Groups Challenge EPA Rule Allowing PBTs in TSCA Exemption Reviews

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New persistent, bioaccumulative, and toxic chemicals (PBTs) should not be eligible for expedited reviews under the Toxic Substances Control Act (TSCA) known as the low volume exemption (LVE) and low releases and exposures exemption (LoREX), environmental groups told the Ninth Circuit on October 17, 2025.

The lawsuit challenges EPA regulations finalized in December 2024 that allow companies to continue to continue to apply those exemptions for certain PBTs.  In their opening brief, the petitioners argue that the rule violates TSCA’s requirement that exemptions protect against unreasonable risk.

“The record, including EPA’s own findings, establishes that the category of new PBTs may—indeed, will likely—present unreasonable risk even when complying with the terms of the LVE and LoREX Exemptions,” the brief states.

Disputed Eligibility Standards

The 2024 rule made PFAS categorically ineligible for the exemptions, as well as PBTs “with anticipated environmental releases and potentially unreasonable exposures to humans or environmental organisms.”  The petitioners contend that this “turns the statute on its head” because it requires that EPA affirmatively determine “that a specific PBT is unsafe” for it to be ineligible.

“In effect, the rule treats an absence of evidence as a reason to expedite the approval of a new PBT chemical, rather than a reason to deny an exemption application,” their brief states.

EPA justified its decision to allow certain PBTs to remain eligible by suggesting that PBT use may not always result in exposure, “such as chemical substances used in a closed system to make semiconductors.”  In the rule, EPA also stated that it “expects that most exemptions for PBT chemical substances will not be granted.”

The petitioners, however, describe EPA’s “zero-release-zero-exposure” scenarios as “fanciful.”   All “new PBTs will eventually be released into the environment, cause exposures, and thereby result in serious injury,” they argue.

Speedier Reviews

LVE and LoREX applications are subject to a 30 day review period, compared to 90-to-180 days for standard reviews, though review backlogs mean reviews often take much longer in practice.  The petitioners claim that LVE and LoREX reviews are less “detailed and comprehensive” than standard reviews, and observe that EPA does not require testing or impose additional restrictions on approved exemption applications—incentivizing companies to use them.

Publicly available EPA data shows that 221 valid LVEs were submitted in fiscal year 2025, which was greater than the number of standard review applications.  No LoREX submissions were received during the year, however.

In August 2025, EPA announced that it had made substantial progress on the LVE backlog thanks to process improvements.  However, its continued progress may be jeopardized by the ongoing government shutdown.

More on EPA’s 2024 new chemicals procedural rule can be found in a previous post.  The case is Alaska Community Action on Toxics v. EPA, No. 25-158 (9th Cir.), filed 1/10/2025.

California Settles $1.75M Lawsuit Over False Plastic Bag Recycling Claims, Launches Another

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California’s attorney general has reached a $1.75 million settlement with four plastic bag producers and initiated a lawsuit against three more, alleging that the companies falsely claimed their plastic bags were recyclable to comply with a state ban on single-use plastic bags known as SB 270.

According to the October 17, 2025, announcement, the defendants in both cases labeled their bags with the “chasing arrows” recycling symbol, made recyclability claims, and self-certified their products as recyclable.  However, when the attorney general’s office sent demand letters requiring that the producers substantiate their claims, they were allegedly unable to provide sufficient evidence.

“[D]espite the manufacturers’ claims and widespread consumer belief, these bags do not, in fact, appear to generally be recyclable, let alone ‘recyclable in the state,’ as SB 270 requires,” the announcement states.

California’s recycling authority, CalRecycle, has “released several reports indicating that the vast majority of plastic carryout bags in California are not being recycled in California,” the most recent complaint states.  Even plastic bags deposited in designated collection bins mostly “end up in landfills or incinerators or are shipped to other countries.”

In addition to violating SB 270, all defendants face alleged violations of California’s Environmental Marketing Claims Act, False Advertising Law, and Unfair Competition Law.  Some of the violations stem from alleged noncompliance with the Federal Trade Commission’s (FTC’s) Green Guides, which are incorporated into California law.

The settlement is subject to court approval.  A copy of the proposed final judgement can be found here.

Proposed 2026 MSGP: Is Your Facility Prepared for PFAS Stormwater Monitoring Requirements?

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EPA’s proposed 2026 Multi-Sector General Permit (MSGP) for stormwater discharges associated with industrial activity would require quarterly monitoring for PFAS—a significant expansion of federal stormwater compliance obligations that facilities should begin preparing for now.

