On August 26, 2022, the US Environmental Protection Agency (EPA) released a pre-publication copy of its much-anticipated proposed rule adding perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the list of “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). EPA asserts that this regulatory escalation of PFOA and PFOS will facilitate faster cleanup of contaminated sites and reduce exposures to these “forever chemicals.” If finalized, these hazardous substances designations will have significant and immediate impacts on many industries, from creating new reporting obligations to increased compliance, enforcement, and litigation risks related to site cleanup. EPA’s efforts involving PFOA and PFOS fall within the broader, whole-of-agency approach to addressing PFAS first announced in its PFAS Strategic Roadmap and represent its first ever exercise of its authority under CERCLA section 102(a) to designate a hazardous substance.

Continue Reading Liability Looms Large as EPA Seeks Naming Certain PFAS as CERCLA Hazardous Substances

On June 15, 2022, the United States Environmental Protection Agency (EPA) released drinking water health advisories [1] for certain per- and polyfluoroalkyl substances (PFAS), resulting in the establishment of:

  1. Near zero updated interim advisory levels for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) that are not only orders of magnitude below previously established levels, but that are also below detectable levels and, notably, were issued in advance of completion of peer review by EPA’s Science Advisory Board (SAB); and
  2. Newly issued final advisories at low levels for GenX and PFBS chemicals that have been used as replacement chemicals for PFOA and PFOS.


Continue Reading EPA Issues Near Zero Drinking Water Health Advisories for Certain PFAS

 On October 18, 2021, the US Environmental Protection Agency launched its PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024 (“Roadmap”)[i] setting forth its “whole-of-agency” approach to address per- and polyfluoroalkyl substances (PFAS). The Roadmap sets forth timeframes for EPA actions to address PFAS across environmental media and under various statutory authorities including the Toxic Substances Control Act (TSCA), Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Safe Drinking Water Act (SDWA), Clean Water Act (CWA) and Clean Air Act (CAA). As such, EPA’s implementation of the Roadmap, including key initiatives rolled out in the days following its release, will affect a broad spectrum of industry sectors and facilities throughout the PFAS lifecycle who may face new and expanded regulatory requirements and obligations.
Continue Reading EPA Issues PFAS Strategic Roadmap Swiftly Followed by Other Key PFAS Announcements

In a dramatic announcement last week, EPA suggested that if companies import, manufacture, or process a finished good for commercial sale, and that product is not a pesticide, not a firearm, not a tobacco product, and not a food, food additive, drug, cosmetic, or device, they will need to know all chemicals contained in those products. We explain more about this below.

EPA has traditionally declined to extend most of its chemical regulations to finished goods, which are known as “articles” under the Toxic Substances Control Act (TSCA), on the grounds it would be enormously difficult for importers of complex consumer products to determine the chemical identity of each chemical substance in these products. Industry stakeholders have generally supported this approach and have long taken the position that supply chains are too complex to expect finished product manufacturers to be aware of all chemicals in those products.

Continue Reading EPA May Require Companies To Know All The Chemicals In Products They Make Or Sell

8.18.2021 EPA Finalizes Hazard Assessments for Two Fuel Additives (ETBE and tert-Butanol):

On August 18th, EPA finalized the long-awaited hazard assessments for both Ethyl Tertiary Butyl Ether (ETBE) and tert-Butyl Alcohol (tert-Butanol).  ETBE was previously added to gasoline to increase its octane levels. It is still registered with EPA for use as a fuel additive, but it is not used currently in the United States.  tert-Butanol is one of the primary metabolites of ETBE and has also been used as a fuel oxygenate. It is also used for other purposes including as a solvent and as a dehydrating agent.
Continue Reading ICYMI: EPA’s IRIS Program is Ramping up its Activity for chemicals, including PFAS; EPA’s TSCA Program Releases Guidance for Exemptions to CDR Reporting

Care about Drinking Water Regulations?

7.22.2021 Request for Comment and Public Workshop for California Drinking Water Public Health Goals for PFOA and PFOS: The California Office of Environmental Health Hazard Assessment (OEHHA) released a draft document for public review describing proposed Public Health Goals (PHGs) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) in drinking water. A PHG is the level of a drinking water contaminant at which adverse health effects are not expected to occur from a lifetime of exposure.  PHGs published by OEHHA are considered by the State Water Resources Control Board in setting drinking water regulatory standards (Maximum Contaminant Levels, or MCLs) for California. The proposed PHG of 0.007 parts per trillion (ppt) for PFOA is based on kidney cancer in humans and the proposed PHG of 1 ppt for PFOS is based on liver and pancreatic tumors in laboratory animals. The draft technical support document can be found here. Public comments are due September 28, 2021. Details about how to send comments and a public workshop that will be held on September 28, 2021 can be found here.
Continue Reading ICYMI: Recent Chemical and PFAS Agency Activities

The EPA Office of Water has taken a major step towards further regulation of per- and polyfluoroalkyl substances (PFAS) under the Clean Water Act.  On March 17, it published an advance notice of a proposed rulemaking (ANPRM) that could lead to development of effluent limitations guidelines (ELGs), pretreatment standards, and new source performance standards for PFAS manufacturers, formulators, and possibly other industries now being studied by EPA.  86 Fed. Reg. at 14,560.  These industries include pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports.  The ANPRM is open for public comment through May 17.

Continue Reading EPA Advances Efforts to Address PFAS in Industrial Discharges

On June 11, 2020, the California Assembly passed the Toxic-Free Cosmetics Act, Assembly Bill (A.B.) 2762[1], by a bipartisan vote of 54-0.  If enacted by the Senate, the law would be the first in the United States to ban twelve ingredients, including mercury and formaldehyde, from beauty and personal care products sold in California due to toxicity concerns.
Continue Reading Cosmetics Sold in California are Set for a Face Lift

California’s Proposition 65 (Prop 65), adopted in 1986 by state voters, has long been considered among the most far-reaching right-to-know and toxic chemical reduction statutes in the country. It now has competition from Washington State’s Pollution Prevention for Healthy People and Puget Sound Act (the “Act”), SSB 5135 (Chapter 292, 2019 Laws), signed into law on May 8, 2019, by former 2020 presidential candidate Governor Jay Inslee. Numerous commentators have called the Act, the nation’s “strongest” policy for regulating toxic chemicals in consumer products.
Continue Reading Washington State Ramps Up Chemical Regulation