White House Plan to Combat PFAS

/in , ,

The White House announced a multi-agency plan to address the risks posed by PFAS.  The plan involves eight federal agencies including the Departments of Agriculture, Defense, Agriculture, Homeland Security, and Health and Human Services (HHS).   The White House explained that “To safeguard public health and protect the environment, the efforts being announced will help prevent PFAS from being released into the air, drinking systems, and food supply, and the actions will expand cleanup efforts to remediate the impacts of these harmful pollutants.”

A key element in this plan is EPA’s PFAS Roadmap, which addresses PFAS through a number of environmental statutes from TSCA to the Safe Drinking Water Act.

The White House Council on Environmental Quality (CEQ) Chair Brenda Mallory will lead the newly-formed Interagency Policy Committee on PFAS. The committee on PFAS will work to coordinate and help develop new policy strategies to support research, remediation, and removal of PFAS in communities across the country.

The White House Fact Sheet also identified efforts underway at the DOD, FDA, and other HHS agencies.

DOD is conducting PFAS cleanup assessments at the nearly 700 DOD installations and National Guard locations where PFAS were used or may have been released.  The Department expects to complete its initial assessments by the end of 2023.  In addition, DOD manages a large research and development program on PFAS detection, treatment, and destruction—with $70 million devoted to a PFAS-free replacement firefighting foam.

The FDA will expand its testing of the food supply to advance efforts to estimate dietary exposure to PFAS from food.  In addition, FDA will report on the process of phasing out sales of certain PFAS from food contact uses, following the 3-year phase out agreements reached with certain manufacturers in 2020.  Outreach efforts are also underway to ensure that companies are reminded of packaging requirements that are intended to reduce human exposure to PFAS.  The FDA will also monitor the presence of and potential exposure to PFAS in cosmetics.

HHS will review the research on human health and PFAS.  This includes a study by two HHS agencies, Centers for Disease Prevention and Control (CDC) and Agency for Toxic Substances and Disease Registry (ATSDR), in eight states that will provide information about the health effects of PFAS exposure.

EPA PFAS Strategic Roadmap

/in , ,

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 Releases Final Scope Documents Under New Policy

/in , ,

On August 31, 2021, EPA released Toxic Substance Control Act (TSCA) final scope documents for diisodecyl phthalate (DIDP) and diisononyl phthalate (DINP).  The final scope documents are the first to implement the Agency’s new policy for considering exposure to the chemicals from media that are regulated outside of TSCA including air and water, including drinking water.  In a press release on the path forward for risk evaluations, the Agency noted that the previous administration’s “…approach to exclude certain exposure pathways also resulted in a failure to consistently and comprehensively address potential exposures to potentially exposed or susceptible subpopulations, including fence-line communities (i.e., communities near industrial facilities).”  Both risk evaluations were requested by the manufacturer, ExxonMobil, through the American Chemistry Council’s High Phthalates Panel (ACC HPP).

The scope documents for these risk evaluations includes the following information: the conditions of use, potentially exposed or susceptible subpopulations (PESS), hazards, and exposures that EPA plans to consider, along with a description of the reasonably available information and science approaches EPA plans to use in the risk evaluations, a conceptual model, an analysis plan, and the plan for peer review of the draft risk evaluation for this category of chemical substances.

Some of these conditions of use were identified in the manufacturer request as circumstances on which EPA was requested to conduct a risk evaluation. EPA identified other conditions of use from information reported to EPA through Chemical Data Reporting (CDR), published literature, and consultation with stakeholders for both uses currently in production and uses whose production may have ceased

EPA plans to evaluate releases to the environment as well as human and environmental exposures resulting from the conditions of use of these substances that EPA plans to consider in the risk evaluation.  In addition to including occupational exposure, consumer and bystander exposure, and PESS, the scope of the risk evaluations will include general population exposures.  Specifically, EPA plans to evaluate general population exposure to the substances via the oral route from drinking water, surface water, groundwater, ambient air, soil, fish ingestion, and human breast milk; via the inhalation route from air and drinking water; and via the dermal route from contact with drinking water, surface water, groundwater and soil.

In addition to considering the data and information sources provided by the ACC HPP submissions, EPA conducted a comprehensive search to identify and screen multiple evidence streams (i.e., chemistry, fate, release and engineering, exposure, hazard) to inform the development of these scoping documents.