The MSGP implements Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) requirements across 29 industrial sectors.  EPA released the proposed permit in December 2024.  Once finalized, it will replace the current 2021 MSGP, which expires at the end of February 2026.

The MSGP applies only to areas where EPA is the NPDES permitting authority, including Massachusetts, New Hampshire, New Mexico, the District of Columbia, most US territories, much of Indian country, and certain federal facilities.  In a webinar, EPA estimated that 2,000 facilities will be directly affected.  However, because many states model their stormwater NPDES permits after EPA, the MSGP is likely to influence stormwater requirements nationwide.

PFAS Monitoring Requirements

Under the proposed 2026 MSGP, operators in 23 industrial sectors would be required to conduct quarterly indicator monitoring for 40 PFAS compounds for the duration of the permit.  The list includes PFOA, PFOS, PFHxS, PFNA, PFBS, and HFPO-DA (commonly known as “GenX”)—the six PFAS subject to EPA’s April 2024 national drinking water standards.

Testing must be performed using EPA Method 1633, which uses liquid chromatography and mass spectrometry to identify and quantify individual PFAS analytes.  Importantly, the proposed PFAS monitoring is “report-only” and does not include benchmark thresholds or require follow-up actions at this stage.

An EPA fact sheet states that the agency will use the data “to conduct an initial quantitative assessment of the levels of PFAS in industrial stormwater, further identify industrial activities with the potential to discharge PFAS in stormwater, and inform future consideration of potential PFAS benchmark monitoring for sectors with the potential to discharge PFAS.”

Other proposed monitoring updates include new or revised benchmark monitoring parameters for pH, total suspended solids (TSS), chemical oxygen demand (COD), ammonia, nitrate, nitrite, and selected metals in specific industrial sectors.  EPA is also proposing a modified benchmark monitoring schedule, with quarterly monitoring required for the first three years of permit coverage or until twelve quarters of monitoring data are collected.

Timeline and Related Actions

EPA intends to issue the final 2026 MSGP before the 2021 MSGP expires on February 28, 2026.  Once the final permit is published, operators will need to submit new Notices of Intent (NOIs) for coverage under the new permit.

According to the Spring 2025 Unified Agenda, EPA is also advancing several related PFAS initiatives under the CWA and the Safe Drinking Water Act (SDWA):

  • PFAS Monitoring in NPDES Applications: EPA plans to propose a rule in November 2025 to update several NPDES application forms to include PFAS monitoring and reporting requirements.
  • Effluent Guidelines for PFAS Manufacturers: EPA expects to propose revisions to the Organic Chemicals, Plastics, and Synthetic Fibers Effluent Limitations Guidelines and Standards in January 2026, addressing PFAS discharges from facilities manufacturing PFAS.
  • Drinking Water Standards: EPA is also expected to delay compliance deadlines for its national drinking water standards for PFOA and PFOS, and to rescind requirements for the other four PFAS included in the 2024 rule.

The comment period on the proposed 2026 MGSP closed on May 19, 2025.  More on the proposal can be found on EPA’s website.

Supplemented Diet Could Make Waxworms Viable for Plastic Bioremediation

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Caterpillars could play a role in breaking down plastic waste—but only if their diet includes certain supplements, according to a preprint research paper from Brandon University scientists in Canada.

The study examines waxworms, the caterpillar larvae of the greater wax moth, which can eat and digest low-density polyethylene (LDPE), one of the world’s most common plastics.  When fed only LDPE, waxworms show “decreased survival, growth, and development” compared to those eating their natural honeycomb diet.  But researchers discovered a promising combination: equal parts LDPE, honeycomb, and corn syrup.

“Notably, recovery from this diet indicates that LDPE and the associated biodegradation process does not adversely affect larval consumption or fitness,” the research paper states.  As a result, “large-scale rearing of G. mellonella on an optimized, co-supplemented diet could have intriguing potential in plastic bioremediation.”

Other experimental diets testing combinations of sugar, vitamins, protein, and food waste proved unsuccessful.

The paper was released on June 24, 2025, and has not yet been peer reviewed.

Real-World Implementation

Waxworms offer several practical advantages for plastic bioremediation.  According to the researchers, the “larvae are highly tractable in laboratories/facilities, have high reproductive capacity, require a small footprint relative to biomass, and are voracious feeders.”

In addition, while waxworms on the LDPE-supplemented diet had slower development than those an all-honeycomb diet, the paper argues that may be beneficial because “it allows for longer feeding durations and presumably more plastic consumption overall.”

However, the researchers caution against drawing overly optimistic conclusions from the study.  For example, while the experiment used pure LDPE, “all commercially prepared LDPE contain small amounts of stabilizer,” which might impact larval fitness.

