Articles Posted in Environmental Protection Agency (EPA)

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On June 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) for 18 chemicals derived from the recycling of plastic wastes. 88 Fed. Reg. 39804 (2023). The chemicals were the subjects of premanufacture notifications (PMNs) submitted in 2015 and 2019 and of subsequent consent orders issued by the EPA under the authority of TSCA 5(e) and effective on August 25, 2022. The chemicals include naphtha blends and other pyrolysis oils.

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PFAS-regulation-601945516-300x200In April 2023, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on the designation of seven PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This NPRM followed a proposed rule released in August 2022, which would designate the two most ubiquitous PFAS—PFOA and PFOS—as hazardous substances.

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On April 13, 2023, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on seven potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (See Addressing PFAS in the Environment, 88 Fed. Reg. 22399, Apr. 13, 2023.)

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Per- and polyfluoroalkyl substances (PFAS) continue to garner regulatory attention at the federal and state levels. One of the regulatory milestones set forth in the Biden EPA’s 2021 PFAS Strategic Roadmap was the finalization and implementation of a one-time reporting rule that the Agency had proposed in June 2021 under TSCA Section 8(a)(7). This rule will require manufacturers, including importers, of PFAS to provide EPA with certain information regarding their introduction of PFAS into commerce, as well as on the resulting exposure to and downstream uses of such PFAS. Although the public comment period on this rule has long since closed, we are only months away from the targeted date by which EPA has promised to publish the final regulation. Specifically, EPA must promulgate the final rule by January 1, 2023. Thereafter, subject businesses must submit the requisite information to EPA within six months following the effective date of the final rule.

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On Friday, August 26, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of a long-awaited proposed rule to designate two of the most-studied per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In an accompanying statement, EPA indicated that the proposed rule will be published in the Federal Register within the next few weeks. That publication will commence a 60-day public comment period. EPA appears to be targeting final rule promulgation by Summer 2023.

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On June 15, 2022, the EPA released drinking water health advisory levels for four per- and polyfluoroalkyl substances (PFAS): PFOA, PFOS, PFBS and GenX. The announcement reflects the Biden administration’s continued push to regulate PFAS.

In requesting information from its Scientific Advisory Board (SAB) on PFOA and PFOS last fall, the EPA signaled that it would seek to regulate these two chemicals at concentrations below the existing advisory levels of 70 parts per trillion (ppt). The revised advisory levels for these two substances confirm that suspicion and present new technical challenges in PFAS detection and treatment, as do the new advisory levels for PFBS and GenX.

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(Note: This update involves recent developments on a topic covered in a December 2021 client alert.)

As advised in part by the Biden Administration, developments in the regulation of per- and polyfluoroalkyl substances (PFAS) continue to unfold. Not only did the EPA release its PFAS Strategic Roadmap in October, but it has proposed a potentially significant rulemaking under the Resource Conservation and Recovery Act, initiated a scientific review of the adequacy of its current health advisory level for the two most studied PFAS—perfluorooctanoic (PFOA) acid and perfluorooctane sulfonic acid (PFOS)—and taken steps toward establishing a technical foundation for regulating PFAS air emissions under the Clean Air Act. (Additional impetus for the last action derives from pending congressional legislation.) Additionally, a recent federal court decision in the Northern District of Georgia stands to increase the liability exposure of secondary manufacturers and processors of PFAS products in connection with toxic tort suits involving negligence claims. Meanwhile, state attorneys general are urging continued congressional effort to pass a comprehensive PFAS bill that would expedite and fund several of the PFAS regulatory actions contemplated by EPA.

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Federal efforts to regulate per- and polyfluoroalkyl substances (PFAS) have continued in recent months. Most notably, on October 21, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) released its PFAS Strategic Roadmap. This document promises to establish a comprehensive, whole-of-agency approach to regulating PFAS, by building off the Trump EPA’s 2019 PFAS Action Plan and related federal initiatives. The Roadmap reflects EPA’s intent to regulate a broader range of activities than those contemplated in the 2019 Action Plan, as well as to accelerate the implementation of activities identified in the earlier Agency document.

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In recent years, per- and polyfluoroalkyl substances or, as they are more commonly known, “PFAS,” have been the subject of high-profile litigation and heightened scrutiny by federal and state governments as concerns rise about the risks they present to human health and the environment. This trend is of significant interest to the specialty chemical industry, as well as to manufacturers, importers, and end-users of various chemical products, and treated equipment and parts, because PFAS embodies a vast array of synthetic chemicals—over 7,000, according to some sources—that may be unknowingly present in a company’s products or operations. Moreover, because PFAS regulation is a relatively recent phenomenon, many companies may not know or fully appreciate their nexus to PFAS.

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The term “phthalate” denotes a class of chemicals that have been used since the 1920s to improve the flexibility and durability of plastic. Accordingly, phthalates can be found in hundreds, if not thousands, of everyday products, ranging from food packaging to toys, medical devices, construction materials, textiles, cosmetics, soaps, and fragrances. Their ubiquity has led some to nickname them the “Everywhere Chemical.”

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