Rite Aid Chemical Policy Update

/in ,

The pharmacy chain Rite Aid expanded its chemical management policy on March 3, 2021 to add transparency, include additional chemicals on their restricted substance list, and update their screening method.  Transparency for the new policy requires suppliers to be more specific in listing their ingredients, such as replacing ‘fragrance’ with the ingredients that make up the fragrance.  These generic terms will be replaced with the substances in those components.  Additionally, Rite Aid is encouraging their suppliers to disclose nonfunctional constituents such as by-products and contaminants.  This additional level of detail on the packaging of products sold at Rite Aid stores will become mandatory by December 2023.

Rite Aid initially had eight chemicals on its restricted substance list (triclosan, propyl paraben, formaldehyde, dibutyl phthalate, toluene, diethyl phthalate, butyl paraben, and nonylphenol ethoxylates).  The new policy has added 61 chemicals.  These chemicals include heavy metals, PFAS, Bisphenols, and solvents.

Along with updating their chemical management policy, Rite Aid has transitioned away from survey-based assessments for identifying chemicals on the restricted substance list.  Rite Aid began the transition process to WERCSmart in September 2018 and has now finish the transition.  Rite Aid suppliers are required to report the substances in their products to WERCSmart.  WERCSmart then analyzes the substances to see if they meet the retailer’s policy.  The chemical management policy does not address CBI issues, although WERCSmart may protect confidential data.

OSHA Proposes Revisions to Hazard Communication Standard

/in , ,

On February 15, 2021, OSHA posted a notice of proposed rulemaking to make changes to the Hazard Communication Standard.  The proposed changes include updates the criteria for classification on health and physical hazard, updating labels, new labeling provisions for small containers, technical amendments for the contents of safety data sheets, and revisions to definitions of certain terms.

The revised criteria for classification of certain health and physical hazards now includes any hazards associated with a change in the chemical’s physical form or from a reaction with other chemicals. The revised provisions for updating labels now includes the date the chemical is released for shipment.  Labels for bulk shipments can be on the immediate container or with the shipping papers, bills of lading or other electronic means that makes it immediately available to workers “in printed form on the receiving end of shipment”.

The proposed changes also state that chemical manufacturers or importers need to update the label for each individual container with each shipment, but do not need to relabel chemicals that have been released for shipment and are awaiting future distribution. For the new labeling provisions for small containers, additional options are available in situations where it is not feasible to use the full label information.  This includes putting the full label information on an outer package, a statement on the outer package that the smaller container needs to remain in the outer package when not in use, and at least has the product identifier on containers less than or equal to 3 ml.

OSHA is taking public comments on all of the proposed changes and the use of electronic template files to create safety data sheets and labels.  The comment period is open until May 19, 2021.

PFAS in the NDAA

/in , ,

The 2021 National Defense Authorization Act (NDAA) addresses PFAS in several ways.  Sections 330 and 334 incentivize developers to create and promote additional alternative firefighting foam to replace the PFAS-containing aqueous film-forming foam.

Section 332 establishes an interagency body on PFAS research and development.  The interagency group will have representatives from at least 19 different agencies. The Director of the Office of Science and Technology Policy will Co-Chairs the group with a representative from another member agency, which will change on a biannual rotating basis. Goals of the organization will be:

  • Removal of PFAS from the environment,
  • Safe destruction or degradation of PFAS,
  • Development of safer and environmentally friendly alternatives to PFAS,
  • Understanding sources of environmental PFAS contamination and exposure, and
  • Understanding the toxicity of PFAS to humans and animals.

Section 333 states that the “Department of Defense may not procure any covered item that contains perfluorooctane sulfonate (PFOS) or perfluorooctanoic acid (PFOA).”  ”Covered items” is limited to nonstick cookware and utensils, and fabrics that have been treated with stain-resistant coatings.  This section does not take effect until April 1, 2023.

Section 335 requires providing notification to agricultural operations located in areas exposed to department of defense PFAS use.  Any agricultural operation within 1 mile of a military or National Guard facility where PFAS has been detected in the ground water, drinking water, or well water must be notified.  Notification must occur within 60 days of the enactment of the NDAA. Notification of any updated testing results must occur within 15 days after validated test results are received.

The NDAA was passed by Congress on December 11, 2020.

