Class Action Targets 3M and Chemours for Suppressing PFAS Risks in Carpeting

/in ,

Two Minnesota consumers who own PFAS-treated carpeting have sued 3M and Chemours, alleging that the chemical companies collaborated for decades to suppress information about the health and environmental risks of PFAS.

According to the complaint, the defendants knew that PFAS were dangerous as early as the 1950s but knowingly withheld evidence of their harms from EPA and the public.  The plaintiffs allege that when these companies shifted from using long-chain PFAS like PFOA and PFOS to shorter-chain variants like GenX and PFBS, they baselessly claimed that the shorter-chain variants were safer.  And even after many carpet manufacturers and retailers stopped making and selling carpeting containing PFAS, the complaint states that the defendants “continued to lie about the harms caused by [these] products.”

Products made by the defendants were used to treat carpets to make them stain- and soil-resistant.  However, the suit claims that carpet manufacturers were unaware that these products were dangerous, in part due to false or misleading safety data sheets provided by the defendants.  The proposed class action seeks to represent all persons who had carpeting installed prior to 2020, alleging that the defendants’ PFAS products were applied to “virtually all carpets manufactured in the United States” until that year.

The proposed class action’s claims are partially based on internal company documents released through other litigation, including a 2018 settlement reached between 3M and Minnesota over PFAS contamination in drinking water.  That case unearthed documents allegedly showing that 3M discouraged its scientists from discussing the chemicals in writing and stymied research efforts, despite knowledge that PFAS were severely toxic and widely present in human blood.

More large settlements were reached last year.  But the defendants “have not paid a dime for the grievous harms caused by carpets in homes and day-care centers infused with PFAS,” said the plaintiffs, who are seeking damages to replace contaminated carpeting.  These alleged harms include property damage resulting from PFAS emissions from the carpets, which reportedly continue throughout the carpet’s lifespan.

The suit alleges that the defendants violated the Racketeer Influenced and Corrupt Organizations Act as participants in a scheme to conceal PFAS harms for commercial gain.  The suit’s 127 counts also include a myriad of state law claims, including strict products liability and nuisance claims.

The complaint also includes allegations against PFAS manufacturer Daikin, which is not named as a defendant.

The case is Peterson v. 3M Co. (D. Minn.), No. 0:24-cv-0349.

Court Vacates EPA Test Order, Citing Incomplete Evidence in Public Record

/in , ,

On August 28, 2024, the D.C. Circuit issued an order in Vinyl Institute v. EPA, a case challenging a Toxic Substances Control Act (TSCA) test order issued in March 2022.  The mandate signals that neither party intends to appeal the court’s July 5 ruling, which found EPA’s justification for the test order inadequate.

The test order, which required an avian reproduction study of 1,1,2-Trichloroethane, was vacated and remanded to EPA.  However, the panel noted several places in which additional EPA materials would have satisfied TSCA’s “substantial evidence” standard if they were included in the public record, suggesting that EPA would not necessarily be required to perform additional analyses to justify future test orders as long as the analyses were included in the record.

For example, the court ruled that EPA’s “conclusory statements” in the public record on why vertebrate testing was necessary were inadequate, but also said that other documents showed that EPA considered new approach methodologies (as required by TSCA).  However, the court ruled that these documents—although covered by EPA’s brief—were not part of the administrative record that was available to the public, and that therefore “they are not part of the record subject to our review.”

According to the decision, not all studies referenced in the statement of need accompanying the test order were explained or even identified.  Nor did EPA publicly explain why those studies’ findings could not be used to fill the data gap, the court said.

“EPA should have explained why it could not extrapolate mammalian chronic exposure data to avian chronic exposure in its Statement of Need description of reasonably available information,” Judge Karen LeCraft Henderson wrote.  “Identifying close but ultimately inapplicable studies and explaining, in the record, why it could not extrapolate other potentially relevant findings could constitute substantial evidence.”

However, the court upheld EPA’s decision to issue a test order rather than pursuing a rule or consent agreement, agreeing with EPA that timeliness in acquiring the data was sufficient justification. EPA initiated the risk evaluation for 1,1,2-Trichloroethane in December 2019 but has yet to issue a report on its findings.

