EPA To Begin Process of Classifying PFAS as Hazardous Waste

On October 26, EPA announced it is acting upon a petition from Governor Michelle Lujan Grisham of New Mexico to tackle PFAS contamination under the Resource Conservation and Recovery Act (RCRA). In responding to the petition, EPA outlined plans to initiate the rulemaking process for two new actions under the hazardous waste law, reflecting the agency’s focus on using best available science and leveraging authorities to combat this shared challenge.

 

“We can only make progress for communities suffering from PFAS pollution if we work collaboratively across levels of government and harness our collective resources and authority,” said EPA Administrator Michael S. Regan. “Today, we are taking important steps toward developing new scientific approaches to confront these dangerous chemicals and strengthening the ability to clean up PFAS contamination. I thank Governor Lujan Grisham for her engagement and leadership, which will lead to better protections for people in New Mexico and across the country.”

 

“I applaud Administrator Regan for empowering states to follow New Mexico’s lead and hold PFAS polluters accountable,” said Governor Lujan Grisham. “By taking an urgent and science-based approach to this issue, we’re helping to protect communities in New Mexico and around the country.”

 

Governor Lujan Grisham’s petition requested that PFAS be identified as hazardous waste under RCRA, either as a class or as individual chemicals. In the Agency’s response, EPA announced the initiation of two rulemakings. First, the agency will initiate the process to propose adding four PFAS chemicals as RCRA Hazardous Constituents under Appendix VIII, by evaluating the existing data for these chemicals and establishing a record to support such a proposed rule. The four PFAS chemicals EPA will evaluate are: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS), and GenX. Adding these chemicals as RCRA Hazardous Constituents would ensure they are subject to corrective action requirements and would be a necessary building block for future work to regulate PFAS as a listed hazardous waste.

 

The second rulemaking effort will clarify in EPA’s regulations that the RCRA Corrective Action Program has the authority to require investigation and cleanup for wastes that meet the statutory definition of hazardous waste, as defined under RCRA section 1004(5). This modification would clarify that emerging contaminants such as PFAS can be cleaned up through the RCRA corrective action process.

 

These actions build on EPA’s broader strategy to comprehensively address PFAS pollution across the country, following its announcement last week of the PFAS Strategic Roadmap. The roadmap commits EPA to bold new policies to safeguard public health, protect the environment, and hold polluters accountable. The actions described in the PFAS Roadmap each represent important and meaningful steps to safeguard communities from PFAS contamination. Cumulatively, these actions will build upon one another and lead to more enduring and protective solutions.

PFAS are a group of man-made chemicals that includes PFOA, PFOS, PFBS, GenX, and many other chemicals. PFAS have been manufactured and used in a variety of industries around the globe, including in the United States since the 1940s. PFOA and PFOS have been the most extensively produced and studied of these chemicals. Both chemicals are very persistent in the environment and in the human body – meaning they do not break down, and they can accumulate over time. Evidence indicates that exposure to PFAS can lead to adverse human health effects.

 

Learn more about PFAS: https://www.epa.gov/pfas/basic-information-pfas and EPA’s Council on PFAS: https://www.epa.gov/pfas/epa-actions-address-pfas.

 

 

Record-breaking heat in the U.S. in 2021 endangered millions of workers exposed to heat illness and injury in both indoor and outdoor work environments. Workers in outdoor and indoor work settings without adequate climate-controlled environments are at risk of hazardous heat exposure, and workers of color are exposed disproportionately to hazardous levels of heat in essential jobs across these work settings.

 

In concert with a Biden-Harris administration interagency effort and its commitment to workplace safety, climate resilience and environmental justice, OSHA published an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings on Oct. 27, 2021. Currently, OSHA does not have a specific standard for hazardous heat conditions and this action begins the process to consider a heat-specific workplace rule.

 

“As we continue to see temperatures rise and records broken, our changing climate affects millions of America’s workers who are exposed to tough and potentially dangerous heat,” said U.S. Department of Labor Secretary Marty Walsh. “We know a disproportionate number of people of color perform this critical work and they, like all workers, deserve protections. We must act now to address the impacts of extreme heat and to prevent workers from suffering the agony of heat illness or death.”

 

The Advance Notice of Proposed Rulemaking will initiate a comment period to gather diverse perspectives and expertise on topics, such as heat-stress thresholds, heat-acclimatization planning and exposure monitoring.

 

“While heat illness is largely preventable and commonly underreported, thousands of workers are sickened each year by workplace heat exposure, and in some cases, heat exposure can be fatal,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “The Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings is an important part of our multi-pronged initiative to protect indoor and outdoor workers from hazardous heat.”

