EPA Advances Rule to Designate PFOA, PFOS as CERCLA “Hazardous Substances”

Michael Best & Friedrich: After months of speculation as to timing, last week the U.S. Environmental Protection Agency (EPA) Administrator Regan advanced the Agency's proposed rule for the "Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances." The official version of the proposed rule has not yet been published in the Federal Register. When that occurs (expected within a few days), the 60-day public comment period will be triggered.  The proposed rule's release is on the heels of the Office of Management & Budget's (OMB) announcement that it designated the rulemaking as an economically significant action – a designation for measures expected to cost more than $100 million. The proposed rule attempts to address OMB's announcement by releasing its economic analysis (EA) of the potential costs, benefits and impacts associated with this action. When the proposed rulemaking is officially published, EPA's Economic Assessment of the Potential Costs and Other Impacts of the Proposed Rulemaking to Designated Perfluorooctanoic Acid and Perfluorooctanesulfonic Acid as Hazardous Substances will be available for review and comment in EPA's docket.

EPA designates five economy-wide categories of entities potentially affected by the proposed rule:

• PFOA and/or PFOS manufacturers (including importers and importers of articles)
• PFOA and/or PFOS processors
• Manufacturers of products containing PFOA and/or PFOS;
• Downstream product manufacturers and users of PFOA and/or PFOS products; and
• Waste management and wastewater treatment facilities.

Given the widespread historic use of PFOA and PFOS for fire suppression and in the manufacture of consumer products and packaging, the proposed rule has wide-reaching impact and EPA's "categories" confirms the same.

Designation as Hazardous Substances
There are two ways that a substance may defined as a "hazardous" substance under CERCLA. The first is automatic when the substance is identified as hazardous or toxic pursuant to other specified federal environmental statutes (such as the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, etc.). The second is where the substance is designated as hazardous pursuant to CERLCA Section 102.  EPA's rulemaking is pursuant to CERCLA Section 102(a) which allows EPA to promulgate regulations designating as hazardous a substance "which, when released into the environment may present substantial danger to the public health or welfare or the environment." 42 U.S.C. § 9602(a).

Notably, EPA has never exercised its authority pursuant to Section 102(a) before so it has not previously issued an interpretation of the standard for designating a hazardous substance under CERCLA. The proposed rule conducts such an analysis to defend its rulemaking. Given that EPA has not used its authority in this manner before, expect this to be an area of focus for future legal challenges.

"Direct Impact" of the Proposed Rulemaking
EPA identifies three direct effects of the proposed rule. First, any person in charge of a vessel or facility must report releases of PFOA and PFOS of one (1) pound or more within a 24-hour period. EPA acknowledges this will apply to very few facilities/vessels because the Agency's estimate is that this will cause an increased cost of $561/release and an estimated annual cost of $370,000.  The second direct effect is that Federal agencies would be required to meet all of the property transfer requirements of CERCLA 120(h) when selling or transferring Federally-owned real property. This would require providing notice when any hazardous substance was stored for one year or more, known to have been released or disposed of, and providing a covenant warranting that all remedial action necessary to protection human health and the environment with respect to hazardous substances has occurred before the transfer (or will be conducted by the Federal government after the transfer).  With PFOA and PFOS included as hazardous substances, Federal agencies would need to consider those compounds in any property transfer notice.  The third direct effect is that upon designation as a hazardous substance, the Department of Transportation (DOT) would be required to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act (HMTA).

"Indirect Impacts" of the Proposed Rulemaking
EPA seemingly acknowledges that the real "action" of this proposed rulemaking is what the agency considers "indirect, downstream effects" of the designation.  These "indirect effects" include:

• EPA and other agencies exercising delegated CERLCA authority to respond to PFOA and PFOS releases and threatened releases without making the imminent and substantial endangerment finding that is required for responses now.
• EPA and delegated agencies could require potentially responsible parties ("PRPs") to address PFOA and PFOS releases that pose an imminent and substantial danger to public health or welfare or the environment.
• EPA and delegated agencies could recover PFOA and PFOS cleanup costs from PRPs, "to facilitate having polluters and other PRPs, rather than taxpayers, pay for these cleanups."
• Private parties that conduct cleanups that are consistent with the National Oil and Hazardous Substances Contingency Plan (NCP) could also recover PFOA and PFOS cleanup costs from PRPs.