Judge Henderson also agreed that EPA was not required to demonstrate that exposure may exist at potentially toxic levels before issuing a test order.  That would “reverse[]…TSCA’s allocation of burdens,” the decision states.

Judge Henderson was joined in full by Judge Florence Pan and in part by Judge Justin Walker.  A previous blog post on the case, written after the December 2023 oral argument, can be found here.

DTSC Approves Preliminary Report on 6PPD Alternatives

/in , ,

This August, the California Department of Toxic Substances Control (DTSC) approved a revised stage 1 alternatives analysis report for 6PPD (CASRN 793-24-8) from the U.S. Tire Manufacturers Association (USTMA).  The preliminary report identified seven potential 6PPD alternatives for use in tires, which will be further assessed in the stage 2 alternatives analysis report due in August 2026.

6PPD, or N-(1,3-Dimethylbutyl)-N’-phenyl-p-phenylenediamine, has been used as an anti-degradant in tires since about the 1950s.  In 2020, it was discovered that 6PPD has a transformation product, 6PPD-quinone, that is extremely toxic to salmon and other aquatic species.  According to USTMA’s website, the organization “is not aware of any new motor vehicle tires available today that do not contain 6PPD.”

The seven potential 6PPD alternatives identified by the preliminary report are 7PPD, IPPD, 77PD, CCPD, specialized graphene, octyl gallate, and Irganox 1520, selected based on available information on potential hazards, performance, and chemical and physical properties indicative of exposure potential.  7PPD, IPPD, 77PD, and CCPD come from the same chemical family as 6PPD.  Eliminating the use of 6PPD without replacement is not an option, according to the preliminary report.

The stage 2 alternatives analysis will include a “more in-depth evaluation of hazard and exposure potential,” including additional evaluation of potential transformation products.  “At the end of [stage 2], we are optimistic that we will have identified one or more possible alternatives that hold promise to replace or materially reduce 6PPD in motor vehicle tires,” the preliminary report states.

The initial report was revised due to a notice of deficiency issued by DTSC, which was described by USTMA as “a standard step in the alternatives analysis process” that allows “regulators to provide suggestions and seek clarification about certain parts of a preliminary submission.”  Octyl gallate and Irganox 1520 were added to the list of potential alternatives in the revised report.

DTSC added 6PPD to the list of Priority Products under California’s Safer Consumer Products Program effective October 2023, prompting the alternatives analysis.  The following month, EPA granted a Toxic Substances Control Act citizen petition requesting that EPA take action to prohibit its use in tires.  EPA has since proposed a data call for substances including 6PPD-quinone, discussed in a previous blog post.

EPA Issues Seldom-Used Emergency Order to Suspend Registrations of Pesticide DCPA

/in , , ,

For the first time in almost 40 years, EPA has issued an emergency order under section 6(c)(3) of the Federal Insecticide, Fungicide, and Rodenticide Act to suspend the registrations of all pesticide products containing the active ingredient dimethyl tetrachloroterephthalate (DCPA).

The emergency measure is based on DCPA’s thyroid effects in fetuses, which EPA deemed so severe that continued use of DCPA during the time period required to cancel its registrations would pose an imminent hazard.  According to EPA, thyroid hormone perturbations linked to DCPA “can lead to downstream health problems such as low birth weight, impaired brain development, decreased IQ, impaired motor skills, and decreased bone deposition.”

Occupational exposures to DCPA can be over twice as high (as a factor of body weight) as the level at which the thyroid effects were observed in mouse fetuses, and the herbicide’s residues present risks of concern even 30 days after application to crops, EPA said.  DCPA is also registered for non-agricultural uses, including on golf courses and athletic fields.

American Vanguard Corporation (AMVAC), the sole registrant of DCPA, voluntarily canceled all but two of its DCPA products and their use on turf.  It also voluntarily ceased sale and distribution of the only remaining end-use product until EPA approved product labels that would address DCPA’s risks.  However, EPA “determined that there is no combination of practicable mitigations under which DCPA use can continue without presenting an imminent hazard.”

