The Chemical Compound—June 2018

This quarterly newsletter provides updates on litigation, regulatory, legislative, and other notable developments involving chemicals of concern to business. Our present focus is on substances which are the subject of regulatory activity or scrutiny by various government agencies and potential litigants. This includes emerging contaminants, such as 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.

Table of Contents

Litigation

• 1,4 Dioxane »»
• Hexvalent Chromium »»
• TSCA Litigation »»

Federal Regulatory & Legislative Action

• EPA Announced Action Plan for PFAS »»
• Ohio Environmental Council Files Petition for Rulemaking Regarding PFASs »»
• Department of Defense Calls for Maximum Contaminant Level for PFOA and PFOS »»
• EPA Examining Effluent Limitations Guidelines for Per- and Polyfluoroalkyl Substances »»
• ATSDR Releases Draft Profile for Perfluoroalkyls »»
• TSCA New Chemical Program "Points to Consider" Finalized »»
• EPA Recognizes Second Anniversary of TSCA Amendments by Releasing Several Required Actions »»
• EPA Issues Draft TSCA Inventory »»
• TSCA Problem Formulation Documents »»
• EPA Adds Nonylphenol Ethoxylates to Toxics Release Inventory Reporting Requirements »»
• EPA Seeks Public Input on Changes to Cost-Benefit Analysis »»

State Regulatory & Legislative Action

• California's Safer Consumer Products Program Finalizes Three-Year Work Plan and Spray Foam System Priority Product, Proposes NPEs in Laundry Detergents as New Priority Product »»
• Michigan Develops Air Screening Levels for PFASs »»
• Governor Indicates Support for New Hampshire Bills Requiring MCLs and Other Regulatory Actions for PFCS »»
• New York Launches Disclosure Program for Household Cleaning Products »»
• Governor of Vermont Vetoes Toxic Substances Legislation; Override Attempt Fails »»
• Washington Enacts Ban on PFAS-Containing Firefighting Foams »»

Litigation

1,4 Dioxane

Toxics Action Center, Inc. v. Casella Waste Systems, Inc. (D.N.H.)

On May 14, 2018, Toxics Action Center, Inc. and Conservation Law Foundation filed a Clean Water Act citizen suit alleging that a landfill in Bethlehem, New Hampshire, discharged pollutants, including 1,4-dioxane, to the Ammonoosuc River without a National Pollutant Discharge Elimination System (NPDES) permit.¹ The plaintiffs assert that the defendants had conveyed the pollutants through a drainage channel and into the river throughout the relevant statute of limitations period and would continue to do so until action was taken to stop the discharges. The plaintiffs seek civil penalties, a court order directing the defendants to cease unauthorized discharges and to remedy, mitigate, or offset the harm caused by the unauthorized discharges.²

Hexavalent Chromium

United States v. U.S. Steel Corp. (N.D. Ind.)

The United States and the State of Indiana have lodged a consent decree that, if approved, would resolve U.S. Steel's liability arising out of its alleged releases of hexavalent chromium into Lake Michigan.³ The City of Chicago and the Surfrider Foundation initially filed suit against U.S. Steel under the Clean Water Act (CWA) in January 2018.⁴ Among other relief, these parties requested that the Northern District of Indiana order U.S. Steel to pay a civil penalty to the United States.⁵

The consent decree states that the US Environmental Protection Agency (EPA), the National Parks Service, and the National Oceanic and Atmospheric Administration have spent over $390,000 responding to the alleged releases.⁶ Under the proposed consent decree, U.S. Steel is required to reimburse these costs, as well as pay $240,000 in National Parks Service System Unit Resources Protection Act damages and civil penalties amounting to more than $600,000.⁷ The consent decree further requires U.S. Steel to develop a Wastewater Operation & Maintenance Plan and a Preventive Maintenance Program Plan for the facility, and submit the plans to EPA for review.⁸ Finally, the consent decree requires U.S. Steel to install an EPA-approved wastewater process monitoring system and to monitor daily for releases of hexavalent chromium.⁹ The City of Chicago and the Surfrider Foundation have stated that they plan to oppose the settlement unless significant changes are made, including increased penalties and additional environmental improvement projects.¹⁰ The public comment period on the consent decree ended on June 5, 2018.

TSCA Litigation

Envtl. Def. Fund v. EPA (D.C. Cir.)

