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October 16, 2023

Monthly Update for October 2023

Bergeson & Campbell, P.C.


EPA Releases Final Guidance For New Pesticide Applications And Registration Review Activities That Require Endangered Species Act Reviews: On September 14, 2023, the U.S. Environmental Protection Agency (EPA) announced the release of final guidance to improve the efficiency of EPA’s Endangered Species Act (ESA) analyses for new pesticide active ingredient applications and active ingredients undergoing registration review. EPA states this guidance fulfills requirements outlined in the Pesticide Registration Improvement Act of 2022 (PRIA 5) and furthers goals outlined in EPA’s 2022 ESA Workplan to protect listed species from exposure to pesticides. More information is available in our October 10, 2023, blog.

Earthjustice Files Lawsuit Seeking A Binding Timeline For EPA To Comply With TSCA Risk Evaluation Deadlines: Earthjustice announced on September 18, 2023, that environmental justice and health advocates have filed suit in the U.S. District Court for the District of Columbia against EPA “for missing statutory deadlines to complete risk evaluations for 22 toxic chemicals released in high volumes in fenceline communities and found in many everyday consumer products.” Earthjustice asks the court to establish a binding timeline for EPA to comply with its chemical risk evaluation obligations under the Toxic Substances Control Act (TSCA). Earthjustice filed the lawsuit on behalf of the Community In-Power and Development Association, Learning Disabilities Association of America, Louisiana Environmental Action Network, Sierra Club, and Texas Environmental Justice Advocacy Services. More information is available in our September 19, 2023, blog item.

EDF Urges EPA To “Use TSCA To Turn Off The PFAS Tap”: The Environmental Defense Fund (EDF) published a blog item on September 18, 2023, entitled “Now’s the Time — How EPA Can Use TSCA to Turn Off the PFAS Tap.” According to EDF, for both previously approved per- and polyfluoroalkyl substances (PFAS) and for new PFAS, EPA should:

  • Use the best available science;
  • Assess cumulative risks;
  • No release is negligible; and
  • Facilitate safer alternatives.

EDF concludes that by using its full authority under TSCA, “EPA can ensure a future where chemicals do not compromise our health and safety.” More information is available in our September 21, 2023, blog item.

ACC Submits Notice Of Intent To File Suit For EPA To Complete Manufacturer-Requested Risk Evaluations For DINP And DIDP: The American Chemistry Council (ACC) announced on September 20, 2023, that together with the Texas Chemical Council, it submitted a 60-day notice of intent to file suit for EPA’s failure to complete manufacturer-requested risk evaluations (MRRE) for diisononyl phthalate (DINP) and diisodecyl phthalate (DIDP) under TSCA. ACC states that EPA failed to complete the MRREs by TSCA’s mandatory deadline of three years and six months from the date EPA initiated these risk evaluations and that EPA should have completed the MRREs by July 2, 2023. More information on the final scope documents for DINP and DIDP is available in our September 3, 2021, memorandum.

EPA And DOJ Claim eBay Unlawfully Sold Pesticides, Banned Chemical Products, And Devices That Defeat Pollution Controls On Motor Vehicles: EPA announced on September 27, 2023, that the U.S. Department of Justice (DOJ), on behalf of EPA, filed a complaint against eBay Inc. (eBay) “for unlawfully selling, offering for sale, causing the sale of, and distributing hundreds of thousands of products” in violation of the Clean Air Act (CAA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and TSCA. According to EPA, the complaint seeks a ruling that eBay’s business practices as an e-commerce retailer violated the CAA, FIFRA, and TSCA and injunctive relief to enjoin eBay from further violations of these laws, as well as civil penalties for violations of the CAA. More information is available in our September 28, 2023, memorandum.

EPA Adds Ten Chemicals To SCIL: EPA announced on September 29, 2023, that it is adding ten chemicals to the Safer Chemical Ingredients List (SCIL). With this update, the SCIL includes a total of 1,071 chemicals that are “among the safest for their functional use.” According to EPA, the SCIL provides increased transparency in safer chemistry, helps companies find safer chemical alternatives, and increases innovation and growth of safer products. EPA states that in support of the Biden Administration’s goals, “the addition of chemicals to the SCIL incentivizes further innovation in safer chemistry, which can promote environmental justice, bolster resilience to the impacts of climate change, and improve water quality.”

