NAAQS attainment and maintenance. Comments are due by October 24.