Briefing is complete in the Environmental Defense Fund's (EDF) lawsuit challenging the TSCA Inventory Notification (Active-Inactive) Rule (Rule),¹¹ which EPA promulgated pursuant to the amended Toxic Substances Control Act (TSCA) to identify which chemical substances are active in commerce. Oral argument has not yet been scheduled. EDF's arguments primarily concern the treatment of confidential business information (CBI) submitted pursuant to the Rule and the Rule's exemption of chemical substances manufactured or processed solely for export.¹²

EPA countered EDF's arguments regarding CBI with arguments that TSCA's statutory language was consistent with allowing a manufacturer or processor to maintain an existing confidentiality claim for a chemical substance's identity even if the manufacturer or processor did not itself previously assert a confidentiality claim.¹³ EPA also argued that EDF did not have standing to challenge EPA's selection of substantiation questions for CBI claims and that, in any event, EPA's selection of questions was reasonable. In addition, EPA contended that EDF lacked standing to challenge the Rule's purported lack of consistency with TSCA Section 14's CBI requirements because EDF had "neither proven nor alleged that EPA would be unable to—or even unlikely to—comply with both the Inventory Rule and relevant provisions of TSCA." EPA also pushed back on the argument that it must assign a unique identifier to confidential chemical identities at the same time that a chemical substance is identified as "active" on the Inventory. Finally, EPA said it reasonably exempted manufacturers of chemical substances solely for export from the Rule's requirements because manufacturing for export does not require adherence to pre-manufacture notice requirements. A number of trade groups who intervened in support of the Rule submitted a brief with arguments paralleling EPA's.¹⁴

EDF's reply brief asserted, among other things, that its concerns regarding the Rule's consistency with TSCA Section 14 were not speculative because EPA had systematically violated Section 14's requirements over the past two years.¹⁵ EDF also argued that export-only chemical substances were specifically "nonexempt" for purposes of TSCA Section 8, which the Rule implements.

Safer Chemicals, Healthy Families v. EPA (9th Cir.)

On April 16, 2018, petitioners challenging EPA's Framework Rules for implementing the amended TSCA filed their opening brief in the Ninth Circuit.¹⁶ The Framework Rules establish the processes for prioritizing chemical substances for risk evaluations and for conducting the risk evaluations.¹⁷The petitioners made four primary arguments concerning the Framework Rules' alleged conflict with the amended TSCA's mandate. First, they argued that the Framework Rules violated a statutory mandate that risk evaluations consider all of a chemical substance's conditions of use. Second, they argued that the "use-by-use approach" to risk determinations was at odds with TSCA's requirement for a "holistic" determination. Third, the petitioners contended that EPA had unlawfully omitted certain uses and disposals in its definition of "conditions of use," which the petitioners said must include ongoing and future use and disposal. Fourth, the petitioners identified several aspects of the Framework Rules that they argued would be inconsistent with EPA's obligation to base decisions on "reasonably available" information. The petitioners also set forth arguments supporting their alleged standing.

On April 23, three organizations representing health professionals filed an amicus brief in support of the petitioners.¹⁸ They argued that, by allowing EPA to narrow the scope of exposures considered to those resulting from current sales of chemicals, the Framework Rules undermined the amended TSCA's directive that EPA not consider the costs of regulation when making a risk determination for a chemical substance as well as the amended TSCA's mandate that EPA pay particular attention to vulnerable subpopulations, including pregnant women, infants, and children.

EPA's brief is due on August 6, and trade groups and other parties who have intervened in support of EPA must file their briefs by August 20.

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Regulatory & Legislative Action

Federal Regulatory & Legislative Action

EPA Announced Action Plan for PFAS

On May 22, at a National Leadership Summit on per- and polyfluoroalkyl substances (PFAS) hosted by EPA, EPA Administrator Scott Pruitt announced a four-step action plan for addressing the substances. The four steps are: (1) evaluating the need for maximum contaminant levels (MCLs) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS); (2) taking steps to propose designation of PFOA and PFOS as "hazardous substances" through one of the available statutory mechanisms (potentially Section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act); (3) developing groundwater cleanup recommendations for PFOA and PFOS by fall of 2018; and (4) working with federal and state partners to develop toxicity values for GenX and perfluorobutane sulfonic acid (PFBS).

In mid-April, more than 20 Democratic senators wrote a letter to Administrator Pruitt calling for EPA to set a federal MCL for PFAS in drinking water.¹⁹ The letter noted that EPA had already set lifetime health advisories (LHAs) of 70 parts per trillion for two PFASs: PFOA and PFOS. The letter expressed concern that, since the LHAs are not legally enforceable, they could not be used to determine cleanup standards at contaminated Department of Defense facilities. The letter argued that an MCL is needed "to move forward on remediation activities and protection regimes for drinking water systems." Certain states, including New Jersey, have begun to set MCLs applicable only at the state level that are higher than EPA's LHAs for PFOA and PFOS.