DCPA is currently undergoing registration review, which occurs every 15 years.  EPA assessed DCPA’s health risks in 2023 after AMVAC submitted a study on its thyroid effects and other information requested by the agency.

The agency intends to issue a notice of intent to cancel DCPA registrations within 90 days of the order, which was published on August 7, 2024.

Also known by its trade name Dacthal, DCPA is used on a variety of crops for weed control.  According to EPA, the emergency order will have a negligible impact on produce prices but may impact growers of crops including bok choy, collards, kale, green onions, and leeks.

Update:

On August 28, 2024, EPA announced that it is initiating a voluntary cancellation of DCPA after AMVAC notified the agency of its intent to cancel the remaining pesticide products.  According to EPA, AMVAC also intends to cancel its international registrations.

Court Finds EPA’s Transparency in New Chemicals Disclosures Reviewable

/in , , ,

EPA’s alleged failure to disclose certain information submitted to its New Chemicals Program is subject to judicial review under the Toxic Substances Control Act (TSCA) and the Administrative Procedure Act (APA), the D.C. District Court ruled on August 20, 2024.

In Environmental Defense Fund v. Regan,  No. 1:20-cv-00762-LLA, five environmental organizations allege that EPA engages in a pattern or practice of violating TSCA’s disclosure requirements for premanufacture notices (PMNs) and applications for test marketing exemptions (TMEs).  The suit’s 10 counts include allegations that EPA failed to publish timely and complete notices of receipt of PMNs; failed to make health and safety studies, safety data sheets, and other information contained in PMN submissions available for examination; and failed to disclose information claimed as confidential business information when it facially did not qualify as confidential.

EPA moved for judgment on the pleadings, asserting that the plaintiffs are barred from seeking relief under TSCA for most of their claims.  While TSCA’s citizen suit provisions allow persons to compel the agency to perform nondiscretionary duties, EPA argued that the relevant statutory and regulatory provisions “do not impose a date-certain deadline” on EPA.  The agency also argued that judicial review under the APA would be inappropriate because the claims concern activities that are interlocutory in nature and too minor to meet the APA’s threshold for “agency action.”

The court denied EPA’s motion.  Even in instances where TSCA does not set an explicit deadline, the court said that it is sometimes apparent that activities must be taken in relation to other events.  Three of the plaintiffs’ 10 counts were found to fall in this category.  For example, TSCA directs EPA to provide immediate notice of TME applications for public input and requires EPA to make a determination on each application within 45 days.  Since “[n]otice must precede comment” and “comment must precede the EPA’s decision,” “[t]he only logical conclusion” is that notice is required prior to expiration of the 45-day period, the court held.

For the seven remaining allegations—which all concerned the availability of information submitted with a new chemical notification, and for which a deadline for agency disclosure to interested parties could not be ascertained from the statutory structure—the court was unconvinced by EPA’s argument that the APA could not offer relief.  The APA’s definition of agency action has been interpreted expansively by the courts, and the fact that the challenged activities are merely “interim steps” is not dispositive, the decision states.  Importantly, as part of this analysis, the court held that TSCA section 5(b) creates a “freestanding right to information” submitted as part of a new chemical notification.

Judge Loren L. AliKhan also granted the plaintiffs’ motion to compel the administrative record, rejecting EPA’s arguments that the claims should be understood as “failures to act” rather than actions—meaning that they would not have an administrative record.  However, she did not go so far as to agree with the plaintiffs on the merits.

According to EPA, since the case was filed in 2020, the agency has made “substantial and ongoing improvements to its practices for preparing and publishing public notices and public files as part of its ongoing commitment to improving the administration and transparency” of its New Chemicals Program.

In addition to the Environmental Defense Fund, the plaintiffs include the Center for Environmental Health, the Environmental Health Strategy Center, the Natural Resources Defense Council, and the Sierra Club.

EPA Updates Safer Choice and Design for the Environment Standard

/in , , ,

On August 8, 2024, EPA finalized updates to the Safer Choice and Design for the Environment Standard.  The revised standard implements sustainable packaging criteria and introduces a Safer Choice Cleaning Service Certification for cleaning service providers.

