US EPA Proposed Clean Air Act Endangerment Finding Targets Aviation Fuel

Lead was once a common additive in fuels, paints, glasses, batteries, pipes, ceramics, and more.  As the health effects of lead exposure came to be better known, Congress and EPA began targeting lead pollution under a variety of laws and regulations governing air and water pollution, including the Toxic Substances Control Act, Residential Lead-Based Paint Hazard Reduction Act of 1992, Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act (CAA), among various other non-statutory initiatives such as the 2018 Federal Lead Action Plan.  Lead exposure dropped dramatically as a result of these initiatives, but one industry still makes extensive use of lead-based products: aviation fuels for piston-engine aircraft which generate emissions that make up over half the country’s annual lead inventory.

On October 17, 2022, the United States Environmental Protection Agency issued a proposed finding that lead air pollution may reasonably be anticipated to endanger the public health and welfare within the meaning of Section 231(a) of the Clean Air Act, 42 U.S.C. § 7571, and further that engine emissions of lead from aircraft contribute to such pollution.  This is a two-pronged “endangerment” and “cause or contribution” finding which addresses both elements provided under Section 231 which provides that EPA shall “issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.”  An endangerment and contribution finding is therefore the first step in the process of regulating lead emissions from aviation fuels.  EPA often, but not always, combines these endangerment findings with the substantive regulations and emissions limitations but has not done so here.    

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UK Government Proposes 1,000 Fold Increase in Fines for Water Companies


The number of pollution incidents allegedly perpetrated by water companies in the UK has risen sharply in the last few years. On 3 October 2022, the UK Government shared proposals to raise the maximum cap on civil penalties for pollution incidents to unprecedented levels – from £250,000 up to £250 million per violation.

If retained by the Sunak Government, the proposals will be subject to consultation. If implemented, they would represent a 1,000-fold increase on current levels. 

Why the increase?

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China Publishes Draft List of Key New Pollutants under Pollutant Control Action Plan

We have been monitoring the progress China’s Ministry of Ecology and Environment (MEE) has been making on the goals set in its New Pollutant Control Action Plan, released in May 2022. One of the goals of the Plan was to release a list of key “new pollutants” for regulation and control, the categories of which would include persistent organic pollutants; endocrine disruptors; antibiotics; and microplastics, in 2022.

Just recently, the MEE released a draft list of key new pollutants and is soliciting public comment on the list by October 28, 2022. Instructions for making a public comment are available in the Notice. The complete list can be found here in Mandarin and here in English.

While the list is not final, it appears to cover several chemicals which are already subject to international conventions (including the Stockholm Convention on Persistent Organic Pollutants), phased out, restricted or heavily regulated in the US, UK, Japan, Korea and/or Europe. These include PFOA, PFOS, PFHxS, decabromodiphenyl ether, dicofol, and more. The draft list also contemplates the main control measures that may be implemented for each of these chemicals. These control measures range from the complete banning of production and use; to requiring import or export notices; to cessation of import or export; to strict enforcement of discharge limitations; to regular self-monitoring and report to supervising environmental bureaus.

As discussed in our previous article, once the final list is published, following the public comment period, the Plan then directs the MEE to begin gathering information in key industries from companies that produce, process, use, or discharge priority chemicals.

Ultimately, these recent concrete steps indicate that China is indeed more focused on strengthening its pollutant monitoring framework. Other steps referenced in the Plan that MEE has moved forward with include proposals to protect the Yellow and Yangtze Rivers, both of which were published in early and late August.

Squire Patton Boggs will continue to monitor China’s finalized new pollutant list and key updates to its pollutant control framework.

2022 Chemicals Workshop Webinar Series: PFAS, REACH and Other Chemical Regulatory Issues

science laboratory glassware

A recording of PFAS, REACH and Other Chemical Regulatory Issues the second webinar in our two-part 2022 Chemicals Workshop webinar series, in partnership with the Ohio Chemistry Technology Council (OCTC), is now available.

In this session, we provided an overview of the rapidly evolving landscape related to per- and polyfluoroalkyl substances (PFAS), including the proposed listing of perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), regulation under the Toxic Substances Control Act (TSCA), and the practical strategies, considerations and measures to assess legacy and current risks. We also discussed developments related to Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and other chemical regulatory issues in the UK and the EU.

View additional event information here.

2022 Chemicals Workshop Webinar Series: TSCA Developments and US EPA Updates

Chemical Structure

A recording of TSCA Developments and US EPA Updates, the first webinar in our two-part 2022 Chemicals Workshop webinar series in partnership with the Ohio Chemistry Technology Council (OCTC), is now available.

In this session, we reviewed US EPA’s implementation of the Toxic Substances Control Act (TSCA), including proposed “whole chemical” determinations and other Biden Administration initiatives. We discussed implications for the chemical industry, possible legal challenges and risk mitigation strategies, and reviewed developments in the Agency’s “new chemicals” program and related TSCA regulatory changes.

View additional event information here.

US EPA Launches Initiative to Streamline the Review Process for Certain Electric Vehicle and Clean Energy Chemicals

On October 5, 2022, the U.S. Environmental Protection Agency (EPA) announced its intent to streamline the review process of mixed metal oxides (MMOs).  MMOs are a key component in lithium-ion batteries, which are used in electric vehicles and other clean energy initiatives, including in semi-conductors, and renewable energy generation and storage, such as in solar cells and wind power turbines.  