Ohio Environmental Council Files Petition for Rulemaking Regarding PFASs

The Ohio Environmental Council, an Ohio-based environmental non-profit organization, has filed a petition with EPA pursuant to the Administrative Procedure Act, the Clean Water Act, and the Safe Drinking Water Act, calling for EPA to regulate PFAS.²⁰ The petition asks EPA to establish water quality criteria of 0.014 micrograms per liter (µg/l) for PFOA and 0.07 µg/l for PFASs, as well as a National Water Quality Standard for the Ohio River that includes these limitations. The petition also requests that EPA establish Primary Drinking Water Regulations of 0.014 µg/l for PFOA and 0.07 µg/l for PFASs.

Department of Defense Calls for Maximum Contaminant Level for PFOA and PFOS

In March 2018, the Department of Defense (DOD) provided a report to the U.S. House of Representatives summarizing the results of DOD's testing of water systems and private wells. ²¹ The report indicates that DOD has identified over 1,600 wells at 90 military installations where the measured level of PFOS and/or PFOA exceeds EPA's lifetime health advisory level of 70 parts per trillion. The report also discusses steps being taken by the Department of Defense to address PFOA and PFOS contamination at military installations, as well as to prevent further contamination. These steps include phasing out use of Aqueous Film Forming Foam (AFFF) containing PFOS at military installations, and conducting remediation demonstrations at military installations. Most notably, the report states, "EPA must go through the process to establish a Maximum Contaminant Level (MCL) under the Safe Drinking Water Act" for PFOA and PFOS. DOD says that without an MCL in place, DOD is unable to determine to what level of contamination it should be remediating at PFOA- or PFOS-contaminated sites.

EPA Examining Effluent Limitations Guidelines for Per- and Polyfluoroalkyl Substances

In May 2018, EPA announced the release of its Final 2016 Effluent Guidelines Program Plan, which includes plans to commence an "industry-wide" study of PFASs in industrial wastewater. ²² The study is intended to "identify the extent to which [PFASs] are discharged from industrial categories." EPA's report notes that most domestic production of long-chain PFASs, such as PFOA and PFOS, has been phased out, but that long-chain PFASs could still be entering industrial discharges if companies are using existing stocks of long-chain PFASs or importing long-chain PFASs. The Agency's study will focus on industries that may still be using PFASs. The study is intended to "build on" EPA action taken through the New Chemicals Program and EPA's PFOA Stewardship Program, through which companies voluntarily agreed to phase out long-chain PFASs.

ATSDR Releases Draft Profile for Perfluoroalkyls

The Agency for Toxic Substances and Disease Registry (ATSDR) has released for public comment an updated Draft Toxicological Profile for Perfluoroalkyls.²³ There will be a 30-day comment period on the Draft Toxicological Profile. Other items recently made public included a related "ToxFAQ" sheet for the substances²⁴ and revived links to several other previously released documents related to perfluoroalkyl and polyfluoroalkyl substances (PFAS), such as a guide for clinicians.²⁵ ATSDR Profiles are authorized pursuant to Section 104(i)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and typically focus on hazardous substances most commonly found at facilities on the National Priorities List. The revised Draft Profile is an update to prior versions issued in 2015 and 2009. The document summarizes the current data on potential health effects of perfluoroalkyls, a category which is inclusive of 14 substances identified in the Profile (including PFOS and PFOA), and reports provisional Minimum Risk Levels (MRLs) for a limited number of perfluoroalkyl compounds described in the Draft Profile. An MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse noncancer health effects over a specified route and duration of exposure. Thus, MRLs are below levels that might cause adverse health effects in the people most sensitive to such chemical-induced effects.

