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, as well as substances identified by EPA under the 2016 amendments to TSCA for prioritization, risk evaluation, or regulation. We hope you find this publication informative, and we welcome your feedback on chemicals of interest to your organization.

Table of Contents

Litigation

• Hexavalent Chromium »
• TSCA Regulations »

Federal Regulatory Actions

• TSCA Regulatory Actions »
• PFCs »

Federal Legislative Actions

• House and Senate Subcommittees Hold Hearings on PFAS »
• House of Representatives Approves America's Drinking Water Infrastructure Act »

State Regulatory & Legislative Action

• California »
• Minnesota »
• New Jersey »
• Vermont »
• New Hampshire »

Litigation

Hexavalent Chromium

United States v. US Steel Corporation

A consent decree intended to resolve US Steel's liability arising out of alleged releases of hexavalent chromium into Lake Michigan has attracted significant public attention. In April 2018, the United States and the State of Indiana lodged a consent decree that, if approved, would require US Steel to reimburse $390,000 in costs incurred by the United States while responding to the alleged releases and to pay damages and civil penalties to the National Parks Service amounting to more than $600,000.¹ The US Department of Justice accepted comments on the proposed consent decree through June 6, 2018.² The US Department of Justice received over 2,700 comments on the proposed consent decree, including comments from the National Parks Conservation Association.³ The National Parks Conservation Association filed comments to the proposed consent decree, arguing that the consent decree would not fully remediate the losses to the public, would not bring the US Steel facility into compliance with state and federal environmental laws, and would not deter the US Steel facility from committing future violations.⁴

While the Department of Justice continues to review comments submitted on the proposed consent decree, the Surfrider Foundation and the City of Chicago have moved to lift the stay in their Clean Water Act case against US Steel, filed in January 2018.⁵ US Steel opposes lifting the stay,⁶ arguing that nothing has changed since the court implemented the stay in April 2018.⁷ The Surfrider Foundation and the City of Chicago argue that the stay should be lifted because the proposed consent decree will not sufficiently address the harms caused by the discharges of hexavalent chromium, and because US Steel has refused to negotiate with the parties in good faith.⁸

TSCA Regulations

Challenge to TSCA Inventory Notification (Active-Inactive) Rule

Oral argument has been scheduled in the Environmental Defense Fund's (EDF) challenge to EPA's Toxic Substances Control Act (TSCA) Inventory Notification (Active-Inactive) Rule (TSCA Inventory Rule).⁹ EDF filed the litigation in the DC Circuit in September 2017 challenging the rule, which EPA promulgated pursuant to the 2016 amendments to TSCA to identify which chemical substances are active in commerce.¹⁰ Briefing was completed in the case in July 2018, and oral argument is scheduled for October 12, 2018.

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.¹¹ In its July 5 brief, EDF reiterated its position that the provision of the rule allowing parties to file a Notice of Activity to maintain the confidentiality of CBI, even if they did not submit the original materials "that caused the specific chemical identity to be listed on the confidential portion of the inventory,"¹² violates the amended TSCA.¹³ In its July 5 brief, EDF also repeated its position that the TSCA Inventory Rule improperly exempts chemicals manufactured for export-only from the requirements of the rule.¹⁴ In its final brief, EPA argues that the approach to handling CBI under the TSCA Inventory Rule is consistent with the plain language of TSCA Section 8, which requires manufacturers and processors of chemical substances to notify EPA if they want to maintain an existing CBI claim, not necessarily their or its existing CBI claim.¹⁵ With respect to chemical substances manufactured solely for export, EPA argues that, although TSCA does not explicitly exempt this purpose from the requirements of the TSCA Inventory Rule, EPA has interpreted the statute to exempt chemical substances manufactured solely for export because these chemical substances are exempt from other TSCA requirements.¹⁶