EPA Seeks Nominations For Peer Review Of The 2023 Draft Risk Evaluation For TCEP: EPA announced on September 29, 2023, that it is seeking public nominations of scientific and technical experts to review the 2023 Draft Risk Evaluation for Tris(2-chloroethyl) Phosphate (TCEP). 88 Fed. Reg. 67278. EPA states that it will release the draft risk evaluation documents for public review and comment in December 2023 and subsequently submit them for review by the expert reviewers. Nominations are due October 30, 2023. EPA will use feedback received from the letter peer review and public comments to inform the final risk evaluation.

Comments Due October 13, 2023, On EPA’s Proposal To Register Novel Pesticide Technology For Potato Crops: EPA announced on September 29, 2023, that it is proposing to register pesticide products containing the new active ingredient ledprona for three years, a timeframe consistent with EPA’s approach to other novel pesticide products. EPA states that ledprona “is a new type of pesticide that relies on a natural mechanism — called RNA interference (RNAi) — used by plants and insects to protect against disease.” The proposed biopesticide involves a sprayable double-stranded ribonucleic acid (dsRNA) product targeting the Colorado potato beetle (CPB), a major pest of potato crops grown in the United States, including in the potato-growing states of Colorado, Idaho, Maine, Michigan, Minnesota, North Dakota, Oregon, Washington, and Wisconsin. According to EPA, the sprayable dsRNA product “kills the pest by ‘silencing’ the CPB gene needed to produce the PSMB5 protein, whose role is essential to keeping the CPB alive, without resulting in a genetically modified organism.” If EPA approves the registration, it “would be the first sprayable dsRNA pesticide in the world allowed to be used commercially and sprayed on plants.” More information is available in docket EPA-HQ-OPP-2021-0271 and in our October 12, 2023, blog item. Comments were due October 13, 2023.

EPA Announces 2023 Safer Choice Partner Of The Year Award Winners: On October 2, 2023, EPA announced 30 Safer Choice Partner of the Year award winners, recognizing their achievements in the design, manufacture, and the selection and use of cleaners, detergents, and other products with safer chemicals. According to EPA, many Safer Choice partners recognized have shown leadership and innovation in safer chemistry and sustainable packaging. For example, one winner reformulated a floor finishing product to replace PFAS with a safer chemical alternative. EPA states that the reformulated product “carries the Safer Choice label and demonstrates that water-based floor finishes can work well without PFAS, an important innovation for the sector.” More information is available in our October 6, 2023, blog item.

EPA Launches New Substantiation Functionality In TSCA Applications In CDX: EPA announced on October 6, 2023, that it is deploying application updates, supporting new requirements under the TSCA Confidential Business Information (CBI) Procedural Rule, within its electronic reporting site, Central Data Exchange (CDX). EPA states that the deployments will update the applications requiring CBI substantiations to be provided within the application instead of requiring substantiation documents/templates to be attached. The deployments will also require new communications for reporting TSCA Sections 12, 13, and 8(c) submissions. The deployments began at 5:00 p.m. (EDT) Friday, October 13, 2023. Access to the applications and submissions resumed at 12:00 a.m. (EDT) Monday, October 16, 2023.

EPA Issues Final TSCA Section 8(a)(7) Reporting Rule For PFAS: On October 11, 2023, EPA issued a long-overdue final rule under TSCA Section 8(a)(7) regarding reporting and recordkeeping requirements for PFAS. 88 Fed. Reg. 70516. Data are due to EPA within 18 months of the effective date of the final rule, with an additional six months for reports from small businesses that are solely reporting data on importing PFAS contained in articles. The final rule will be effective November 13, 2023. The final rule is not what many of us expected, nor wanted. EPA appears to be indifferent to the due diligence burden, focusing almost entirely on the reporting burden. It remains to be seen if any regulated entities will challenge this final rule. For more information on the final rule, please read the full memorandum.