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Prop 65 Regulatory Update for the Cannabis Industry: Tailored Warnings Become Effective October 1, 2022 with a 1-Year Grace Period for Compliance

CBD Products

As we noted in a prior post, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed tailored Prop 65 safe harbor warnings for THC and marijuana smoke, following listing THC for reproductive harm and marijuana smoke as cancer-causing in January 2020 (marijuana smoke was already listed for reproductive harm as of 2009). After considerable public comment and a published final statement of reasons addressing those comments, OEHHA announced on August 8, 2022 that it had approved amendments to the new tailored warnings.

The regulations will become effective on October 1, 2022. However, there is a one-year phase-in period and unlimited sell-through provision for products manufactured and labeled with compliant warnings before October 1, 2023.

In general, these amendments provide “non-mandatory, specific safe harbor exposure warning methods of transmission and content for retail products that can expose consumers to cannabis (marijuana) smoke or delta-9-THC via inhalation, ingestion, or dermal application, and for environmental exposures . . .” However, there are a few important items to note in the newly adopted regulations.

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US EPA Proposes PFAS Hazardous Substances Designation

In a landmark action, US EPA recently proposed to designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.”  If finalized, this rule would require entities to report releases of those PFAS substances and would authorize US EPA to order cleanups by potentially responsible parties.  Given the potential for widespread liability for such parties if the rule is finalized, it is likely to trigger significant debate from supporters and challengers alike.

The proposed rule would designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under CERCLA.  Although CERCLA has been enacted since 1980, this is the first time US EPA has proposed adding new substances to the hazardous substances list.  To propose designation as a hazardous substance, the Agency must determine that the substance may present substantial danger to public health or welfare or the environment when released. In the proposed rule, US EPA noted the widespread detection of PFOA and PFOS in the environment and cited the health and safety assessments for the substances that have been undertaken by numerous federal, state, and international governmental entities. Based on the adverse health effects identified in these studies, US EPA found a hazardous substance designation for PFOA and PFOS appropriate.  Notably, the Agency interpreted CERCLA to preclude it from taking cost into account in making this designation.

If the rule is finalized such that PFOA and PFOS are added to the list of hazardous substances under CERCLA, the most direct effect would be that parties will be required to report releases of one pound or more of those substances.  However, the indirect effects of the rule would likely be much more extensive and could include the ability for US EPA or state agencies to recover cleanup costs from potentially responsible parties and the ability for those agencies to respond to releases without making the “imminent and substantial danger” finding that is currently required.

Due to the persistent nature of PFAS, which are often termed “forever chemicals,” the pool of potentially responsible parties who could be held responsible for cleanup costs is extremely large.  US EPA has said that it is focused on holding responsible those who have manufactured and released “significant amounts” of PFOA and PFOS into the environment, and noted that it plans further outreach and engagement to hear from impacted communities during the consideration of the proposed rule.  Further, US EPA plans to consider designating other PFAS compounds as hazardous substances following this rulemaking. 

It is likely that the proposal will result in robust comment from many perspectives.  The rule stands to set significant CERCLA precedent as well as open the door to significant remediation efforts.  Squire Patton Boggs will continue to monitor this important issue. 

Environmental Justice for All: Expanding the US Environmental Justice Movement Through Permitting Decisions

Our team at Squire Patton Boggs continues to track environmental justice matters as the landscape evolves according to Biden Administration executive orders.  We have previously posted on environmental justice considerations in affordable housing and have updated readers on environmental justice initiatives under the Biden Administration.  This post explores how environmental justice considerations under Title VI of the Civil Rights Act of 1964 (Title VI) can impact environmental permitting decisions and, at times, business viability.

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Perspectives on the Evolving Regulatory Landscape for US Food and Beverage

There are a number of product safety challenges and risks facing the food and drink industry in the US, including balancing innovative products with regulatory compliance. Here, we explore what these risks are, how companies can prepare, how the recall landscape is evolving and our predictions for the future.

What Do You See as the Biggest Product Safety Challenges and Risks Facing the Food and Drink Industry?

Risks From Novel Foods and Health Claims

The Food and Drug Administration (FDA) in the US continues to issue warning letters for food products with novel ingredients, such as CBD. Any substance added to food is a food additive and must either be submitted for premarket review and approval, or be generally recognized as safe among qualified experts (GRAS). CBD generally is not recognized as GRAS or approved by FDA for use in food; therefore, food with CBD is prohibited from entering interstate commerce. Further, some companies add product claims that imply treatment/mitigation of a disease or effects on the structure/function of the body – causing the food to qualify as a new drug or a dietary supplement. Entities seeking to enter into the CBD market in the US, for humans or animal food products, should carefully assess the risks and engage legal counsel to review the products and claims being used.

Food and drink businesses in the US increasingly seek to cater to health-conscious consumers with claims such as “gluten-free,” “dairy-free,” or highlighting a lack of artificial flavors, etc. Industry participants need to be aware that each of these claims may be subject to FDA regulation. Consumers with allergies or dietary restrictions need to be able to rely on the veracity of such claims. For example, FDA is expected to release guidance on the Labeling of Plant-based Milk Alternatives: Draft Guidance for the Industry. The question of whether plant-based products, such as almond and oat milk, can be classified as a “milk” as part of their statement of identity has been a hotly contested issue in the US.

Read the full publication here.