Challenge to Risk Evaluation & Risk Prioritization Rules

EPA has moved to remand three provisions of its Risk Evaluation Rule that are being challenged by Safer Chemicals Healthy Families and other organizations (Petitioners) in the Ninth Circuit.¹⁷ Two of these provisions, 40 C.F.R. §§ 702.37(b)(4) and 702.37(b)(6), address how the Agency collects and analyzes information in the context of risk evaluations. Section 702.37(b)(4) requires manufacturers requesting that EPA conduct a risk evaluation of a particular chemical substance to include with their request a list of existing information relating to risks posed by the chemical substance when used as described by the manufacturer.¹⁸ Section 702.37(b)(6) requires EPA to comply with TSCA Section 26, which mandates that EPA use scientific information and methods "consistent with the best available science."¹⁹ EPA has stated that, based on arguments raised by the Petitioners, it will reconsider these provisions.²⁰ The other provision that EPA wishes to remand, 40 C.F.R. § 702.31(d), imposes penalties upon persons who submit "inaccurate, incomplete, or misleading information pursuant to a risk evaluation."²¹ Safer Chemicals Healthy Families has consented to EPA's request to remand 40 C.F.R. § 702.31(d), but opposes EPA's request to remand the other two provisions.²²

Challenge to Procedures for Review of New Chemical Substances

The Natural Resources Defense Council (NRDC) has withdrawn its challenge to EPA's procedures for review of new chemical substances for which notifications must be submitted to EPA prior to the substances entering commerce in the United States.²³ NRDC initially filed a lawsuit in the Second Circuit challenging these procedures in January 2018.²⁴ NRDC objected to EPA's decision to implement certain procedures described in a brief "framework" document, which was released to the general public for comment and was described in greater detail during an all-day public meeting held in December 2017.²⁵ NRDC alleged that this framework document was actually a final rule, and thus its issuance without a formal notice-and-comment period violated the Administrative Procedure Act.²⁶ NRDC also alleged that the framework violates Section 5 of TSCA because, pursuant to the framework, EPA is required only to evaluate the intended conditions of use of a substance, rather than all "known," "reasonably foreseen," and "intended uses" of a chemical substance.²⁷ In August 2018, NRDC moved to voluntary dismiss its petition for review of this framework, citing statements from EPA indicating that the Agency was not following the provisions in the framework about which NRDC had expressed concern.²⁸ The motion to dismiss was granted by the Second Circuit on August 29, 2018.²⁹

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Federal Regulatory Actions

TSCA Regulatory Actions

EPA Releases Pre-Publication Version of the TSCA Fees Rule

On September 27, 2018, EPA released a pre-publication version of the final TSCA Fees Rule, outlining "user fees" that manufacturers and processors of chemical substances must submit to EPA in the context of various regulatory activities.³⁰ The rule took effect October 1, 2018. Although the fees outlined in this final rule began applying to covered submissions on October 1, 2018, EPA will not begin collecting fees until one day after the publication of the final rule in the Federal Register.³¹

EPA estimates that fees collected under the final rule will amount to about $20 million per year.³² Of this amount, about one percent will come from fees related to TSCA Section 4 activities (test rules and test orders), 43 percent will come from fees related to TSCA Section 5 activities (new chemical and new use notification), and 56 percent will come from fees related to TSCA Section 6 activities (risk evaluations, excluding fees collected for manufacturer-requested risk evaluations).³³ EPA estimates that it will collect an additional $5.2 million over three years for manufacturer-requested risk evaluations.³⁴ The final rule, similar to the proposed rule, focuses EPA's fee collection efforts on manufacturers of chemical substances.³⁵ Manufacturers of chemical substances will be subject to fees outlined in the final rule for the following activities: (1) TSCA Section 4 test orders, test rules, and enforceable consent decrees; (2) TSCA Section 5 notices (such as premanufacture notices and significant new use notices) and exemption applications (such as low volume exemptions); and (3) EPA-initiated risk evaluations, manufacturer-initiated risk evaluations of TSCA Work Plan chemicals, and manufacturer-initiated risk evaluations of non-TSCA Work Plan chemicals. Processors of chemical substances will be subject to fees only when they submit a significant new use notice or test-marketing exemption, when a TSCA Section 4 activity relates to a significant new use notice submitted by a processor, or when a processor voluntarily joins a consortium with manufacturers and therefore agrees to pay for TSCA Section 4 or 6 activities as part of its membership in the consortium. EPA clarified in the final rule that activities initiated prior to October 1, 2018, including those related to the first ten risk evaluations currently being conducted under the amended TSCA, are not subject to the fees outlined in the final rule.³⁶