Another unknown is whether residual microplastics remain after waxworms digest LDPE.

More information on the paper is available on its SSRN page.

Colorado Proposes Amendments to EPR Regulations to Implement Eco-Modulation

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The Colorado Department of Public Health and Environment (CDPHE) has released a proposed rule to introduce eco-modulation—a system that lowers dues for producers who meet specific sustainability incentives under the state’s extended producer responsibility (EPR) program for packaging.

Under Colorado’s EPR program, producers of packaging and paper products will begin paying dues to a producer responsibility organization (PRO) in January 2026 and annually thereafter.  When CDPHE first adopted its implementing regulations in June 2024, it left the eco-modulation criteria undefined.  The new proposal fills in those details.

Like other state packaging EPR laws, Colorado’s program aims to shift recycling costs from taxpayers to producers.  Through a PRO, producers are responsible for expanding recycling access, increasing recycling rates, and funding the recycling system.

Eco-Modulation Benchmarks

The proposed rule establishes several voluntary benchmarks that allow producers to reduce their dues by achieving certain environmental performance goals:

  • On-package sorting criteria: Inclusion of sorting instructions and guidance directly on packaging.
  • Local end use: Use of materials that are on the state’s “minimum recyclable” list, contain at least 20% US-generated postconsumer-recycled content, and are utilized by an end-market business in Colorado.
  • Compostability: Use of a material that meets ASTM standards for compostability and complies with certain labeling requirements.
  • Case study: Development of a case study demonstrating measurable benefits to recyclability, waste reduction, or other environmental outcomes for a covered material.

Each benchmark achieved earns producers a 1% reduction in dues for each qualifying material.  Bonuses will be applied to 2027 invoices and all invoices thereafter, except the on-package sorting benchmark, which will only be available starting in 2029.

The proposal additionally provides a pathway for producers to dispute the final application of eco-modulation factors to their dues, and eliminates a requirement that producers “submit documents and records to the PRO if they believe they are exempt from covered material.”

According to CDPHE’s website, the public comment period for the rulemaking ended September 28, 2025.  However, the page states that the Solid & Hazardous Waste Commission is currently accepting comment, and “strongly encourages” that comments be submitted by November 7.  CDPHE will present the commission with its proposed amendments on November 18, 2025.

The statement of purpose accompanying the proposed rule can be found here.

New York to Ban PFAS in Carpet Beginning December 2026

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A New York state law will ban the sale of carpet containing or treated with PFAS “for any purpose” starting December 31, 2026—following in the footsteps of other states, such as Colorado and Maryland, which have already forbid the intentional use of so-called “forever chemicals” in carpeting.

Like those states, the law broadly defines PFAS as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”  The term “carpet” is also defined expansively, encompassing most manufactured articles that are:

  • Used by consumers;
  • Placed on walking surfaces (including outdoors); and
  • “Primarily constructed of a top surface of synthetic or natural face fibers or yarns or tufts attached to a backing system made of synthetic or natural materials.”

Handmade rugs, area rugs, and mats are excluded from the law’s scope.

The ban was originally set to take effect in 2024, but state lawmakers postponed its implementation in 2023.  To date, it does not appear that any New York lawmaker has proposed legislation to extend its effective date again, however.

This prohibition is part of New York’s broader carpet extended producer responsibility (EPR) framework.  As discussed in a recent post, the EPR program will require that carpet manufacturers fund a carpet collection program and phases-in post-consumer recycled content requirements.

According to a New York State Department of Environmental Conservation (NYSDEC) webpage, the agency is currently “in the preliminary stage of developing” regulations to implement the program and its associated requirements.

EPW to Hold October 23 Hearing on Chemical Regulation

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The Senate Committee on Environment and Public Works (EPW) will hold a hearing on chemical regulation this week, offering potential insight into Toxic Substances Control Act (TSCA) reform legislation reportedly being developed in the Senate.

The hearing, titled “Examining the Beneficial Use and Regulation of Chemicals,” is scheduled for 10:30am on October 23, 2025.  It will be convened by EPW’s Chemical Safety Subcommittee, which is chaired by Senator John Curtis (R-Utah).

According to EPW’s website, the hearing will include the following panelists:

  • Peter Huntsman, President and CEO of Huntsman Corporation, a chemical manufacturer.
  • Gwen Gross, Senior Technical Fellow at The Boeing Company.
  • Tracey Woodruff, Professor and Director of the Program on Reproductive Health and the Environment at the University of California, San Francisco. Dr. Woodruff previously worked as a scientist at EPA.

The hearing was originally scheduled for July but was postponed.