Created in 2009, the Safer Choice program allows products such as cleaners and detergents to carry a special label if they meet human and environmental health requirements.  Products must meet both holistic and component-level requirements to be approved for partnership with EPA, which is renewable and lasts three years.  Design for the Environment operates under the same standard and applies specifically to antimicrobial products.

Under the updated standard, primary packaging for certified products can no longer contain intentionally added PFAS.  The revisions also require packages to either be 1) designed to be reused or 2) recyclable and made of a certain percentage of recycled content.

The update also inaugurates a certification program for cleaning services that use certified products “to the maximum extent practicable.”  The agency says that it will consider exceptions on a case-by-case basis, including in situations where limited certified products are available for a certain product class.

Other changes include stricter requirements for pet care products and voluntary criteria aimed at reducing carbon-based energy consumption.  The new standard does not alter the master criteria for ingredients or any of the supplemental requirements for certain product classes.

The update is the first revision to the standard since 2015 and the fourth in its history.  New products must comply with the updated standard immediately.  Existing partnership products must comply within a year after they are notified of the updates.

 

EPA Proposes Risk Management Rule for 1-Bromopropane

/in , ,

On August 8, 2024, EPA published a proposed rule to restrict use of the solvent 1-bromopropane (1-BP) (CASRN 106-94-5).  The proposed rule is the result of the agency’s revised 2022 determination that 1-BP presents an unreasonable risk of injury to human health due to effects including neurotoxicity, developmental toxicity, and carcinogenicity.

According to EPA, 1-BP is used in a wide variety of applications, including “vapor degreasing, aerosol degreasing, adhesives and sealants, and in insulation.”  Data from the Chemical Data Reporting rule shows that annual production of the substance, also known as n-propyl bromide, increased from 15.4 to 25.8 million pounds between 2012 and 2015.  This increase was because 1-BP is “an alternative to ozone-depleting substances and chlorinated solvents,” according to a 2020 EPA risk evaluation.

Under the proposed rule, all consumer uses of 1-BP would be banned except for use in insulation.  EPA is also proposing to prohibit four industrial and commercial uses, including use in adhesives and sealants, dry cleaning solvents, and automotive care products.  EPA estimates that these banned uses represent about 3% of the current annual production of 1-BP.

Other industrial and commercial uses would be subject to a workplace chemical protection program (WCPP), which would implement an inhalation exposure concentration limit for 1-BP of 0.05 ppm as an eight-hour time weighted average.  Use of chemically resistant gloves would also be required for uses including manufacturing, processing, and disposal.

Notably, in an effort to protect fenceline communities, EPA is proposing to prohibit owners or operators from increasing releases of 1-BP to outdoor air to comply with WCPP requirements.

EPA is proposing staggered compliance dates for the prohibited uses, which would become effective in six months for manufacturers, nine months for processors, and in 12 months for distribution to retailers.  Non-federal entities subject to the WCPP would be required to conduct baseline airborne exposure testing within six months and ensure that the inhalation exposure limit is met within nine months.

1-BP was added to the Toxics Release Inventory list of reportable chemicals in 2015 and became the first addition to the list of hazardous air pollutants in 2022.  More on 1-BP’s addition to the list can be found in a previous blog post.

Comments on the proposed rule are due September 23, 2024.

PFDA IRIS Assessment Finalized Amid Ongoing PFAS Reviews

/in , ,

This July, EPA released the final Integrated Risk Information System (IRIS) assessment for PFDA.  PFDA’s toxicological review is the third completed IRIS assessment for a PFAS.  Two additional assessments, for PFHxS and PFNA, are still in progress.

Consistent with the draft, the final PFDA assessment concluded that evidence indicates “PFDA exposure is likely to cause liver, immune, developmental, and male and female reproductive effects in humans, given sufficient exposure conditions.”  However, it had a higher maximum acceptable daily dose, known as an oral reference dose (RfD), than the draft assessment.

The draft’s lifetime and subchronic RfD was 4 x 10-10 mg/kg/day.  But the final RfD was 2 x 10-9, partially due to the use of different points of departure (or the dose at which an effect is first observed) for immune and developmental effects.