The fee schedule outlined by EPA in the proposed TSCA Fees Rule generally remains the same in the final rule. EPA reported that it had received a number of comments requesting that the Agency better align the fees with costs incurred by EPA for each activity.³⁷ EPA stated in the preamble to the final rule that it currently does not have the capability to track fees associated with each specific activity, but that the Agency is working to develop this capability, and that the fee structure may be adjusted in the future if appropriate.³⁸ However, EPA did agree to implement a revised fee structure based on costs incurred for manufacturer-initiated risk evaluations only. Under the proposed rule, manufacturers would have been required to pay flat fees of $1.3 million and $2.6 million for manufacturer-initiated risk evaluations of TSCA Work Plan and non-TSCA Work Plan substances, respectively. Now, manufacturers will be required to provide upfront payments of $1.25 million and $2.5 million for TSCA Work Plan and non-TSCA Work Plan substances, respectively.³⁹ Following the completion of the risk evaluations, EPA will issue final invoices (and refunds if appropriate) to ensure that these payments cover 50 percent or 100 percent of EPA's costs in evaluating TSCA Work Plan and non-TSCA Work Plan substances, respectively.⁴⁰

EPA Announces Approach for "Pre-prioritization" of Chemicals for Review Under Amended TSCA

The 2016 amendments to TSCA require EPA to prioritize and evaluate the risks of a minimum number of chemical substances in accordance with specified deadlines. Substances that are designated as "high priority" must undergo a risk evaluation, which will inform EPA decisions about which substances will be regulated under Section 6 of the amended law to mitigate risks to human health and the environment. In 2017, EPA issued final regulations establishing the "framework" (process) under which the Agency will conduct its prioritization and risk evaluation processes. Because the law requires that, once commenced, the prioritization process for any given substance must be completed pursuant to a nine- to 12-month public process, EPA has considered establishing a "pre-prioritization" process for establishing a queue of chemicals to be designated as either "high" or "low" priority. In December 2017, EPA held a public meeting to solicit input regarding methods for identifying potential candidates for prioritization.

TSCA Section 6(b)(2)(B) requires that by December 22, 2019, the Agency must have at least 20 high priority chemical substances undergoing risk evaluation; and must have designated at least 20 chemical substances as low-priority substances. EPA must designate at least one new high-priority chemical substance whenever it completes a risk evaluation. At the close of September 2018, EPA released a whitepaper on pre-prioritization described as "A Working Approach for Identifying Potential Candidate Chemicals for Prioritization."⁴¹ EPA is accepting comments on this document until November 15, 2018. The Agency also is opening dockets to which information on 73 specific chemical substances may be submitted by the public—one docket for each of the substances that EPA has not yet prioritized but which remain on the 2014 list of TSCA Work Plan Chemicals. TSCA requires that at least 50% of the chemicals undergoing risk evaluation must come from the Agency's 2014 Update to the TSCA Work Plan (6(b)(2)(B)). The Agency will also open a "general" docket to which the public may submit suggestions for chemical substances not on the Work Plan that could be considered for Prioritization.⁴²

Deadline Passes for Processors to Submit Information Pursuant to TSCA Inventory Rule

The deadline for processors to voluntarily submit information pursuant to EPA's Inventory Notification (Active-Inactive) Rule was October 5, 2018. The TSCA Inventory Rule is intended to permit EPA to clarify which chemical substances currently listed on EPA's TSCA Inventory of chemical substances are actually "active" in US commerce. The reporting deadline for manufacturers and importers of chemical substances under the TSCA Inventory Rule was February 7, 2018. In April 2018, EPA issued an updated TSCA Inventory incorporating information received pursuant to the TSCA Inventory Rule, information submitted in 2012 and 2016 pursuant to the Chemical Data Reporting Rule, and notices of commencement received by the Agency since June 21, 2006.⁴³ The TSCA Inventory Rule does not require processors of chemical substances previously on the TSCA Inventory to submit notices to EPA. However, processors could voluntarily choose to notify EPA of their uses of these chemical substances. This was particularly important for processors who use chemical substances that do not appear on the version of the TSCA Inventory released in April 2018 ("inactive" substances). A processor of an inactive substance had to either submit a notice to activate the substance by the October 5, 2018 deadline, or must replace the inactive substance in its processes. Notably, litigation pending in the DC Circuit (discussed above) could still affect the obligations of manufacturers, importers, and processors of substances on the TSCA Inventory.⁴⁴