EPA Publishes CWA Section 401 Water Quality Certification Improvement Rule: On September 27, 2023, EPA published a final rule revising and replacing the 2020 regulatory requirements for water quality certification under Clean Water Act (CWA) Section 401. 88 Fed. Reg. 66558. EPA states that the final rule updates the existing regulations to align better with the statutory text and purpose of the CWA; to clarify, reinforce, and provide a measure of consistency with elements of Section 401 certification practice that have evolved over the more than 50 years since EPA first promulgated water quality certification regulations; and to support an efficient and predictable certification process that is consistent with the water quality protection and cooperative federalism principles central to CWA Section 401. The final rule also makes conforming amendments to the water quality certification regulations for EPA-issued National Pollutant Discharge Elimination System (NPDES) permits. The rule will be effective November 27, 2023.

EPA Proposes To Amend Rule On Reclassification Of Major Sources As Area Sources Under CAA Section 112: EPA proposed on September 27, 2023, to add requirements for sources to reclassify from major source status to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. 88 Fed. Reg. 66336. EPA notes that the requirements of this proposal would apply to all sources that choose to reclassify, including any sources that have reclassified since January 25, 2018. EPA proposes that sources reclassifying from major source status to area source status under the NESHAP program must satisfy the following criteria: any permit limitations taken to reclassify from a major source of hazardous air pollutants (HAP) under the CAA to an area source of HAP must be federally enforceable, any such permit limitations must contain safeguards to prevent emission increases after reclassification beyond the applicable major source NESHAP requirements at time of reclassification, and reclassification will only become effective once a permit has been issued containing enforceable conditions reflecting the requirements proposed in this action and electronic notification has been submitted to EPA. Additionally, EPA proposes clarifications to reporting requirements and updating language regarding submittal of CBI. Comments are due November 13, 2023. EPA states that under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of the comments on or before October 27, 2023.

EPA Publishes 2022 GHG Reporting Program Data: On October 5, 2023, EPA released 2022 greenhouse gas (GHG) data collected under the GHG Reporting Program. According to EPA, in 2022, reported emissions from large industrial sources were approximately one percent lower than in 2021. EPA states that “[t]here has been an overall long-term decreasing trend in industry GHG emissions since 2011, primarily driven by a decrease in emissions from power plants to lower emissions inputs such as natural gas and renewables.” EPA will hold an informational webinar to demonstrate its Internet-based GHG data publication tools, including new features and a tutorial on common searches, on October 18, 2023.

EPA Will Issue Final Technology Transitions Rule On The Use Of Certain HFCs: EPA announced on October 6, 2023, that it will issue a final rule restricting the use of hydrofluorocarbons (HFC) in specific sectors or subsectors, establishing a process for submitting technology transitions petitions, establishing recordkeeping and reporting requirements, and addressing certain other elements related to the effective implementation of the American Innovation and Manufacturing (AIM) Act. EPA notes that these restrictions will address petitions granted on October 7, 2021, and September 19, 2022. EPA states that the restrictions will apply to the use of certain high global warming potential (GWP) HFCs in aerosols, foams, and refrigeration, air conditioning, and heat pump products and equipment. Beginning January 1, 2025, certain technologies will need to restrict use of higher-GWP HFCs or HFC blends. Prohibitions will apply to the manufacture, distribution, sale, installation, import, and export of products containing restricted HFCs. Compliance deadlines and GWP limits will vary based on sector and subsector.

EPA Will Propose Rule To Establish An Emissions Reduction And Reclamation Program For The Management Of Certain HFCs And Substitutes: EPA announced on October 6, 2023, that it will issue a proposed rule to establish an Emissions Reduction and Reclamation Program for the management of certain HFCs and substitutes. EPA states that the proposed requirements will include:

  • Leak repair provisions for certain appliances;
  • Use of automatic leak detection for certain new and existing equipment;
  • A proposed reclamation standard;
  • Use of reclaimed HFCs for certain types of equipment in certain refrigeration, air conditioning, and heat pump subsectors and use of recycled HFCs in fire suppression equipment;
  • Certain provisions for equipment in the fire suppression sector, including technician training;
  • Recovery of HFCs from disposable containers prior to disposal;
  • Container tracking for HFCs that could be used in the servicing, repair, and/or installation of refrigerant-containing equipment or fire suppression equipment; and
  • Recordkeeping, reporting, and labeling requirements.

EPA will also propose alternative recycling criteria for ignitable used refrigerants, including some HFCs and their equivalents, under the authority of the Resource Conservation and Recovery Act (RCRA).


