GAO Releases Report on PFAS-Related Recommendations

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In September 2023, the Government Accountability Office (GAO) released a three-page report detailing the recommendations it has previously made to government agencies for the purposes of “detecting, limiting exposure to, and treating PFAS contamination.”

GAO describes the following recommendations it made to EPA, FDA, and Department of Defense (DOD), respectively:

  • In September 2022, GAO recommended that EPA conduct an analysis of the demographic characteristics of communities that have PFAS in their drinking water. EPA agreed and is currently implementing the recommendation.
  • In November 2022, GAO recommended that FDA request legal authority from Congress to compel companies to provide information about certain substances on the market that come into contact with food (such as packaging) that may contain PFAS. FDA is considering the recommendation.
  • In April 2023, GAO recommended that DOD: (1) develop a strategy to help the Department comply with Congress’s directive to stop procuring certain products containing PFAS and (2) update its sustainable product guidance to reflect new PFAS policies. DOD agreed and is currently implementing the recommendation. GAO also recommended that Congress clarify its direction to DOD.

In addition to these recommendations, GAO stated that it is currently monitoring public water systems’ implementation of PFAS treatment methods. GAO also highlighted its July 2022 report on the technologies that could be used to address PFAS-related risks, which recommended that policymakers promote research, expand method development, and support full-scale PFAS treatment.

EPA Settles with Slack Chemical Company Following Alleged EPCRA Violations

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On October 11, 2023, EPA announced a settlement with Slack Chemical Company, Inc. (“Slack”) following alleged violations of the Emergency Planning and Community Right-to-Know Act (EPCRA) at two of the New York corporation’s facilities. The settlement includes a civil penalty of $231,300.

Under Section 313 of EPCRA, owners or operators of certain facilities are required to annually submit a Toxic Chemical Release Inventory Reporting Form R (“TRI Form R”) report for each chemical listed under 40 CFR 372.65 that was manufactured, processed or otherwise used in quantities exceeding a certain threshold. TRI Form R reports require information about on-site releases of the chemical into the environment, transfers of the chemical in waste to off-site locations, on-site waste treatment methods, and source reduction and recycling activities. Alternatively, owners or operators can opt to submit a simpler Toxic Chemical Release Inventory Reporting Form A (“TRI Form A”)  report when the quantity of the chemical manufactured, processed, or otherwise used is one million pounds or less, the total quantity released, disposed, and treated at the facility is 500 pounds or less, and the chemical is not considered to be of special concern. TRI Form R/Form A reports are due no later than July 1 for the preceding calendar year.

EPA alleges that Slack, which describes itself as a “chemical warehousing, repackaging and distribution company,” failed to submit timely TRI Form R/Form A reports at its Carthage and Saratoga Springs facilities for calendar years 2019 and 2021. More specifically, EPA alleges that Slack:

  • Submitted TRI Forms R or A for the chemical’s ammonia, methanol, nitric acid, and toluene at its Carthage facility and a TRI Form R for methanol at its Saratoga Springs facility on May 10, 2021, for calendar year 2019, approximately 10 months late; and
  • Submitted TRI Forms R or A for the same chemicals at the facilities on November 21, 2022, for the calendar year 2021, approximately 4.5 months late.

In a news release, EPA stated that Slack has “voluntarily instituted a corporate compliance plan to prevent recurrence of EPCRA reporting violations,” which includes a written procedure listing the steps needed to identify TRI chemicals and their quantities.

Case Update: Motion to Dismiss Granted in PFAS Lawsuit Against L’Oreal

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In March 2022, a class action lawsuit was filed against L’Oreal U.S.A., Inc. for alleged violations of state consumer protection laws related to the failure to disclose PFAS in their waterproof mascara products. The complaint alleged that L’Oreal violated numerous consumer protection laws, including New York General Business Laws 349 and 350, against fraudulent and misleading advertising by failing to disclose that its waterproof mascara products contain PFAS. (Verdant Law published a detailed blog post on the litigation, which can be found here.)

In a recent ruling on September 30, 2023, the U.S. District Court for the Southern District of New York granted L’Oreal’s motion to dismiss the case. The court concluded that the plaintiffs failed to demonstrate standing, as they didn’t sufficiently prove that the specific mascaras they purchased contained PFAS.