EPA Issues More Than 200 Significant New Use Rules During 2018

EPA has issued or proposed significant new use rules (SNURs) for over 200 chemical substances in 2018. Notable substances subject to these SNURs include asbestos⁴⁵ and chlorinated paraffins.⁴⁶ Most of the SNURs issued by EPA have been direct final rules issued for substances that were already the subject of TSCA Section 5(e) Consent Orders.⁴⁷ However, the SNUR for asbestos was issued only as a proposed rule.⁴⁸ EPA sought comment on the proposed SNUR for asbestos from June 11, 2018 through August 10, 2018.⁴⁹ The timeline for issuing the final asbestos SNUR is unknown (additional regulatory actions on asbestos under other TSCA authorities could be forthcoming). Although EPA issued the other SNURs as direct final rules, EPA nonetheless opened comment periods for these rules.⁵⁰ If, during these comment periods, EPA receives any "adverse comment," the Agency practice is to withdraw the direct final rule for the specific-substances SNUR about which it had received adverse comments, address the comments in a response to comments, and issue a final SNUR taking into account the public comments EPA received.⁵¹ Otherwise, a SNUR issued via direct final rule becomes effective two months following publication in the Federal Register.⁵² On September 26, 2018, EPA withdrew the final direct rules for 145 SNURs about which it had received adverse comments.⁵³ Given the pace at which EPA has been issuing SNURs, and EPA's approach to issuing SNURs as direct final rules that it will withdraw only if it receives adverse comments, manufacturers and processors of chemical substances will need to keep a close eye on the Federal Register and should be prepared to review and submit comments on any direct final SNURs that may affect them.

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PFCs

ATSDR Issues Draft Toxicological Profile

In June 2018, the Agency for Toxic Substances and Disease Registry (ATSDR) released its draft "Toxicological Profile for Perfluoroalkyls."⁵⁴ The Toxicological Profile covers 14 per- and polyfluoroalkyl substances (PFAS), including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).⁵⁵ The Toxicological Profile recommends standards of 11 ppt for PFOA and 7 ppt for PFOS—significantly lower than EPA's 70 ppt lifetime health advisory level for PFOA and PFOS.⁵⁶ ATSDR sought public comment on the draft Toxicological Profile until August 20, 2018.⁵⁷ Dr. Peter Grevatt, director of EPA's Office of Ground Water and Drinking Water, was asked about the differences between EPA's lifetime health advisory and the standards recommended by the ATSDR Toxicological Profile during a September 6, 2018 hearing in the House of Representatives Energy & Commerce Committee Subcommittee on Environment.⁵⁸ Dr. Grevatt explained that the purpose of the ATSDR Toxicological Profile is different from the lifetime health advisory, stating that ATSDR "viewed the science somewhat differently" than EPA. Dr. Grevatt, though, emphasized that EPA is working closely with ATSDR to ensure that both entities have the best information going forward.

EPA Sends PFAS Groundwater Cleanup Recommendations to EPA for Review

The Office of Management & Budget (OMB) is reviewing "draft interim recommendations" from EPA for the cleanup of PFAS in groundwater.⁵⁹ The publication of these recommendations is one of several actions that EPA has announced to address PFAS contamination.⁶⁰ The target date for publication of these recommendations was September 2018.⁶¹ EPA's goal in issuing these recommendations is to reduce human exposure to PFAS chemicals.⁶²

EPA Holds Community Engagement Sessions on PFAS

On July 25, 2018, EPA held a "PFAS Community Engagement" session in Horsham, Pennsylvania.⁶³ Representatives from EPA, the Department of Defense, ATSDR, and state environmental agencies all participated in the session.⁶⁴ At this session, EPA reiterated the steps that it intends to take to address PFAS contamination. These steps, originally announced by then-Administrator Scott Pruitt in May 2018, include evaluating the need for maximum contaminant levels (MCLs) for PFOA and PFOS and taking steps to propose designation of PFOA and PFOS as "hazardous substances" under various statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act.⁶⁵ EPA also explained that it had developed a testing method for 20 total PFAS in drinking water, and it is in the processing of developing a testing method for these PFAS in surface water, groundwater, and solids.⁶⁶