FDA Collaborating On Culture In The New Era Of Smarter Food Safety: The U.S. Food and Drug Administration (FDA), along with Stop Foodborne Illness, a non-profit public health organization, continues to offer webinars that address its ongoing efforts with the implementation of the New Era of Smarter Food Safety’s four core elements. FDA posted, on September 13, 2023, the recording from “Session 8: Facing Food Safety Challenges through Culture and Persistence.” FDA intends to hold “Session 9: Storytelling to Shape, Reinforce, and Inspire” on December 6, 2023. FDA indicates the webinar series is meant to “engage[] experts from the public and private sectors in a collaborative exchange of ideas and experiences related to the importance of a robust food safety culture in helping to ensure safe food production.” Additional resources, including podcasts and educational videos, are available here.  

FDA Seeks Comment On Cosmetics Direct And Forms Regarding Registration Of Cosmetic Product Facility And Cosmetic Product Listing: On September 15, 2023, FDA announced that it is seeking comment on its newly developed draft electronic submission portal (Cosmetics Direct) and paper forms (Forms FDA 5066 and 5067). The submission portal and paper forms are part of FDA’s implementation of the new registration and listing requirements mandated by the Modernization of Cosmetics Registration Act of 2022 (MoCRA). FDA has provided screenshots of the draft electronic system, draft Form FDA 5066 — Registration of Cosmetic Product Facility, and draft Form FDA 5067 — Cosmetic Product Listing — for review and comment. Comments on FDA’s proposed collection of information are due October 18, 2023. 88 Fed. Reg. 63960. More information is available in our October 12, 2023, memorandum. Please see related item below.

FDA Requests Comments On Cosmetic Regulation: On September 18, 2023, FDA announced that an information collection request (ICR) has been submitted to OMB related to requirements for implementing MoCRA. 88 Fed. Reg. 63960. MoCRA amends the Federal Food, Drug, and Cosmetic Act (FFDCA) and imposes additional labelling requirements on cosmetic manufacturers and a range of other requirements. The ICR includes FDA’s estimates for reporting recordkeeping burdens. FDA is accepting comments until October 18, 2023.

FDA Issues Two New Draft Guidance Chapters: On September 27, 2023, FDA announced the availability of two additional draft chapters for its draft guidance “Hazard Analysis and Risk-Based Preventive Controls for Human Food.” 88 Fed. Reg. 66457. The two chapters are Chapter 11 – Food Allergen Program and Chapter 16 – Acidified Foods. Both chapters are part of a multichapter guidance intended to “explain FDA’s current thinking on how to comply with the requirements for hazard analysis and risk-based preventive control,” a critical element of manufacturing under current Good Manufacturing Practices (cGMP) as required under the Food Safety Modernization Act (FSMA). Comments are due by March 25, 2024, to ensure that FDA considers the comments on this draft guidance before it begins work on the final version of the guidance.

FDA Updates FSMA Food Traceability FAQ: On September 28, 2023, FDA updated its Food Traceability Rule Frequently Asked Questions (FAQ) to include how FDA intends to conduct initial inspections beginning in 2027. FDA plans to take an “educate while we regulate” approach to support compliance as was done for other FDA FSMA rules. FDA intends to begin routine inspections in 2027. Additional information is available at FSMA Technical Assistance Network.


Austrian Academy Of Sciences Publishes NanoTrust Dossier On The Regulation And Safety Assessment Of Nanomaterials In Cosmetics In The EU: In August 2023, the Institute of Technology Assessment of the Austrian Academy of Sciences published a NanoTrust Dossier entitled “Nanomaterials in cosmetics — regulation and safety assessment in the EU.” Technical progress, as well as the experience gained during the implementation of the nanomaterial provisions of the Cosmetics Regulation, “now necessitate their adaption and update.” More information is available in our September 21, 2023, blog item.

EU Academy Offers Free Online Course On Nanomaterials In EU Legislation: The EU Academy, an online hub owned by the European Union (EU), is offering an online course on how EU legislation addresses nanomaterials. More information is available in our October 6, 2023, blog item.

