United States: The Chemical Compound - January 31, 2018

This quarterly newsletter provides updates to business on litigation, regulatory, legislative, and other notable developments involving chemicals of concern. Our present focus is on certain emerging contaminants, including perfluorinated chemicals (PFCs), hexavalent chromium, trichloroethylene (TCE), 1,2,3-Trichloropropane (TCP), and 1,4-dioxane. We hope you find this publication informative, and we welcome your feedback on chemicals of interest to your organization. Read the entire newsletter online »»

Litigation Update

1,4 Dioxane

  • Suffolk Cty. Water Auth. v. Dow Chemical Co. (E.D.N.Y.)
    The Suffolk County Water Authority filed a lawsuit in December 2017 against Dow Chemical, Ferro Corp., Vulcan Materials Co., Procter & Gamble, and Shell Oil alleging six causes of action relating to the presence of 1,4 dioxane in the New York county's drinking water.

Hexavalent Chromium

  • City of Chicago and Lake Michigan Surfers Sue US Steel
    The suits, filed under the Clean Water Act, allege US Steel contaminated Lake Michigan. The plaintiffs are seeking a range of declaratory and injunctive relief, including a request that N.D. Indiana order US Steel to pay a civil penalty to the United States for CWA violations.
  • Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. (C.D. Cal)
    In November 2017, the Centers for Biological Diversity and Food Safety filed suit against the US Bureau of Land Management seeking injunctive relief to prevent the construction of a pipeline through the Mojave Trails National Monument in California that would carry water from an aquifer beneath property owned by Cadiz Inc. The plaintiffs allege the water would contain levels of hexavalent chromium that "far exceed state and federal safety guidelines."

Challenges to TSCA Rules and Procedures

  • Challenges by several environmental organizations to the Toxic Substances Control Act Risk Prioritization and Risk Evaluation rules have been consolidated in the Ninth Circuit. Industry stakeholders have been granted leave to intervene in the challenges. Opening briefs are due in March 2018.
  • Although EDF's challenge to EPA's TSCA Inventory Notification (Active-Inactive) Requirements Rule, published on August 11, 2017, remains pending in the DC Circuit, entities that imported or manufactured chemical substances that appear on the TSCA Inventory during the 10-year period prior to June 22, 2016 nevertheless must comply with the requirements of the Inventory Reset Rule not later than February 7, 2018. EPA has stated that it will not extend this deadline, and that it expects importers and manufacturers of chemical substances covered by this rule to comply with the February 7, 2018 deadline. Processors will have until October 5, 2018 to complete the reporting requirements.
  • The NRDC recently filed suit in the Second Circuit to challenge EPA's announcement of the procedures that the Agency will use to review new chemical substances for which notifications must be submitted to EPA prior to the substances entering commerce in the United States.

Federal Regulatory & Legislative Action

Office of Management & Budget Reviewing EPA Fees Rule

In late December 2017, the Office of Management and Budget received EPA's proposed rule to establish service fees intended to offset EPA's TSCA implementation costs (e.g., fees for submissions made in response to chemical testing requirements, new chemical and new use notification requirements, and risk evaluation and risk management requirements).

EPA to Revisit Proposed Amendments to the Significant New Use Rule (SNUR) for Long-Chain Perfluoroalkyl Carboxylate Substances

EPA intends to reissue certain provisions of amendments initially proposed in 2015 as a supplemental proposal that could include new proposed amendments that were not part of the original. While the substance of these amendments is not known at this time, stakeholders can expect that, as with previous SNUR amendments, the proposed requirements will only apply to "new" (i.e., not ongoing) uses.

EPA Updates Vapor Intrusion Screening Level (VISL) Calculator

Based on revised Regional Screening Levels that were published in November 2017 and are used to develop risk-assessment guidance for the Superfund program, the VISL Calculator identifies chemical substances that may be toxic through the soil gas vapor intrusion pathway and recommends risk-based screening levels for groundwater, soil gas and indoor air.

EPA Announces Superfund Sites Targeted for "Immediate, Intense Action"

This list of 21 priority Superfund sites includes two sites where TCE is a primary contaminant—the Orange County North Basin site and the Des Moines TCE site—as well as numerous mining sites such as the Anaconda Copper Mine in Nevada and the Bonita Peak Mining District in Colorado.

EPA Begins Cross-Agency Effort to Address PFAS

In its December 4, 2017 announcement, the Agency promised to (1) announce short-term EPA actions to assist local authorities in addressing PFAS contamination; (2) increase coordination with state, local, and tribal authorities; (3) intensify research efforts to identify methods to measure PFAS; and (4) increase communications with state, local and tribal authorities, and the public regarding the health impacts of PFAS.

Government Accountability Office Releases Report on Cleanup of Military Bases

The October 2017 report assesses the extent to which DOD has collected data to determine compliance with drinking water standards and taken action to address elevated levels of PFCs in drinking water at or near military bases. It notes that DOD has been unable to determine the total cost of addressing PFC contamination at affected military installations.

Defense Appropriations Provide Funding for PFC Study

President Trump signed a defense appropriations bill in December 2017 that includes $7 million for a Centers for Disease Control and Prevention study that will include an exposure assessment and will focus on PFC contamination at current and former military installations.

State Regulatory & Legislative Action

New York

The Drinking Water Quality Council, established in the 2017-2018 state budget to offer guidance regarding emerging contaminants, held its first meeting in October 2017, focusing on 1,4 dioxane contamination of groundwater on Long Island. The Council is required to recommend an enforceable guideline for 1,4 dioxane in groundwater in 2018.

Washington

In September 2017, the Department of Ecology added 20 compounds to the Children's Safe Products Reporting list, including PFOA, bisphenol F, and decabromodiphenyl ethane. Manufacturers of children's products that are offered for sale in Washington and that contain chemicals on the list are required to report information regarding where, why, and to what extent the chemical is being used in the product.

California

California listed PFOA and PFOS as developmental toxicants under Proposition 65 in November 2017. As a result, businesses that may expose persons to PFOA or PFOS either through consumer products, occupational exposure, or through environmental exposure (water, soil, or air) must provide "clear and reasonable warning[s]" about the potential negative health impacts of exposure.

New Jersey

NJDEP announced in November 2017 that it will set formal maximum contaminant levels of 14 ppt of PFOA and 13 ppt of PFNA in drinking water. The new MCLs are substantially lower than EPA's health advisory for PFOA, and NJDEP has received pushback from some municipal authorities and industry groups.

Michigan

  • Governor Rick Snyder recently signed a bill authorizing $23 million in spending to clean up PFAS contamination at 28 state sites, including the Wolverine World Wide site where PFAS contamination in nearby groundwater exceeds 490,000 ppt. He also formed a task force to coordinate the state's response to PFAS contamination.
  • In December 2017, seven Democratic members of the state legislature introduced legislation to set a drinking water standard of 5 ppt for per- and polyfluoroalkyl substances. If the standard becomes law, Michigan would have the lowest drinking water standard for these substances in the country.

The Department of Environmental Quality established drinking water standards for PFOA and PFOS of 70 ppt, effective January 10, 2018.

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