EPA has also held PFAS Community Engagement sessions in Exeter, New Hampshire; Colorado Springs, Colorado; Fayetteville, North Carolina; and Leavenworth, Kansas.⁶⁷ In addition to these in-person meetings, EPA sought public comment about "how EPA can best help states facing" PFAS contamination.⁶⁸ Interested parties could submit comments to EPA until September 28, 2018.⁶⁹ EPA will consider these comments when preparing its PFAS management plan, which the agency intends to release before the end of 2018.⁷⁰

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Federal Legislative Actions

House and Senate Subcommittees Hold Hearings on PFAS

The House Energy and Commerce Committee Subcommittee on Environment held a hearing on September 6, 2018 to examine "Perfluorinated Chemicals in the Environment."⁷¹ Representatives from EPA, the Department of Defense, and state environmental agencies discussed their efforts to detect and remediate PFAS contamination.⁷² EPA representative Dr. Peter Grevatt explained that the Agency is considering the development of an MCL for PFOA and PFOS, and is considering listing PFOA and PFOS as hazardous substances under CERCLA and/or other environmental statutes.⁷³ EPA plans to discuss its views on both of these issues in the PFAS Management Plan that the Agency intends to release later this year.⁷⁴ Notably, in a September speech to the Environmental Council of the States, Dr. Grevatt expressed skepticism about the necessity of an MCL for PFOA and PFOS, noting that an EPA study conducted from 2013-2015 revealed PFAS contamination in less than 2% of drinking water systems across the country.⁷⁵ Finally, Dr. Grevatt told the Subcommittee that EPA has no plans to lower the lifetime health advisory for PFOA and PFOS in drinking water.⁷⁶ This lifetime health advisory is currently set at 70 parts per trillion (ppt).⁷⁷

Dr. Grevatt also testified at a September 26, 2018 hearing in the Senate Homeland Security and Governmental Affairs Committee Subcommittee on Federal Spending Oversight and Emergency Management.⁷⁸ At this hearing, Dr. Grevatt again expressed skepticism about the need for an MCL for PFOA and PFOS, citing the aforementioned study. Dr. Grevatt also set expectations for a timeline for the implementation of an MCL for PFOA and PFOS, if EPA determines it is an appropriate regulatory measure, and the designation of PFOA and PFOS as hazardous substances under CERCLA and/or other appropriate statutes. Dr. Grevatt emphasized that, even if EPA announces in its PFAS national management plan later this year that the Agency intends to pursue these measures, EPA would still have to develop proposed rules, seek public comment on these rules, and develop final rules based on public comments. He indicated that this process would take at least one year. Dr. Grevatt also explained at the hearing that EPA was developing a SNUR for PFAS to supplement the initial SNUR proposed by EPA in January 2015.⁷⁹ He did not provide a timeline for releasing the supplemental SNUR.

US House of Representatives Approves America's Drinking Water Infrastructure Act

The US House of Representatives unanimously approved the America's Water Infrastructure Act on September 13, 2018.⁸⁰ The legislation now goes to the US Senate, which is expected to approve the legislation.⁸¹ The legislation, if approved, would increase funding allocated for EPA's Drinking Water State Revolving Fund, which provides financial support to state drinking water systems.⁸² The legislation would also require drinking water systems serving more than 3,300 people to test for unregulated contaminants pursuant to EPA's Unregulated Contaminants Monitoring Rule.⁸³ Currently, only drinking water systems serving more than 10,000 people are required to monitor for unregulated contaminants.⁸⁴ Past chemical substances covered by the Unregulated Contaminants Monitoring Rule include PFOA, PFOS, 1,2,3-TCP, hexavalent chromium, and 1,4 dioxane.⁸⁵ EPA has been asked to include PFAS chemicals again in the next iteration of the unregulated chemicals list.⁸⁶ Monitoring requirements for chemicals on the next iteration of the unregulated chemicals list would likely take effect in 2022.⁸⁷

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State Regulatory & Legislative Action

California

California's Water Resources Control Board established drinking water notification levels for PFOA and PFOS that took effect on July 13, 2018.⁸⁸ The new notification level for PFOA is 14 ppt,⁸⁹ and the new notification level for PFOS is 13 ppt.⁹⁰ The State Water Board also established a combined response level for PFOA and PFOS of 70 ppt.⁹¹ Although public drinking water systems generally are not mandated to test for PFOA and PFOS, those that do test are now required to report exceedances to their governing boards and the State Water Board, and are urged to report exceedances to their customers.⁹² These notification levels were issued after the California Office of Environmental Health Hazard Assessment sent a recommendation to the California Water Boards in June 2018.⁹³ The establishment of a notification level is often an initial step in the process of adopting a maximum contaminant level.⁹⁴ Data collected as a result of the new guidelines, reflecting the extent and levels of contamination, will be used by the State Water Board to determine whether or not to adopt a maximum contaminant level for PFOA and PFOS.