EPA asserts that the CERCLA designation would "likely increase the pace at which cleanups occur because it will allow the Federal government to require responsible private parties to address releases of PFOS and PFOA at sites without other ongoing cleanup activities, and allow the government and private parties to seek to recover cleanup costs from PRPs assuming relevant statutory criteria are met."

EPA considers CERCLA response actions, including the investigation of hazardous substance releases and determining if removal or remedial action is necessary, to be "contingent, discretionary, and site-specific actions" as compared to the "only automatic, private party obligation that flows from designation as a CERCLA hazardous substance" which is the obligation to report releases of PFOA and PFOS.  EPA uses this apparent distinction to assert that this designation "does not create new costs, but rather allows costs to be shifted from the taxpayer to parties responsible for pollution under CERCLA" and that "[e]ven in those circumstances, where the government is able to transfer costs, a private party's ability to pay response costs is taken into account under the statute and in EPA's implementation" of CERCLA.

Read full from Michael Best & Friedrich:
https://www.michaelbest.com/Newsroom/296003/EPA-Advances-Rule-to-Designate-PFOA-PFOS-as-CERCLA-Hazardous-Substances

Forever Chemicals No More? PFAS Are Destroyed With New Technique

The harmful molecules are everywhere, but chemists have made progress in developing a method to break them down.

Dr. Trang and Dr. Dichtel teamed up with other chemists at U.C.L.A. and in China to figure out what was happening. The sodium hydroxide hastens the destruction of the PFAS molecules by eagerly bonding with the fragments as they fall apart. The fluorine atoms lose their link to the carbon atoms, becoming harmless.

"Once you give it a chance, this thing will unzip," Dr. Dichtel said.

Dr. Strathmann, who was not involved in the research, said that the new study was important because it was based on chemistry profoundly different from other methods that were being studied. "We're going to need some creative solutions," he said.

Read full at NY Times;

https://www.nytimes.com/2022/08/18/science/pfas-forever-chemicals.html

Wisconsin PFAS Action Council Releases PFAS Action Plan Progress Report

The Wisconsin Department of Natural Resources (DNR) today announced the Wisconsin PFAS Action Council (WisPAC) released its PFAS Action Plan Progress Report. The Progress Report outlines steps taken by state agencies to address PFAS contamination since December 2020, when the Wisconsin PFAS Action Plan was released.

The Wisconsin PFAS Action Plan includes 25 recommended action items categorized into eight themes: standard setting, sampling, pollution prevention, education and communication, research and knowledge, phase-out, future investments and historic discharges.

"The progress we've seen with addressing PFAS as a state is a reflection of the coordination and collaboration that grew out of WisPAC and the PFAS Action Plan," said DNR Secretary Preston D. Cole. "I am proud of the continued work by WisPAC, with DNR at the helm, in partnership with communities and stakeholders working together toward solutions that will protect the public and support our businesses."

Progress report highlights include:

• Investing $1 million to collect more than 25,000 gallons of PFAS-containing firefighting foam waste from across more than 60 counties in Wisconsin.
• Sampling more than 125 municipal drinking water systems, 100 waste water treatment plants and hundreds of private drinking water wells.
• Establishing the Office of Environmental Justice.
• Initiating legal action against 18 major chemical companies.

WisPAC member agencies will continue working on the Action Plan and expect additional community resources to be deployed this year. In addition to launching an interactive PFAS mapping tool, work continues with stakeholders to implement standards for certain PFAS in drinking water and surface water.

The PFAS Action Plan was developed by WisPAC, a group of nearly 20 state agencies and the University of Wisconsin, to address environmental and public health concerns that are or may be posed by per- and polyfluoroalkyl substances (PFAS) in Wisconsin. The plan was created in response to Governor Evers' Executive Order #40, directing Dept. of Natural Resources to lead a group of state agencies in building a blueprint for how Wisconsin can address the use of and contamination from these "forever chemicals."