July also saw the release of the external peer review report for the PFHxS draft IRIS assessment, and external peer review meetings for the draft PFNA assessment took place from July 30 to August 1.  The most recent update to the IRIS Program Outlook, released in June, did not include expected release dates for the final PFHxS or PFNA assessments.

Following external peer review, EPA revises the assessment, conducts a final agency review, and holds a interagency science discussion before releasing the final version.  It took nine months for EPA to finalize the assessment for PFDA after releasing the external peer review report.

EPA finalized drinking water standards for PFAS including PFHxS and PFNA in May; more on that can be found here.  Additional information on the draft IRIS assessment for PFHxS is available in a previous blog post.

EPA Releases Second Version of Interim Guidance on PFAS Destruction and Disposal

/in , ,

On April 8, 2024, EPA released the second version of its interim guidance on the destruction and disposal of PFAS and PFAS-containing materials.  The updated interim guidance builds on the initial guidance issued in 2020 by providing new recommendations for the management of PFAS-containing materials.

The updated interim guidance focuses on three categories of large-scale destruction and disposal technologies: underground injection, landfilling, and thermal treatment.  For each category, EPA identifies the technology with a lower potential for environmental release of PFAS when compared to other technologies within their category:

  • Permitted Class I non-hazardous industrial or hazardous waste injection wells (underground injection);
  • Permitted hazardous waste landfills (landfilling); and
  • Permitted hazardous waste combustors (thermal treatment).

However, each technology has drawbacks and is only suitable for certain types of PFAS-containing materials.  For example, EPA notes that new information suggest landfills may release more PFAS into the environment than previously understood, and that transportation logistics may limit the types and amounts of PFAS-containing fluids that can be inserted into Class I wells.

EPA emphasizes the limitations of available data and includes a list of prioritized research needs to inform future guidance.  High-priority research needs include information on releases from landfills and data on releases from thermal treatment units.  EPA describes a new analytical method, OTM-50, that it believes will better characterize the products of incomplete combustion.

In addition, the updated interim guidance presents a new evaluation framework designed to assess emerging technologies and determine their suitability for specific PFAS-containing materials. It also includes an updated list of tools to screen for potentially vulnerable populations living near likely PFAS destruction or disposal sites.

EPA was mandated to publish and triennially update the interim guidance by the FY 2020 National Defense Authorization Act.  More information on the updated interim guidance can be found in an EPA fact sheet.

Comments on the updated interim guidance are due October 15, 2024.

Coca-Cola Asks Judge to Dismiss Simply Juice PFAS Suit

/in ,

A proposed class action alleging that Coca-Cola’s Simply-brand juices contain PFAS does not state a plausible claim for relief, Coca-Cola told the Southern District of New York on July 31, 2024.

The plaintiff in Lurenz v. The Coca-Cola Co. alleges that laboratory testing revealed “widespread and uniform” PFAS contamination in Simply juices at levels detrimental to human health.  As a result, the claims made on Simply products—including that the beverages are “All Natural” and “made simply” with “all-natural ingredients”—would mislead a reasonable consumer, the most recent complaint asserts.

The court dismissed the initial complaint for lack of standing in June, but allowed the plaintiff to file a new complaint.  In response, Coca-Cola filed a letter requesting a conference before the company files another motion to dismiss.  The letter argues that the new complaint’s allegations are “even vaguer” than those previously dismissed, making it “impossible to tell” when the plaintiff purchased the contested products.  The plaintiff “still cannot show a concrete economic harm needed to establish Article III standing,” Coca-Cola says.

In addition, Coca-Cola argues that the new complaint still provides insufficient factual detail about the testing that revealed PFAS contamination, which was a factor in the earlier dismissal.  Even if the testing allegations are deemed sufficient, Coca-Cola asserts that the all-natural claims are not misleading.  “[N]o reasonable consumer would understand PFAS—a substance that is not intentionally added to the [juices]—to be an ingredient,” the letter states.

The case is similar to an ongoing suit against L’Oréal, the cosmetics company, for alleged PFAS contamination.  A blog post on that case, written after a dismissal due to standing issues, can be found here.