Implementing the 2016 TSCA Amendments – Progress & Prognosis

/in , ,

Verdant Attorney Irene Hantman will speak on Wednesday, February 22 at a panel discussion among experts on implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA). The program includes a panel of legal experts, current and former EPA officials, and representatives from environmental NGOs and trade groups. The panel will discuss topics including:

  • The potential effects of the change in Administration
  • Congress’ oversight role
  • Regulatory actions already taken by EPA
  • Regulatory actions required during 2017

The program includes an informal brown bag lunch for in-person participants in Washington, D.C., as well as dial-in participation. If attending in person, please RSVP to Gina Dean at gina.dean@apks.com; teleconference information is forthcoming. This event is sponsored by the Pesticide, Chemical Regulation, and Right-to-Know Committee of the ABA Section of Environment, Energy, and Resources (SEER), with co-sponsorship by the Environmental Law Institute and SEER’s Special Committee on Congressional Relations, and hosted by Arnold & Porter Kaye Scholer LLP.

Please see the announcement [PDF] for more details.

GENERAL INFORMATION:

Location: Arnold & Porter LLP, 601 Massachusetts Avenue, NW, Washington, DC 20001

Arrival Time: 11:45 am; plan to arrive in advance to check in and pass through security; the dialogue will begin promptly at noon and will conclude at 2:00 pm.

Moderator: Larry Culleen, Partner, Arnold & Porter Kaye Scholer LLP

Panelists:

  • Jim Jones, Former Assistant Administrator, US EPA [invited]
  • Wendy Cleland-Hamnet, Office Director, Office of Pollution Prevention & Toxics, US EPA
  • Mike Walls, VP Regulatory & Technical Affairs, American Chemistry Council [invited]
  • Richard Denison, Lead Scientist, Environmental Defense Fund
  • Ernie Rosenberg, President & CEO, American Cleaning Institute
  • Lynn Bergenson, Managing Partner, Bergeson & Campbell
  • Martha Marrapese, Partner, Keller & Heckman
  • Irene Hantman; Verdant Law

 

Help Wanted: Part-Time Environmental of Counsel Position

/in

Verdant Law, PLLC seeks an exceptional environmental lawyer for its Washington, DC office.  The firm needs support for its enforcement defense and compliance counseling practice.  Most matters involve internal investigations, audits, defense of agency enforcement actions, or regulatory compliance counseling.  The practice concentrates on product-based environmental, health, and safety requirements under federal laws, including the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Federal Trade Commission Act (FTC Act), the Federal Hazardous Substance Act (FHSA), and the Occupational Safety and Health Act (OSHA).  (A description of the firm’s practice is available at www.verdantlaw.com.)

The position requires, on average, 25 hours per week and occasional travel.  The hourly rate will be dependent on experience and credentials.

Requirements:

The ideal candidate will have 5 years of experience in environmental law in an administrative or litigation capacity.  Experience in product-oriented fields, such as advertising, toxic tort, product liability, and consumer product regulation will also be considered.

Candidates must possess creative problem-solving skills, good writing skills, strong interpersonal skills, detail orientation, the ability to work independently, and good judgment.  A technical engineering or scientific background is also desirable.

Submittals:

Candidates should submit a resume, two pieces of original written work product that demonstrate the ability to discuss complex issues clearly and concisely in five pages or less, and three references.  To apply, please send application materials to Philip A. Moffat, Managing Principal, at pmoffat@verdantlaw.com.  No calls, please.

GlobalChem presentation: TSCA Enforcement and Compliance Issues for Industry.

/in ,

For those of you who weren’t able to make it to GlobalChem 2014 in Baltimore last week, we’ve posted Irene Hantman‘s presentation on enforcement and compliance issues associated with the Toxic Substances Control Act (TSCA). Irene’s presentation is targeted towards industry members, and was part of a panel discussing various aspects of TSCA compliance and enforcement which also featured Rosemarie Kelley, Director of the Waste and Chemical Enforcement Division at U.S. EPA, and Kindra Kirkeby, HSES Counsel at NewMarket Services. If you have any questions about the presentation, please feel free to contact Verdant or email Irene directly.

Download here: TSCA Enforcement and Compliance Issues for Industry [PDF]

Verdant to sponsor 2014 GlobalChem Conference.

/in

Verdant is proud to announce our sponsorship of the upcoming American Chemistry Council and Society of Chemical Manufacturers & Affiliates GlobalChem Conference and Exhibition in Baltimore, Maryland. The conference will be held March 3-5, 2014 and will cover topics important to the chemical regulations field, ranging from TSCA modernization to California’s Safer Consumer Products program to updates on REACH registration.

Verdant’s Managing Principal, Philip Moffat, said:  “This is one of the premier chemical regulatory conferences in the United States.  We’re proud of our partnership with ACC, SOCMA, and the other conference sponsors.”

We will post more information about Verdant’s participation in the conference as it approaches.