TSCA New Chemical Program "Points to Consider" Finalized

EPA has released its "final version" of a "Points to Consider" document that was made available initially in a draft for comment during the Fall of 2017.²⁶ The document was among the materials discussed at December 2017 public meeting concerning efforts to update and refine policies and procedures in the Agency's "new chemicals" program. The final document describes in detail EPA's review process for premanufacture notifications (PMNs) and other new chemical submittals made pursuant to the amended Section 5 of TSCA and provides insight into how the process works, the standard meetings and events that occur during the process, terminology used, and other information helpful to entities that prepare such notifications. That the Points document was shared in the 2017 meeting in a manner that implied the procedures had been put in place operationally without the benefit of public comment first created concerns that have been voiced in comments submitted by members of the environmental public interest group community. Accordingly, also made available is the Agency's "responses to comment" document that tracks the comments received and the manner in which EPA has responded through edits to the final document.²⁷

EPA Recognizes Second Anniversary of TSCA Amendments by Releasing Several Required Actions

On the occasion of the second anniversary of enactment of the 2016 overhaul of TSCA, EPA announced it had completed certain actions required to be accomplished by June 22, 2018. These actions include EPA's final strategy to reduce animal testing;²⁸ the final rule on reporting mercury manufacturing and imports;²⁹ and several guidance documents concerning granting access to confidential information about certain chemical substances to state, tribal, and local governments and medical and emergency services personnel³⁰ and EPA's policies on how to describe substances using generic chemical names and unique identifiers.³¹ More in-depth analysis of these actions may become the topics of future advisories.

EPA Issues Draft TSCA Inventory

On April 12, 2018, EPA issued a draft updated version of the TSCA Inventory.³² The draft updated Inventory is of critical importance to chemical manufacturers, importers, and entities that purchase and use chemical substances and mixtures (i.e., processors) because it generally will be unlawful to produce or use a substance not identified as "active" on the final updated Inventory. The draft updated Inventory released by the Agency relied on the following sources of information in listing chemical substances as active: (1) information submitted in 2012 and 2016 pursuant to the Chemical Data Reporting Rule; (2) notices of commencement received by the agency since June 21, 2006; and (3) data submitted by February 7, 2018 pursuant to the "retroactive reporting requirements" of the TSCA Inventory Notification (Active-Inactive) Rule. Processors who use chemical substances previously listed on the TSCA Inventory but not reported to be "active" by manufacturers and/or importers pursuant to the TSCA Inventory Notification (Active-Inactive) Rule have the option to submit a notice to activate the chemical substance. Otherwise, processors must replace the inactive chemical substances in their processes. Processors choosing to submit a notice to activate a substance must do so by October 5, 2018.³³ Processors should be aware that litigation currently pending in the D.C. Circuit (discussed above) could affect EPA's treatment of confidential business information submitted pursuant to the Rule as well as the Rule's application to chemical substances manufactured or processed solely for export.

TSCA Problem Formulation Documents

On June 1, 2018, EPA published problem formulation documents for ten chemical substances under the amended TSCA.³⁴ These documents are an interim step in the risk evaluation process, which will determine whether these substances present an unreasonable risk to human health or the environment. The notice-and-comment period for these documents will remain open until July 26, 2018.³⁵ In these problem formulation documents, EPA narrowed the scope of evaluation for most of the chemical substances. This raises uncertainty as to whether EPA will make findings of risk, which would require it to regulate the substances. However, EPA likely will act with regard to two chemical substances: asbestos and methylene chloride. For asbestos, EPA proposed a significant new use rule (SNUR), which would require obtaining EPA approval prior to manufacturing or processing asbestos for a wide range of uses, including roof coatings and building materials.³⁶ For methylene chloride, EPA may soon finalize a rule proposed at the end of the Obama administration that prohibits certain consumer and commercial uses.³⁷ An advisory comprehensively addressing these problem formulation documents will be published in the near future.

EPA Adds Nonylphenol Ethoxylates to Toxics Release Inventory Reporting Requirements

EPA has added nonylphenol ethoxylates (NPEs) to the list of toxic chemicals subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act and Section 6607 of the Pollution Prevention Act.³⁸ PA listed short-chain NPEs based on evidence that they are highly toxic to fish and other aquatic organisms even at low concentrations. EPA listed long-chain NPEs based on evidence that they break down into short-chain NPEs and nonylphenol (also toxic to fish). Beginning in the 2019 reporting year, facilities that manufacture, process, or use NPEs in amounts above applicable reporting thresholds must report data about environmental releases, waste management quantities, and pollution prevention and recycling. The first report that must include NPE data is due on July 1, 2020.