 

Heat is the leading cause of death among all weather-related workplace hazards. To help address this threat, OSHA implemented a nationwide enforcement initiative on heat-related hazards, is developing a National Emphasis Program on heat inspections and forming a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group to provide a better understanding of challenges and identify, and share best practices to protect workers.

 

 

The Nebraska NPDES general permit NER160000 for storm water discharges from construction sites, or “CSW general permit,” has been extended by the Nebraska Department of Environment and Energy beyond the expiration date of October 31, 2021, according to Title 119-Rules and Regulations Pertaining to the Issuance of Permits Under the National Pollutant Discharge Elimination System, Chapter 24.

 

If you were authorized to discharge under this permit prior to the expiration date, any discharges under this permit will automatically remain covered by this permit until the earliest of:

 

 

An executive directive was issued by Governor Whitmer on October 27 to limit the purchase of products containing PFAS by the state of Michigan. The directive sets a national precedent for state-level procurement policies focused on toxic chemicals and human health.

 

The policy directs the state to use its $2.5 billion purchasing power to purchase products that do not contain PFAS. According to the Ecology Center, other states have product-specific procurement restrictions, while Michigan’s policy will be implemented across all state purchasing including all products and their components, including packaging.

 

“Today Governor Whitmer took bold action to use the purchasing power of the State to prevent PFAS exposure,” said Rebecca Meuninck, deputy director of the Ecology Center. “Other states and municipalities have begun creating procurement policies and purchasing specifications related to PFAS in products but none are as broad as Michigan’s new directive that includes all product categories.”

 

States wield incredible purchasing power and can help smaller entities like municipalities, businesses, and institutions create more demand in the marketplace for environmentally preferable products. Thus far other states have issued procurement policies and specifications for individual products categories. For example, Connecticut issued a procurement policy related to PFAS in food contact materials. New York has purchasing specifications to avoid PFAS in products including food contact material, flooring, and furniture. Minnesota has led on different multi-state purchasing agreements which avoid PFAS in products such as office furnishings.

 

In 2019, the City of Ann Arbor created its sustainable procurement policy that contains the strongest language in the country on avoiding classes of toxic chemicals such as PFAS. Other municipalities in Michigan, across the Great Lakes region, and nationally are looking at Ann Arbor’s local policy to create their policies.

 

Earlier this month, PFAS-impacted community leaders across Michigan unveiled their PFAS Policy Agenda to launch the Great Lakes PFAS Action Network (GLPAN). State-level PFAS-free procurement was a key policy priority in the Agenda. "I applaud the Governor's Executive Directive today," said Robb Kerr, an Ann Arbor resident and Community Leader with the GLPAN. "Addressing PFAS contamination must take place at every level of government. We have an excellent procurement policy in Ann Arbor but the state’s action will greatly amplify its effect in the marketplace. I hope that many more states follow Michigan’s lead."

 

Michigan’s new directive will also push manufacturers and suppliers to disclose whether or not their products contain PFAS.

 

“PFAS are found in many different products purchased by states and municipalities,” said Meuninck. “These products range from food-contact materials in cafeterias, furniture and carpeting, and even building products such as sealants and caulks. PFAS-free procurement is a critical tool that states can take to turn off the tap on these forever chemicals.”

 

Michigan has over 170 PFAS-contaminated sites, 10 watersheds under investigation for PFAS-contamination, and it is estimated that nearly two million residents have PFAS in their drinking water. In Michigan, the federal, state, and local governments have spent over $139M on PFAS site clean-up and water filtration since 2018. The Governor’s new procurement directive is an important tool to prevent future PFAS contamination from the production, use, and disposal of PFAS-containing products.

 

 

In response to ongoing concerns about hazardous waste releases from metal shredders, the state Department of Toxic Substances Control (DTSC) is taking new steps to protect human health, the environment and vulnerable communities from impacts associated with metal shredding operations. These impacts include improper hazardous waste storage, soil contamination, and releases of hazardous waste into surrounding communities.

 

California’s Office of Administrative Law has approved DTSC’s emergency regulations, which clarify California’s definition of scrap metal. Based on this approval, DTSC requires metal shredders to monitor environmental conditions and provide financial assurance to address environmental concerns. Metal shredding facilities that generate and treat metal shredder aggregate will now need to apply for authorization from DTSC to continue those activities.

 

“After thoroughly researching this issue, we see an urgent need for regulating this industry with a new approach,” DTSC Director Dr. Meredith Williams said. “Every Californian should live and work in a healthy environment. Many of these facilities are in our vulnerable and underserved communities already suffering from a disproportionate amount of pollution. Greater oversight will help reduce this burden and create a better life for all who live, work, and play nearby.”