Additionally, California has launched a biomonitoring program to measure the levels of perfluorinated chemicals in the blood of California residents.⁹⁵ The program will kick off with testing of a diverse group of 300 to 500 adults in the Los Angeles area. It is expected to expand in seven other regions in California over the next few years. In addition to blood samples, California is collecting information from participants in an effort to identify sources of PFAS chemicals. After the study, California will hold community meetings to discuss the results.

Finally, the City of San Francisco has banned the use of single-use food service ware (such as bowels, plates, and cups) containing PFAS.⁹⁶ Beginning January 1, 2020, food vendors may not offer for sale or distribute food in containers made with PFAS.⁹⁷ San Francisco is the first city in the United States to implement such a ban.⁹⁸

Minnesota

The Minnesota Pollution Control Agency has formed a "stakeholder advisory group" to develop best practices for managing vapor intrusion risks, specifically in commercial and industrial buildings.⁹⁹ Members of the stakeholder advisory group include environmental consulting groups, banks, property developers, and other state governmental entities. Interested parties who are not members of the stakeholder advisory group are encouraged to connect with members of the group if they wish to engage in the development of these best practices. The Agency hopes to publish its best practices by January 2019. Issues expected to be covered by the best practices released next year include the sufficiency of passive mitigation systems (such as sealing cracks in floor slabs), whether an underground parking garage may be considered a mitigation system, and the required verification testing requirements for each type of mitigation.

New Jersey

New Jersey has finalized maximum contaminant levels (MCLs) for 1,2,3,-TCP and perfluorononanoic acid (PFNA) in New Jersey drinking water.¹⁰⁰ These MCLs were initially proposed in August 2017.¹⁰¹ Under New Jersey's revised Safe Drinking Water Act regulations, the MCL for PFNA is 13 ppt, and the MCL for 1,2,3,-TCP is 30 ppt.¹⁰² New Jersey is currently the only state in the country with a drinking water MCL for PFNA,¹⁰³ and only the third state in the country to adopt an MCL for 1,2,3-TCP.¹⁰⁴ Public water systems serving fewer than 10,000 people are required to begin monitoring for PFNA and 1,2,3,-TCP within the first quarter of 2019. Public water systems serving more than 10,000 people have until the first quarter of 2020 to begin monitoring for these chemical substances.

Additionally, New Jersey has issued the first consumption advisory for fish containing PFAS chemicals.¹⁰⁵ In July 2018, New Jersey issued a consumption advisory for 12 species of fish found to contain PFAS chemicals. Some fish contained PFOS levels of up to 73 ppb. The New Jersey Department of Environmental Protection recommended that these fish be eaten only once per year. Recommended consumption of other fish species with lower levels of detected PFAS was lowered from once per week to once every three months.¹⁰⁶

Vermont

Vermont has expanded its 20 ppt health advisory for PFOA and PFOS to include three other PFAS chemicals.¹⁰⁷ Under the health advisory, as updated by the state in July 2018, the cumulative level of the following PFAS chemicals may not exceed 20 ppt: PFOA, PFOS, perfluorohexane sulfonic acid (PFHxS), perfluoroheptanoic acid (PFHpA), and PFNA. Tests of drinking water in Vermont have primarily detected PFOA. However, some recent tests have also detected PFHxS and PFHpA, thus spurring the state to expand its health advisory.

New Hampshire

Pursuant to legislation signed in July 2018, the New Hampshire Department of Environmental Services is now required to set maximum contaminant levels for PFOA, PFOS, PFNA, and PFHxS.¹⁰⁸The New Hampshire Department of Environmental Services is required to initiate rulemaking to establish the maximum contaminant level by January 1, 2019.¹⁰⁹ The legislation also directs the Department of Environmental Services to develop a plan to establish surface water quality standards for PFOS, PFOA, PFNA, and PFHxS. The Department of Environmental Services is required to submit this plan to the New Hampshire legislature by January 1, 2020.

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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.