EPA Seeks Public Input on Changes to Cost-Benefit Analysis

In June 2018, EPA issued an advance notice of proposed rulemaking (ANPRM) soliciting public comment on whether and how it should develop regulations to "provide a consistent and transparent interpretation relating to the consideration of weighing costs and benefits in making regulatory decisions in a manner consistent with applicable authorizing statutes" such as the Clean Air Act, Clean Water Act, and Safe Drinking Water Act.³⁹ EPA also sought input on whether regulations should prescribe specific analytical approaches for quantifying costs and benefits of regulations. EPA said in the ANPRM it had received a number of comments from industry stakeholders about EPA's approaches to cost-benefit analyses in response to its request for comment pursuant to President Trump's Executive Order 13777, "Enforcing the Regulatory Reform Agenda," regarding regulations that might be appropriate for repeal, replacement, or modification. EPA cited comments it received that raised issues regarding considerations of costs that are based, for example, on total emission reductions rather than on consideration of each pollutant separately. EPA also mentioned comments that were critical of justifications of regulatory standards based on "ancillary benefits" or "co-benefits" (i.e., benefits from reductions of pollutants not directly regulated by the regulatory action). Specific topics on which EPA seeks comment include what improvements would result from a general rule specifying how EPA weighs co-benefits; whether EPA should consider adopting uniform definitions for "cost," "benefit," and other terms used across environmental statutes; and whether new regulations should require systematic retrospective review to evaluate the costs and benefits of the regulations. The deadline for submitting comments is July 13, 2018.

State Regulatory & Legislative Action

California's Safer Consumer Products Program Finalizes Three-Year Work Plan and Spray Foam System Priority Product, Proposes NPEs in Laundry Detergents as New Priority Product

On May 1, 2018, the California Department of Toxic Substances Control (DTSC) published its final Three Year Priority Product Work Plan 2018-2020 for the Safer Consumer Products program.⁴⁰ The Work Plan describes the following seven product categories DTSC intends to evaluate: (1) beauty, personal care, and hygiene products; (2) cleaning products; (3) household, school, and workplace furnishing and décor; (4) building products and materials used in construction and renovation; (5) consumable office, school, and business supplies; (6) food packaging; and (7) lead-acid batteries. The first five categories were included in the previous three-year plan. Two product categories included in the previous plan—clothing and fishing and angling equipment—are not included in the new Work Plan. Future Priority Products—product-chemical combinations selected by DTSC for regulation—will be identified from the seven categories in the new plan.

Later in May, DTSC opened a comment period on a Product-Chemical Profile for nonylphenol ethoxylates (NPE) in laundry detergent as part of its proposal to list NPEs in laundry detergent as a Priority Product.⁴¹ NPEs are surfactants used in a variety of consumer products; DTSC is considering NPEs in laundry detergents as a Priority Product due to NPEs' impacts on the growth, reproduction, and development of aquatic organisms. The comment period was scheduled to close on June 25, 2018.

In addition, as of July 1, 2018, spray polyurethane foam systems with unreacted methylene diphenyl diisocyanates will be listed as a Priority Product in the Safer Consumer Products program, triggering a requirement for manufacturers of such products to provide notification to DTSC by September 1, 2018 and take further steps thereafter.⁴²

Michigan Develops Air Screening Levels for PFASs

The Michigan Department of Environmental Quality (MDEQ) has developed air toxics screening levels for PFOA and PFOS of 0.07 micrograms per cubic meter based on an average measured over 24 hours.⁴³ Screening levels are used in the Permit to Install regulatory program. On March 15, 2018, MDEQ released derivation memos with information on how the screening levels were set. MDEQ said it was not aware of any facilities currently emitting PFOA or PFOS, but the standards would be applicable to any future emissions.⁴⁴ The comment period closed on April 16, 2018, and MDEQ indicated it had received no substantive comments.⁴⁵

Governor Indicates Support for New Hampshire Bills Requiring MCLs and Other Regulatory Actions for PFCs

New Hampshire's House and Senate passed legislation that would require the State to initiate a rulemaking process by January 1, 2019 to adopt MCLs for PFOA, PFOS, perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS).⁴⁶ The legislation also requires establishment of ambient groundwater quality standards for PFNA and PFHxS, a review of existing ambient groundwater standards for PFOA and PFOS (previously set at 70 parts per trillion in 2016⁴⁷), and development of a plan to establish surface water quality standards for PFOA, PFOS, PFNA, and PFHxS. In addition, the legislation creates a framework for regulating air emissions of PFCs. In press releases on April 26 and May 3, Governor Chris Sununu said he looked forward to signing the legislation into law.⁴⁸