White House OSTP Posts Readout Of Nanotechnology Infrastructure Leaders Summit: On October 6, 2023, the White House Office of Science and Technology Policy (OSTP) posted a readout of the first-of-its-kind Nanotechnology Infrastructure Leaders Summit, held September 11, 2023. According to OSTP, the meeting included the leadership of 35 different user facilities, open research laboratories, and innovation institutes that “share the mission of facilitating access to cutting-edge tools and expertise that are critical to research and development, which often occurs at the nanoscale.” Meeting participants discussed creating a more seamless national network, streamlining the pipeline from discovery to commercialization. More information is available in our October 12, 2023, blog item.

EPA OPP Work Group Reconsidering 100-nm Threshold For Nanomaterials: B&C understands that EPA’s Office of Pesticide Programs (OPP) has formed a work group to review data and information related to whether the current 100-nanometer (nm) threshold for determining whether a substance is a nanomaterial should be reviewed. Our May 10, 2022, blog item reported on a May 2022 news item published by EPA, “Advancing EPA’s Understanding of the Next Generation of Pesticides.” According to the item, the research team developed a review framework “that includes a simple decision tree to determine what products should be classified and evaluated as a nanopesticide.” Products determined to contain nanomaterials are subject to additional assessment or data needs from the manufacturer. More information is available in our October 10, 2023, blog item.

NNCO October 10, 2023, Symposium Postponed Until 2024: On October 2, 2023, the National Nanotechnology Coordination Office (NNCO) announced that its October 10, 2023, symposium entitled “Enabling the Nanotechnology Revolution: Celebrating the 20th Anniversary of the 21st Century Nanotechnology Research and Development Act” has been postponed. NNCO is working with the National Academies of Sciences, Engineering, and Medicine and its speakers to find a replacement date in late February or early March 2024. NNCO will share updated information by e-mail and on the symposium website when a new date is set.

FDA Holds 2023 NanoDay Symposium On Continuous Manufacturing Of Nanomaterials: FDA held a virtual 2023 NanoDay symposium on October 11, 2023, on the continuous manufacturing of nanomaterials. In the symposium, FDA provided an overview of Center for Drug Evaluation and Research (CDER) experience with approving several solid oral drug products that benefited from the continuous manufacturing technologies, as well as case studies of intramural and extramural research in the areas of nanomaterials and continuous manufacturing.

Registration Opens For Nano4Earth Roundtable Discussion On Capture of GHGs: Registration is open for Nano4EARTH’s November 2, 2023, roundtable discussion on nanotechnology-enabled GHG capture technologies that could help accelerate net-zero goals. NNCO states that although full-scale deployment of many nanotechnology-based GHG capture solutions could take longer than four years, the discussion “will focus on nearer-term opportunities for impact that could pave the way toward larger-scale implementation.” In-person and virtual registration is open.


B&C® Biobased And Sustainable Chemicals Blog: For access to a summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go to


House Bill Would Ban Use Of Organophosphate Pesticides In Food: On September 18, 2023, Representative Nydia M. Velázquez (D-NY) reintroduced the Ban All Neurotoxic Organophosphate Pesticides from Our Food Act (H.R. 5554). According to her September 19, 2023, press release, the bill is a “straightforward piece of legislation [that] would prohibit the use of organophosphate pesticides in food.” The press release states that organophosphate pesticides “are human-made chemical substances that are used on crops and have been shown to pose health risks to farmworkers and can affect children’s neurodevelopment and neurological function, including by exposure before birth.”

House Committee Holds Hearing On Science And Technology At EPA: On September 27, 2023, the House Committee on Science, Space, and Technology held a hearing on “Science and Technology at EPA.” According to the Hearing Charter, the purpose of the hearing was to discuss and review the science and technology activities at EPA and the use of science in the Agency’s regulatory decision-making processes. EPA Administrator Michael Regan was the only witness.

House Subcommittee Will Hold Hearing On EPA Regulations “That Threaten Modern Medicine, Innovation, And Our Standard of Living”: On October 18, 2023, the House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials will hold a hearing on “Exposing EPA Efforts to Limit Chemicals Needed for Life-Saving Medical Devices and Other Essential Products.” According to the statement issued by House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Environment, Manufacturing, and Critical Materials Subcommittee Chair Bill Johnson (R-OH), “many of the agency’s recent regulatory actions for the U.S. chemical sector go far beyond what is reasonable and could hurt America’s economy while pushing more innovation overseas to China. These proposals will undermine efforts to expand America’s manufacturing base, making it impossible to secure our supply chains and build products that people have come to rely on every day.”