 

Monday’s decision is yet another example of how California is prioritizing and leading by example to protect public health and the environment. There is growing national recognition of the potential threat posed by metal shredder facilities. In July 2021, U.S EPA distributed an alert noting that many of these operations may violate the Clean Air Act.

 

Most scrap metal in California comes from old vehicles, appliances, construction and demolition materials, and manufacturing. Metal shredding facilities process the scrap to separate metals by type and separate out non-metal material.

 

DTSC conducted a comprehensive analysis of California’s metal shredding industry, documented in this final report released in August, 2021. The analysis, initiated by Senate Bill 1249, authored by Senator Jerry Hill, identifies repeated examples of hazardous waste violations – often in communities already burdened by multiple sources of pollution.

 

DTSC will replace the emergency regulations with permanent regulations developed through public input and the administrative law process. In addition, DTSC has rescinded Official Policy/Procedure 88-6 (OPP 88-6), which DTSC’s predecessor, the Department of Health Services, issued in 1988 to ensure a consistent regulatory approach to the management and disposal of auto shredder waste. DTSC has determined that the policy is inconsistent with current law.

 

For more information on the metal shredding industry and DTSC’s regulatory process, please visit dtsc.ca.gov/metal-shredders.

 

A Tennessee woman pleaded guilty to fabricating discharge monitoring reports required under the Clean Water Act and submitting those fraudulent documents to state regulators in Tennessee and Mississippi.

 

According to court documents and information in the public record, Diane Gordon, 61, of Memphis, was the co-owner and chief executive officer of Environmental Compliance and Testing (ECT). ECT held itself out to the public as a full-service environmental consulting firm and offered, among other things, sampling and testing of stormwater, process water and wastewater.

 

Customers, typically concrete companies, hired ECT to take samples and analyze them in a manner consistent with Clean Water Act permit requirements. Gordon claimed to gather and send the samples to a full-service environmental testing laboratory. The alleged results were memorialized in lab reports and chain of custody forms submitted to two state agencies, Mississippi Department of Environmental Quality (MDEQ) and the Tennessee Department of Environment and Conservation (TDEC), to satisfy permit requirements. In reality, Gordon fabricated the test results and related reports. She even forged documents from a reputable testing laboratory in furtherance of her crime. Gordon then billed her clients for the sampling and analysis. Law enforcement and regulators quickly determined that Gordon created and submitted, or caused to be submitted, at least 405 false lab reports and chain of custody forms from her company in Memphis to state regulators since 2017.

 

Pursuant to the terms of her plea agreement, Gordon will pay $201,388.88 in restitution to the victims of her crime.

 

“By fabricating these reports, Gordon betrayed her position of trust and violated her responsibility to provide information critical to evaluating water quality for residents in Tennessee and Mississippi,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “This prosecution shows the value of state and federal partnerships in investigating and prosecuting fraud and upholding the nation’s environmental laws for the good of public health.”

 

“The Clean Water Act ensures that water quality is maintained throughout the United States,” said Acting U.S. Attorney Joseph C. Murphy Jr. for the Western District of Tennessee. “Correct and accurate test results of discharges into rivers and stream and the honest reporting of those results to regulatory authorities are important parts of the Act’s regulatory framework. Without accurate test results and reporting of those results, the Clean Water Act will not work as Congress intended. Because honest reporting of this data is so important to the functioning of the Act, our office will vigorously prosecute individuals who falsely report test results.”

 

“The defendant’s job was to help her clients remain in compliance with the Clean Water Act but instead she chose to falsify the required analytical testing under the Act for financial gain,” said Special Agent in Charge Charles Carfagno of the Environmental Protection Agency – Criminal Investigation Division’s (EPA-CID) Southeast Area Branch. “Today’s guilty plea illustrates the consequences of such criminal behavior and that EPA-CID will continue to vigorously investigate those that choose to violate our environmental laws.”

 

Gordon pleaded guilty to knowingly and willfully making and using false writings and documents in a matter within the jurisdiction of EPA. She is scheduled to be sentenced on March 22, 2022, and faces a maximum penalty of five years in prison. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

 

EPA-CID is investigating the case. MDEQ and TDEC provided invaluable assistance to federal law enforcement officers.

 

Trial Attorney Banumathi Rangarajan of the Justice Department’s Environment and Natural Resources Division’s Environmental Crimes Section and Assistant U.S. Attorney Dean DeCandia of the U.S. Attorney’s Office for the Western District of Tennessee are prosecuting the case.

 

 

The Arizona Department of Environmental Quality (ADEQ) has published the Arizona Protected Surface Waters List (PSWL) called for by landmark surface water protection legislation signed by Governor Doug Ducey on May 5, 2021. House Bill 2691 is the first Arizona-specific water quality protection legislation enacted since the Aquifer Protection Program in 1991.