The plaintiffs based their claims on a 2021 University of Notre Dame study that found high fluorine levels in various cosmetic products, including waterproof mascaras, commonly advertised as long-lasting or wear-resistant. Plaintiffs did not allege or provide any evidence that the Notre Dame study had included a review of any L’Oreal products.

The plaintiffs also conducted their own study, alleging that the L’Oreal mascaras tested had PFAS levels above the EPA’s lifetime Health Advisory Level (the health advisory level is the amount of PFAS that is most certain not to cause harmful human effects if consumed over a lifetime). Nonetheless, the court found these allegations lacking in specific details, such has how many samples were tested and if all samples tested were positive for PFAS. Nor, according to the court, did the study link the findings to the actual products purchased by the plaintiffs. The court dismissed the case without prejudice and with leave to amend.

California Governor Vetoes Three Bills Restricting PFAS in Consumer Products

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On October 8, 2023, California Governor Gavin Newsom announced that he had vetoed three bills passed by California’s state legislature designed to restrict PFAS in certain consumer products. The three bills vetoed by Newsom are as follows:

  • AB 727, which would have banned the manufacture and sale of cleaning products containing intentionally added PFAS or PFAS at or above a certain concentration beginning in 2026. The concentration threshold would have decreased over time to 10 ppm in 2028.  The bill also would have banned the manufacture and sale of floor sealers and floor finishers containing intentionally added PFAS or PFAS at or above 10 ppm beginning in 2028.
  • AB 246, which would have banned the manufacture and sale of menstrual products containing intentionally added PFAS or PFAS at or above 10 ppm beginning in 2025.
  • AB 1423, which would have banned the manufacture, sale, or purchase of artificial turf containing intentionally added PFAS or PFAS at or above 20 ppm beginning in 2026.

In his veto messages for each of the three bills, Newsom provided an identical rationale for his decision.  Newsom wrote that he “strongly support[s] the author’s intent and [has] signed similar legislation in the past” but is concerned that the bill does not identify a regulatory agency to determine or enforce compliance with the proposed statute. According to Newsom, similar legislation that has been enacted without regulatory oversight has been challenging to implement due to inconsistent interpretations and confusion among manufacturers on how to comply. Newsom concluded each message by stating that he is directing the Department of Toxic Substances Control to work with the bill’s author and the legislature to consider other approaches to PFAS regulation.

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.

EPA Updates Safer Chemicals Ingredients List

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On September 23, 2023, EPA announced that it is adding 10 chemicals to the Safer Chemicals Ingredients List (SCIL), a list of chemicals which have been reviewed by EPA’s Safer Choice Program and meet its Safer Choice Criteria.  The chemicals on the list are considered to be among the safest chemicals for their functional use class (such as surfactants, solvents, or chelating agents), allowing manufacturers to choose the safest available chemicals for each type of ingredient in a product.

Manufacturers can apply to have chemicals added to the SCIL.  During the application process, a third-party profiles the substance and the Safer Choice Program assesses whether it meets Safer Choice criteria, which includes toxicity and fate standards.  Products containing chemicals that meet Safer Choice criteria may be eligible to enter into partnership with the program, which grants use of a Safer Choice product label.

According to EPA, the updated SCIL includes 1,071 substances.  The 10 chemicals added to the list in September 2023 are shown below.

List Name CAS Registry Number Functional Use Class
Fats and Glyceridic oils, vegetable, hydrogenated 68334-28-1 Emollients
Tocopherols 1406-66-2 Preservatives and Antioxidants
Sulfuric acid, dimethyl ester, compd. with .alpha.,.alpha.’,.alpha.”,.alpha.”’-[1,6-hexanediylbis(nitrilodi-2,1-ethanediyl)]tetrakis[.omega.-hydroxypoly(oxy-1,2-ethanediyl)] 247074-09-5 Polymers
Glycolipids, sophorose-contg., Candida bombicola-fermented, from D-glucose and mahua Madhuca longifolia fats and glyceridic oils 1573124-58-9 Surfactants
1,4-Benzenedicarboxylic acid, 1,4-dimethyl ester, polymer with 1,2-ethanediol, .alpha.-hydro-.omega.-hydroxypoly(oxy-1,2-ethanediyl) and 1,2-propanediol, ester with .alpha.-methyl-.omega.-hydroxypoly(oxy-1,2-ethanediyl) 152442-40-5 Polymers
Dodecanoic acid, ester with 1,2-propanediol 37321-62-3 Solvents
Diisopropyl succinate 924-88-9 Solvents
Diisopropyl sebacate 7491-02-3 Solvents
Methyl propanediol 2163-42-0 Solvents
Methyl ethyl ketone 78-93-3 Solvents