With DNR leading the way, WisPAC has partnered with Wisconsin's local governments, businesses and communities in developing and implementing the PFAS Action Plan. Recommended actions in the plan include items identified through input from the public, state agencies and a citizen and local government advisory group. Each recommendation contains an overview of what would be required to bring it to fruition, including budgetary, legislative and staffing needs.


To read the PFAS Action Plan, the Progress Report or learn more about WisPAC, please visit the DNR's Wisconsin PFAS Action Council (WisPAC) webpage. 

https://dnr.wisconsin.gov/topic/PFAS/WisPAC.html

Dangerous Cleaning Products Prompt FDA Warning

This summer, the FDA issued a warning to consumers outlining the risk of using certain UV disinfecting light wands. Recent testing found some of the lights produce dangerous levels of UV-C radiation and pose the risk of eye and skin damage to people in the vicinity of the light.

The damage can occur with just a few seconds of exposure, officials say. Symptoms include a burn-like skin reaction and photokeratitis, a painful eye condition that can lead to a feeling of sand in the eyes.

Safety investigators on the case said the following list includes products not properly equipped to protect people from the radiation (but noted that the list is not exhaustive, and other products on the market may be unsafe, as well). In some cases, UV-C radiation levels were 3,000 times more than the exposure limit recommended by the International Commission on Non-Ionizing Radiation Protection.

Image Source: FDA (Content draxe.com)

Cleaning Alternatives

Home cleaning products are generally not tested for long-term impact on public health. In fact, it's difficult to even know all of the ingredients in cleaners, since they only have to account for active ingredients.

It may come as no surprise, then, that people who clean for a profession can experience lung damage equivalent to smoking 20 cigarettes a day for 10 to 20 years.

Knowing the chemical damage that can occur from chemical cleaning products, it's no wonder people are looking for alternatives like UV disinfectants. The problem is we don't have strong laws to make sure they are safe before going on sale to the general public.

You can even take a look at its database, focusing in on how products rank in its disinfectant category.

Here are a few cleaning tips to remember:

• While vinegar is a group cleaning product, it is generally not the greatest disinfectant.
• A 2014 study found that it can kill bacteria that causes tuberculosis, however, it took 30 minutes of contact time, which isn't always practical.
• When you do clean with vinegar, use a 1:1 ratio of what vinegar to water for cleaning stovetops, floors and other surfaces. (Always test an inconspicuous spot. Vinegar doesn't play well with certain surfaces, like stone, waxed wood, aluminum and cast iron, according to NSF.)

Conclusion

• UV light disinfection wands are gaining popularity, although the FDA found many to be unsafe.
• FDA testing found certain UV wands emitted UV-C radiation at levels 3,000 times above the recommended safe level.
• Even just a few seconds of exposure at these levels can cause skin and eye damage, the FDA noted.
• Choose safer cleaning and disinfection methods, like scrubbing with soap and water and using unscented rubbing alcohol (minimum 60% alcohol) to kill germs.

Regulatory actions for Cycle 1 of "Safer Products for Washington"

Regulatory actions for Cycle 1 of o"Safer Products for Washington"

We determined restrictions are needed for the following chemical-product combinations:

• Organohalogen flame retardants in external plastic device casings for electric and electronic products intended for indoor use
• Organohalogen and organophosphate flame retardants in RCW 70A.430 in recreational polyurethane:
  • Uncovered foam pits
  • Covered floor mats
  • Covered flooring
  • Outdoor recreational products
• Per- and polyfluoroalkyl substances (PFAS) in:
  • Carpets and rugs
  • Indoor leather and textile furniture and furnishings
  • Aftermarket stain- and water-resistance treatments for leather and textile products
• Bisphenols in:
  • Thermal paper
  • Drink can linings
• Alkylphenol ethoxylates (APEs) in laundry detergent
• Ortho-phthalates in:
  • Vinyl flooring
  • Fragrances used in personal care and beauty products

