The U.S. Environmental Protection Agency (EPA) announced the latest step in implementing its February 2019 “Action Plan” for regulating a group of synthetic chemicals called per- and polyflouroalkyl substances (PFAS) last week. While PFAS have long been used in a wide array of consumer and industrial products, they have recently become an emerging area of focus for environmental law and policy at both the state and federal level. The EPA’s latest Notice of Proposed Rulemaking (Notice) proposes adding PFAS to the list of chemicals for which facilities must report their annual manufacturing, processing, or use under the Emergency Planning and Community Right to Know Act (EPCRA).

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Environmental non-governmental organizations (NGOs) are pursuing litigation against EPA to force companies that have never intentionally used asbestos in a product to file reports linking their products to asbestos. Manufacturing and chemical companies should keep an eye on Asbestos Disease Awareness Organization v. Wheeler – currently pending in California federal court – where the NGOs seek to dramatically increase companies’ obligations to disclose that their products contain asbestos – even where it is just present as an impurity.
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In a key decision earlier this month with potentially hefty ongoing implications for developers and property owners, the U.S. Court of Appeals for the Third Circuit held a chemical company liable for nearly $1 million in pre-acquisition cleanup costs. The case is Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC and offers another clear illustration that property owners and developers may be liable for environmental response costs incurred before they acquired property.
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Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018.
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The Toxic Substances Control Act (TSCA) often seems like the forgotten federal environmental statute in that it gets less attention in the press and judicial decisions than statutes like the Clean Air Act, Clean Water Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  That said, a judge on the Northern District of California issued a high-profile TSCA decision worthy of some discussion.
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For the past several months, Monsanto has been in court challenging California’s decision to add the chemical glyphosate—the active ingredient in its herbicide Roundup—to the Proposition 65 list. It recently faced a setback when the California Supreme Court rejected Monsanto’s request to stay a lower court’s decision to include glyphosate among the 960 chemicals on the list.  California’s Office of Environmental Health Hazard Assessment (OEHHA) wasted no time after the decision and added glyphosate to the list on July 7, 2017.
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On the one year anniversary of major amendments to the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) issued three new “framework” rules on how it plans to prioritize and evaluate risks from new chemicals or new uses of chemicals — offering clearer guidance to manufacturers on how chemicals will be evaluated and regulated.
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Monsanto has, at least temporarily, lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup.  On January 27, 2017, a California judge tentatively dismissed Monsanto’s claims that the State of California unconstitutionally turned to an unelected, European organization to decide whether glyphosate posed a cancer risk.
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On Thursday, September 22, 2016, the Fish and Wildlife Service proposed a new rule to list the rusty patched bumble bee as “endangered” under the Endangered Species Act.[1] The rule would likely mean new restrictions for farmers and other landowners in parts of the 13 states where the bees are currently thought to exist. Specifically, it would prohibit harming or harassing the bees, which could limit the use of certain pesticides and herbicides. These restrictions would be imposed despite uncertain science about current bee populations and threats facing the species. Interested parties now have until November 21, 2016 to comment on the proposed rule and underlying scientific data.
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