ATSDR Publishes Final Toxicological Profiles For Beryllium, Chloromethane, And MTBE: On September 20, 2023, the Agency for Toxic Substances and Disease Registry (ATSDR) published final toxicological profiles for beryllium, chloromethane, and methyl-tert-butyl ether (MTBE). ATSDR toxicological profiles “succinctly characterize[] the toxicology and adverse health effects information for the toxic substance described therein. Each peer-reviewed profile identifies and reviews the key literature that describes a substance’s toxicological properties.”

CPSC Requests Information on PFAS in Consumer Products: On September 20, 2023, the U.S. Consumer Product Safety Commission (CPSC) published a request for information (RFI) on PFAS used in commerce or potentially used in consumer products, potential exposures associated with the use of PFAS in consumer products, and potential human health effects associated with exposures to PFAS from their use in consumer products. 88 Fed. Reg. 64890. CPSC also announced the availability of a contractor report with a focus on PFAS that are potentially used or present in consumer products. CPSC notes that the RFI “does not constitute or propose regulatory action, but rather is intended to inform the Commission and the public.” Comments are due November 20, 2023. More information is available in our September 25, 2023, memorandum.

CPSC Issues Final Rule Regarding Safety Standard For Button Cell Or Coin Batteries And Consumer Products Containing Such Batteries: CPSC issued a final rule on September 21, 2023, to complete Reese’s Law requirements for warning labels on the packaging of button cell or coin batteries. 88 Fed. Reg. 65296. CPSC states that button cell or coin battery packaging subject to the final rule must be certified as compliant with these warning label requirements. The rule will be effective September 21, 2024. Button cell or coin battery packaging manufactured or imported after September 21, 2024, must comply with the final rule. CPSC also published a direct final rule to incorporate by reference a voluntary standard as the mandatory standard for consumer products containing button cell or coin batteries. 88 Fed. Reg. 65274. The direct final rule will be effective October 23, 2023, unless CPSC received a significant adverse comment by October 5, 2023.

ECHO Releases Updated Version Of PFAS Analytic Tools: EPA announced on September 21, 2023, that the Office of Compliance within the Office of Enforcement and Compliance Assurance (OECA) has released an updated version of the Per- and Polyfluoroalkyl Substances (PFAS) Analytic Tools. The tools are hosted on EPA’s Enforcement and Compliance History Online (ECHO) website. Since January 2023, EPA has added the following sources to the PFAS Analytic Tools:

  • More than ten years of PFAS emissions data from the GHG Reporting Program;
  • More than 100,000 recent fifth Unregulated Contaminant Monitoring Rule (UCMR 5) public drinking water system monitoring results along with additional data elements collected;
  • Tens of thousands of environmental monitoring samples, including studies from EPA and the U.S. Geological Survey;
  • Hundreds of new waste manifests that have been identified as likely to have PFAS constituents;
  • Dozens of initial incident reports sent to EPA’s National Response Center for releases likely containing PFAS;
  • Discharge monitoring reports for close to 100 new facilities with PFAS monitoring in wastewater effluent; and
  • New data on federal sites with known or suspected PFAS detections and Superfund sites with PFAS detections.

EPA states that it will add the Toxics Release Inventory (TRI) PFAS data for reporting year 2022 to the Toxics Releases tab in fall 2023. FAQs are available on the ECHO website.

EPA Announces Updated Online P2 Hub Resources Center: EPA announced on September 21, 2023, an updated online Pollution Prevention (P2) Hub Resources Center “that features an expanded suite of tools and materials to help businesses and technical assistance providers implement P2 practices.” According to EPA, the P2 Hub includes links to more than 3,200 case studies, articles, and tools related to P2 and, since 2019, EPA has responded to nearly 1,000 requests from P2 practitioners for help with technical assistance through the P2 Hub Helpline.