We determined reporting requirements are needed for the following chemical-product combinations:

• Organohalogen flame retardants in external plastic device casings for electric and electronic products intended for outdoor use
• Organohalogen and organophosphate flame retardants listed in RCW 70A.430 in recreational polyurethane covered wall padding
• PFAS in outdoor leather and textile furniture and furnishings
• Bisphenols in food can linings

What changed between the draft and final report

We made a number of changes to integrate feedback from our stakeholders and communities. Read how we incorporated feedback in our comment overview. Three regulatory determinations changed between draft and final:

• We changed our determination to no action on polychlorinated biphenyls (PCBs) in paints or printing inks. We believe federal Toxic Substances Control Act (TSCA) regulations preempt us.
• We changed our determination from a restriction on PFAS in leather and textile furniture and furnishings intended for outdoor use to a reporting requirement.
• We changed our determination from a restriction on flame retardants in electric and electronic enclosures intended for outdoor use to a reporting requirement. We also further clarified which electric and electronic products are in scope.

If interested, you can view comments from other stakeholders on the draft report. To hear a summary of the results from our public comment survey, watch our video covering the highlights (also available in Spanish). For more details, check out our infographic (also available in Spanish) and blog post covering the results. You can also review the complete, unedited responses to the survey.

Find out more at:

https://www.ezview.wa.gov/site/alias__1962/37555/safer_products_for_washington.aspx

Free Virtual Workshop Indoor Air Management of Airborne Pathogens Lessons, Practices,

About this workshop

The Environmental Health Matters Initiative (EHMI) of the National Academies invites you to register for the first workshop in our three-part series on Indoor Air Management of Airborne Pathogens building upon the 2020 workshop on the airborne transmission of SARS-CoV-2. These workshops will explore strategies needed for airborne disease control and risk reduction in enclosed places by drawing on accumulated community and institutional knowledge, on-the-ground observations of indoor environments management during the pandemic, and novel and promising scientific discoveries.

The first workshop in the series will engage multidisciplinary speakers and active participants to investigate the state of knowledge concerning building management to reduce the transmission of airborne pathogens. Speakers will highlight progress made since 2020, identify critical research gaps, and explore technical and social barriers to implementation. Participants will share their experiences with the management of enclosed spaces during the pandemic and identify promising practices to be adopted to make these places safer.

Learn more about the structure of the workshop and the speakers by visiting our webpage, where you will soon be able to download the meeting agenda.

Your Voice Matters!

We want to hear a broad range of perspectives before the workshop to inform the conversation during the event. Please fill out any or all questions included in this anonymous questionnaire if you are or aren't able to attend the event.

Date and time

Thu, August 18, 2022

11:30 AM – 3:30 PM EDT

Register here:

https://www.eventbrite.com/e/indoor-air-management-of-airborne-pathogens-lessons-practices-innovations-tickets-379941755017

Help counseling patients on PFAS

Healthcare providers need to know how to counsel patients about PFAS, known as "forever chemicals." Perfluoro alkyl substances (PFAS) have been found contaminating over 2,500 communities in the US, and 97% of Americans have PFAS in their blood. On July 28, the National Academies of Science, Engineering, and Medicine released a report recommending that healthcare providers order PFAS blood levels on their exposed patients.

Doctors, nurses and other health professionals need to know who is exposed, how to interpret blood PFAS results, and what to tell their patients. We have developed two short videos (2 minutes each) for healthcare providers that introduces them to PFAS and directs them to a CME webinar on PFAS hosted at the University of Cincinnati. We are asking you to help us disseminate these videos to your providers and other stakeholders, on your social media, or in your newsletter.

Here are the links to the videos:

PFAS Doctor's Perspective - YouTube

PFAS Questions with Dr. Nicholas Newman - YouTube

 

Via Susan Buchanan, MD, MPH
Director, Great Lakes Center for Reproductive and Children's Environmental Health at the University of Illinois at Chicago/ Region 5 Pediatric Environmental Health Specialty Unit https://childrensenviro.uic.edu/