New York Launches Disclosure Program for Household Cleaning Products

On June 6, 2018, New York's Department of Environmental Conservation (NYDEC) finalized its policy establishing a Household Cleansing Product Information Disclosure Program.⁴⁹ Beginning on July 1, 2019, manufacturers of covered domestic and commercial cleaning products must post information about intentionally added ingredients (other than fragrances) and nonfunctional ingredients present above trace quantities on their websites. Independently owned and operated manufacturers with 100 or fewer employees have until July 1, 2020 to comply. Disclosure requirements for other categories of ingredients will be phased in on July 1, 2020 (for fragrance ingredients, and also for nonfunctional byproducts and contaminants on a short list of chemicals of concern) and on January 1, 2023 (for nonfunctional byproducts and contaminants on longer lists of chemicals of concern that are present at or above certain thresholds). Manufacturers may assert confidentiality claims for trade secret or confidential commercial information. The policy provides guidance for more general disclosures when information is withheld as confidential and requires that the presence of an ingredient listed as a chemical of concern be disclosed regardless of whether information about the ingredient is withheld. The degree to which manufacturers withhold confidential information will be reflected in a "level" of disclosure assigned under the policy; the website must prominently display this information about the extent of disclosure. In general, manufacturers must include the following information about ingredients: Chemical Abstracts Service Registry Number and chemical name; percentage of content by weight; the ingredient's presence on lists of chemicals of concern; presence of nanoscale materials; and the ingredient's functional purpose. By July 1, 2020, manufacturers must also provide information on research conducted by the manufacturer or at the manufacturer's direction on the environmental and health effects of covered products or ingredients in covered products. Manufacturers must submit a form to NYDEC signed by a senior management official to certify their compliance with the program by the applicable effective dates and every two years thereafter.

Governor of Vermont Vetoes Toxic Substances Legislation; Override Attempt Fails

In mid-April, Vermont Governor Phil Scott vetoed legislation that would have modified Vermont's toxic substances regulatory scheme. The legislation, S.103,⁵⁰ proposed the creation of an "Interagency Committee on Chemical Management," made up of members of the State's Agency of Natural Resources and Department of Health, among others. Under the legislation, the Interagency Committee would be required to report to the Vermont legislature annually regarding federal changes to chemical inventories that occurred during the preceding year and recommend actions to address risks to human health and the environment from exposure to "chemicals of high concern." 

The legislation also proposed amendments to Vermont's drinking water laws. Under the legislation, new groundwater sources would have to be tested for contaminants including lead, fluoride, and "any other parameters required by the [Agency of Natural Resources] by rule," before they may be used for drinking water. Finally, the legislation would have amended the State's "Chemicals of High Concern to Children" statute.⁵¹ This statute is intended to reduce the exposure of vulnerable populations, including children, to toxic substances "particularly when safer alternatives exist."⁵² The legislation would have allowed the Vermont Commissioner of Health to amend the State's "list of chemicals of high concern to children" if a government or university report demonstrates that the chemical causes certain health effects in children or is persistent, bioaccumulative, and toxic. The Commissioner of Health could also, in consultation with a working group, regulate "the sale or distribution of a children's product containing a chemical of high concern to children." 

Governor Scott vetoed the bill because of "concerns over economic impact." ⁵³ In his statement explaining his veto, he also expressed that he viewed Vermont as having "already high standards around chemicals of high concern in children's products," and specifically requested the removal of the section of the legislation that would allow the Commissioner of Health to amend the state's list of chemicals of high concern to children. ⁵⁴ The Senate voted to override the Governor's veto a few days later.⁵⁵ However, on April 25, a vote to override the veto in the Vermont House of Representatives failed by four votes.⁵⁶

Washington Enacts Ban on PFAS-Containing Firefighting Foams

Four days after Washington Governor Jay Inslee signed a bill that could potentially result in prohibiting use of PFAS in food packaging,⁵⁷ the governor signed a bill prohibiting the use, manufacture, sale, and distribution of "Class B firefighting foams" to which PFAS chemicals have been intentionally added.⁵⁸ Beginning July 1, 2018, the legislation prohibits the discharge or use for training purposes of such firefighting foams. Beginning July 1, 2020, the legislation bars manufacturers from manufacturing, selling, or distributing PFAS-containing firefighting foams, except where federal law requires inclusion of PFAS chemicals or where the firefighting foams are for use at fuel storage and distribution facilities, oil refineries, or chemical plants. Also beginning July 1, 2018, manufacturers of firefighting personal protective equipment must provide written notice if the equipment contains PFAS chemicals. The notice must state the reason why the PFAS chemicals are added to the equipment.

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© Arnold & Porter Kaye Scholer LLP 2018 All Rights Reserved. This newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.