Minnesota Requests Comments On Planned New Rules Governing PFAS In Products Reporting And PFAS In Products Fees: The Minnesota Pollution Control Agency (MPCA) published two Requests for Comments (RFC) on two planned PFAS rulemakings in the September 25, 2023, State Register, the PFAS in Products Reporting Rule (Revisor ID Number R-4828) and the PFAS in Products Fees Rule (Revisor ID Number R-4827). Comments on the RFCs are due by 4:30 p.m. (CST) on Tuesday, November 28, 2023.

  • The PFAS in Products Reporting Rule: The main purpose of this rulemaking is to establish a program for MPCA to collect information about products containing PFAS intentionally added to products sold, offered for sale, or distributed in Minnesota. As reported in our June 14, 2023, blog item, on or before January 1, 2026, a manufacturer of a product sold, offered for sale, or distributed in Minnesota that contains intentionally added PFAS must submit certain information; and
  • The PFAS in Products Fees Rule: The main purpose of this rulemaking is to establish PFAS in products reporting fees. MPCA states that creating a reporting process and reviewing PFAS compounds and concentrations for each manufacturer “will result in significant staff and information technology costs.” The rulemaking is intended to recoup those costs.

GAO Releases Report On Detecting, Limiting Exposure To, And Treating PFAS Contamination: The U.S. Government Accountability Office (GAO) publicly released a report on September 27, 2023, entitled “Persistent Chemicals: Detecting, Limiting Exposure To, and Treating PFAS Contamination.” GAO’s recommendations, published in earlier reports, include:

  • That EPA conduct a nationwide analysis using comprehensive data to determine the demographic characteristics of communities with PFAS in their drinking water;
  • That FDA request specific legal authority from Congress to compel companies to provide information they have about substances already on the market that come in contact with food; and
  • That the Department of Defense (DOD): (1) develop an approach to implement the prohibition on procuring certain PFAS-containing items; and (2) update its sustainable procurement guidance to implement PFAS-related policies and legislation.

More information is available in our September 29, 2023, blog item.

California Governor Vetoes Bill Banning PFAS From Cleaning Products, Floor Sealers, And Floor Finishes: On October 8, 2023, California Governor Gavin Newsom (D) announced that he vetoed a number of bills, including AB 727, which would prohibit, by 2026, the manufacture, distribution, or sale of cleaning products that contain intentionally added PFAS, and would apply this ban, by 2028, to floor sealer or floor finish products. Newsom’s veto message notes that the bill is one of three single-product chemical bans passed by the legislature to address PFAS in consumer products. According to Newsom, these bills do not identify or require any regulatory agency to determine compliance with, or enforce, the proposed statute, however. Newsom states that previously enacted single-product chemical bans, which also lack oversight, “are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” To instill consumer confidence and address effectively public health and environmental concerns, Newsom directed the California Department of Toxic Substances Control (CDTSC) to engage with the author and the legislature “and consider alternative approaches to regulating the use of these harmful chemicals in consumer products.”

Uhlmann Confirms EPA Will Not Pursue PFAS Enforcement Actions Against Farmers, Public Airports, And Municipal Wastewater Facilities: The American Bar Association (ABA) Section of Environment, Energy, and Resources (SEER) held its 31st fall conference October 11-13, 2023, in Washington, D.C. On October 12, 2023, in his remarks at the conference, David Uhlmann, Assistant Administrator for EPA’s OECA, stated that EPA will not pursue PFAS enforcement actions against farmers who used biosolids, public airports that used aqueous film forming foam (AFFF) for fire suppression, or municipal wastewater facilities so long as they were acting in good faith. B&C is a proud sponsor of the SEER conference.

EPA Announces Availability Of Draft IRIS Toxicological Review Of Inorganic Arsenic: EPA announced on October 16, 2023, the beginning of a 60-day comment period on the draft Integrated Risk Information System (IRIS) Toxicological Review of Inorganic Arsenic. 88 Fed. Reg. 71360. EPA states that it is releasing the draft IRIS assessment for public comment in advance of a Science Advisory Board (SAB) managed peer review. The external peer reviewers will consider public comments submitted to the EPA docket in response to this notice and any others provided at the public meeting when reviewing this assessment. EPA notes that it will consider all comments submitted to the docket when revising the document post-peer review. Comments are due December 15, 2023.

This Update is provided as a complimentary service to our clients and is for informational purposes. This Update may be copied or quoted, provided proper attribution is given. The contents are not intended and cannot be considered as legal advice.