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 Releases Draft Supplement for 1,4-Dioxane

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In July 2023, EPA announced the release of a draft supplement to the Risk Evaluation for 1,4-dioxane for public comment and peer review.  1,4-dioxane is solvent used to manufacture other chemicals such as adhesives and sealants.  It is also used as a processing aid and laboratory chemical. In addition, some manufacturing processes, such as the process used for making commercial and consumer dish soaps, result in the chemical being present as a byproduct.

The draft supplement focuses on air and water exposure pathways that were not included in the 2020 Risk Evaluation.  The 2020 Risk Evaluation focused on health risks to workers, consumers, and the general public, but not from drinking water, the air, or exposure where 1,4-dioxane is present as a byproduct.  The omission was identified by the Scientific Advisory Committee on Chemicals (SACC) as an oversight.  The SACC informed EPA that failure to assess the risks posed to the general population from exposure to the chemical may present a risk to human health – with an emphasis on drinking water as an exposure pathway.

The draft supplement identified cancer risk estimates higher than 1 in 10,000 for 1,4-dioxane present as a byproduct and higher than 1 in 1 million for general population exposure scenarios associated with 1,4-dioxane in drinking water sourced downstream of release sites and in air within 1 km of releasing facilities.

The draft supplement did note that the risk estimates include inherent uncertainties and the overall confidence in specific risk estimates fluctuates.  However, the document also stated that the information is beneficial in helping the Agency make a determination on whether the chemical poses an unreasonable risk to people with occupational exposure, through sources of drinking water, and breathing air near release sites.

Environmental Groups Call on FDA to Revoke Approval of Fluorinated Plastic for Food Contact

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A coalition of environmental and health groups led by the Environmental Defense Fund have petitioned the Food and Drug Administration (FDA) to revoke approval of fluorinated polyethylene as an indirect food additive.  According to the petition, manufacture of fluorinated polyethylene produces PFAS, including harmful perfluoroalkyl carboxylic acids if water or oxygen is present.

FDA approved fluorinated polyethylene as an indirect food additive—a substance that comes into contact with food, but is not intended to be added directly to food—in 1983.  Since then, according to the petition, the dangers of even minimal exposures to PFAS have become clear, and studies have demonstrated that fluorinated polyethylene results in PFAS migration into food.

The petitioners argue that the substance can no longer be considered “safe” as defined at 21 CFR 170.3(i), which requires “reasonable certainty in the minds of competent scientists that the substance is not harmful under the conditions of its intended use.”  The Agency must consider the following factors when determining whether this safety standard is met:

  • The probable consumption of the substance and any substance formed in or on food because of its use.
  • The cumulative effect of the substance in the diet, taking into account any chemically or pharmacologically related substance or substances in the diet.
  • Safety factors which, in the opinion of experts qualified by scientific training and experience to evaluate the safety of food ingredients, are generally recognized as appropriate.

The petitioners also claim that revoking approval for fluorinated polyethylene is the logical consequence of a previous FDA statement on the substance.  In a 2021 public letter to manufacturers, distributors, and users of fluorinated polyethylene food contact articles, the Agency stated that its regulations “[do] not authorize fluorination of polyethylene containers in the presence of water, oxygen, or gases other than nitrogen.”  The petition, however, alleges that all nitrogen gas contains water and oxygen as impurities.  “If FDA is serious about its claim that no oxygen or water may be present in the nitrogen gas, then the agency has effectively determined that the 1983 approval should be revoked,” the petitioners state.

The petition comes after a July 2022 FDA request for information on food contact uses of fluorinated polyethylene due to PFAS concerns.