Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA
On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.
U.S. Environmental Protection Agency Releases Draft Risk Evaluation Under the Toxic Substances Control Act for Formaldehyde
On March 15, 2024, the U.S. Environmental Protection Agency (EPA or the Agency) published its draft risk evaluation under the Toxic Substances Control Act (TSCA) for formaldehyde. This proposal is one of a series of risk evaluations EPA is conducting as required by the 2016 amendments to TSCA.
U.S. EPA Finalizes Rule Limiting Confidentiality Designations Under the Toxic Substances Control Act
On May 31, 2023, the U.S. Environmental Protection Agency (EPA) finalized a rule designed to tighten confidential business information (CBI) designations in submissions under the Toxic Substances Control Act (TSCA). EPA has touted this rule as providing “transparency” and providing the agency leeway to make “more health and safety data publicly available more quickly.” Given the sensitive nature of the data often provided in TSCA submission, regulated entities should carefully consider the provisions of the new rule and what steps they must take to ensure that confidential information is not subject to public disclosure.
U.S. EPA Adds 12 Chemicals to Toxics Release Inventory
On November 30, 2022, the U.S. Environmental Protection Agency (EPA) finalized a rule that adds 12 chemicals to the list of chemicals subject to Toxics Release Inventory (TRI) reporting requirements.[1] Facilities that are covered by TRI and meet reporting requirements for these chemicals will now be required to report to EPA on quantities of these chemicals that are released into the environment or otherwise managed as waste. The first reports on these chemicals will be due to EPA July 1, 2024, for calendar year 2023 data.
EPA Notifies Plastics Container Industry of Potential Presence of PFAS and TSCA Compliance Requirements
On March 16, 2022, the U.S. Environmental Protection Agency (EPA) notified the fluorinated high-density polyethylene (HDPE) industry in a letter that per- and polyfluoroalkyl substances (PFAS) could be formed in HDPE containers or similar plastics as a byproduct, which may trigger notification requirements under the Toxic Substances Control Act (TSCA) and be a violation of TSCA as contamination. (more…)
Federal and State Legislative Activity Continues on PFAS
Federal and state lawmakers continue to advance legislative efforts to address per- and polyfluoroalkyl substances (PFAS). PFAS have been used in a variety of consumer products and industrial processes and are often recognized for use in nonstick cookware, waterproof apparel, and fire-fighting foam. The U.S. House of Representatives voted this week to pass legislation that would further regulate PFAS. In a bipartisan vote of 241 to 183, lawmakers advanced HR 2467, the PFAS Action Act of 2021, which would impose federal requirements to address PFAS under many environmental statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Safe Drinking Water Act, and the Toxic Substances Control Act.
New Information Collection Request for Ethylene Oxide Air Emissions
On May 10, 2021, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register requesting comments on a new request for information to the commercial sterilization and fumigation sector about the use of ethylene oxide (EO). The request, which was initially distributed to nine EO commercial sterilization facilities, is part of EPA’s technology review of the National Emissions Standards for Hazardous Pollutants (NESHAP). EPA explained that “[w]hile [initial] data gathering efforts have been successful, there are still several important information gaps that should be filled prior to any final rulemaking activity.” (more…)
EPA Plans to Increase Reporting Requirements for Toxic Chemicals
On April 29, 2021, the U.S. Environmental Protection Agency (EPA) announced that it plans to add certain chemicals to companies’ annual release reporting requirements. The Emergency Planning and Community Right to Know Act (EPCRA) established the Toxics Release Inventory (TRI) to track releases of certain chemicals that EPA deemed a threat to human health and the environment. EPCRA requires certain facilities to issue annual reports showing their releases of chemicals so that such releases can be included on the TRI.