California Governor Blocks Bill Targeting Microbeads and Glitter

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A California bill that sought to expand state restrictions on the use of small plastic particles known as microbeads in consumer products was vetoed by Governor Gavin Newsom on October 11, 2025.

Beginning in 2029, AB 823 would have prohibited the sale of:

  • Personal care products containing plastic glitter.
  • Non-rinse-off personal care products that use microbeads as an abrasive to clean, exfoliate, or polish.
  • Cleaning products that use microbeads as an abrasive to clean, exfoliate, or polish.

Under the proposal, companies would have been permitted to sell their existing inventories of these products until 2030.

In his veto message, Newsom wrote:

“I support efforts to protect California’s waterways, ecosystems, and public health from the real and significant harms caused by the prevalence of microplastics in our environment.  However, I am not supportive of the approach this bill takes to ban specific ingredients, such as glitter, which may incidentally result in a prohibition on biodegradable or natural alternatives.”

Existing California law already prevents the sale of personal care products that use microbeads to exfoliate or cleanse in a rinse-off product, such as toothpaste.  Products containing less than one part per million by weight of plastic microbeads are exempt.

Two days after the veto, Newsom rejected a separate bill that would have expanded restrictions on the use of PFAS in many consumer products.  More on that can be found here.

FDA Defends Phthalate Food Additive Authorizations in Legal Challenge

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FDA acted reasonably when it denied a petition seeking to remove authorization for five phthalate chemicals used as food additives, the FDA told the D.C. Circuit on August 13, 2025.

The case, Alaska Community Action on Toxics v. FDA, No. 24-1382, marks the latest dispute over the safety of chemicals long used in food packaging and processing.  It centers on five phthalates—DCHP, DEHP, DINP, DIDP, and DAP—that remain approved for food use after industry voluntarily revoked authorizations for 23 other phthalates.  FDA denied the petitioners’ removal request in 2022 and overruled their objections in 2024, prompting the current appeal.

Decades-Old Safety Data

The petitioners argue that FDA’s denial ignores mounting evidence of phthalates’ hazards. “FDA’s authorizations rely on safety assessments conducted at least 40 years ago,” their March 28, 2025, opening brief states.  “In the intervening decades, the evidence of phthalates’ serious health risks—including their capacity to harm children’s brain development and cause life-altering changes in cognition and behavior—has expanded substantially.”  They contend that FDA “arbitrarily dismissed” evidence of toxicity and unsafe exposure levels.

In its opening brief, FDA contends that the petitioners have not established standing to bring the case.  Even the “most specific declaration…fails to provide any objective evidence of imminent harm,” and the petitioners’ brief fails to show “a ‘substantial probability’ their identified members will suffer specific health effects,” FDA states.

Burden of Proof

If the court reaches the merits, a key dispute will be which party bears the burden of proof.  The petitioners argue that the Federal Food, Drug, and Cosmetic Act (FFDCA) only requires “evidence that raises ‘significant questions as to the safety of the authorized uses,’” citing FDA’s 2016 revocations of three PFAS additives as precedent.  FDA counters that the petitioners are trying to “sidestep” their evidentiary obligations.  “Nothing in the statute supports an approach whereby repeal petitions benefit from vastly more lenient burdens than authorization petitions,” the agency’s brief states.

On the factual record, FDA maintains its denial rested on a “fair evaluation” and that its conclusions “about the lack of sufficient scientific data…merit substantial deference.”  The agency alleges flaws in the petition, including its “central premise” that phthalates could be treated as a class—but the petitioners argue that issue was mooted when industry revoked most phthalate authorizations.

A final question is whether FDA was required to hold an administrative hearing before overruling the petitioners’ objections to the petition denial.

More on FDA’s 2022 petition denial can be found in a previous post.

California Governor Vetoes PFAS Bans, Citing Cookware Concerns

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On October 13, 2025, California Governor Gavin Newsom vetoed SB 682, a high-profile bill that would have phased out the use of intentionally added PFAS across a wide range of consumer products.   The legislation represented one of California’s most comprehensive efforts to limit PFAS use, covering items from cookware to cleaning products.

In his veto message, Newsom wrote that “the broad range of products that would be impacted by this bill would result in a sizable and rapid shift in cooking products available for Californians.”  He added that “while this bill is well-intentioned, I am deeply concerned about the impact this bill would have on the availability of affordable options in cooking products.”

Under SB 682, the use of intentionally added PFAS would have been prohibited in cleaning products, dental floss, juvenile products, food packaging, and ski wax beginning in 2028.  The ban on PFAS-containing cookware was set to take effect in 2030.

More on SB 682 can be found in a previous post.