 

“When it comes to protecting water, Arizona is leading the nation by example,” said ADEQ Water Quality Division Director Trevor Baggiore. “Publishing the Protected Surface Waters List is a major milestone for surface water quality protection in Arizona and represents the cornerstone of the State program.”

 

With ADEQ’s implementation of HB2691 and publication of the PSWL, Arizona has achieved a clear and meaningful surface water protection program that provides Arizonans with certainty about which waters are protected as the decades-long debate about the federal Clean Water Act continues.

 

Arizona’s PSWL specifies all waters protected by the Clean Water Act and the new State Surface Water Protection Program — 883 rivers, streams and lakes critical for drinking, recreation and fish consumption.

 

“For the first time in Arizona history, we have a clear picture of every protected surface water in the State,” said ADEQ Water Quality Division Director Trevor Baggiore. “The Protected Surface Waters List and its accompanying interactive map provide clarity and consistency and allow ADEQ to work with facilities, stakeholders and volunteers to protect and monitor water resources that are critical to public health and the environment in Arizona.”

 

To develop the PSWL, ADEQ completed a comprehensive evaluation of Arizona’s waters to determine which waters are covered under both federal and state jurisdictions — not once, but twice. ADEQ accomplished this complex undertaking, by leveraging advances in science and technology to create a process and several new analytical tools. These efforts enabled ADEQ to necessarily evaluate Arizona waters for federal jurisdiction first based on the 2020 Navigable Waters Protection Rule, and then again in response to its vacatur in August 2021.

 

ADEQ will codify the PSWL in December 2023, following the conclusion of ongoing robust stakeholder dialogue.

 

 

This recall involves the Workload Men's Safety Shoes sold in U.S. sizes 7-13. The product contains EVA and rubber outsoles and a mesh/suede upper material, with a rounded toe and lace-up closure. The product displays: CSA number 723101, style number 13WULFLO2/WULFLO2, and UPC codes which can be found at this link.

 

The toecaps in the shoes may not meet CSA specification requirements related to impact resistance, posing a crush hazard. The company reported that 3575 units of the affected product were sold in Canada and were distributed by Wal-Mart Canada.

 

 

This recall involves seven models of myCharge power banks used for powering and recharging electronic devices that have a USB interface, such as tablets, cell phones, Bluetooth speakers, e-readers, etc. The power banks have an anodized metallic case that is blue, black or gray. “myCharge” is written on the front of the product case. The model name can be found on the back of the product case and on the bottom panel of the product packaging. The date code is printed on the outer packaging and the product case, except for the Adventure Mega and Adventure Mega C models where the date code is printed on the underside of a flap on the top of the product case.

 

The recalled powerbanks have the following model names, model numbers and date codes:

 

 

myCharge has received 30 reports of the power banks overheating, resulting in seven injuries, including burns to the upper body, hands, legs, and/or feet of users, and/or property damage to household flooring, walls and furniture. You should immediately stop using the recalled power banks and contact myCharge for instructions on returning the battery to obtain a refund in the form of an electronic voucher for the full purchase price plus a 25% bonus for redemption on www.mycharge.com.

 

The power banks were sold at Best Buy, Brainstorm, Hirsch Gifts, Hudson News, InMotion, Lapine, Power Sales, Projector World, and Target stores nationwide and online at www.amazon.com, www.mycharge.com and www.target.com and through the U.S. Marine Corps/Navy Exchange from August 2018 through December 2019 for between $70 and $100.

 

 

The Department of Environmental Management (DEM) announced a program of online resources including a training module in four languages aimed at limiting the harmful effects of chemicals in everyday cleaning products on human health and the environment. The Green Cleaning Pollution Prevention Program focuses on steering households and businesses away from cleaners and disinfectants containing volatile organic compounds (VOCs) and other hazardous chemicals and toward greener, safer alternatives.

 

Along with the Rhode Island Committee on Occupational Safety and Health and the Northeast Waste Management Officials Association, DEM created a simple and effective training program offering instruction on safe disinfection and chemical safety. It was administered across 14 training sessions from March to September for both English and Spanish-speaking audiences. The trainings were part of English Language Learners (ELL), English as a Second Language (ESL), and Spanish Speaking Occupational Safety and Health (OSHA) Hazardous Waste Operator 40-hour and 10-hour training programs. The training module is available in Spanish, Portuguese, and Chinese on DEM's website. DEM is holding a webinar on this topic on Thursday, Nov. 18, at 10:30 AM.

 

"The COVID pandemic has raised our awareness about the need to maintain a healthy indoor environment. It's also flu season when we're more concerned about keeping surfaces clean to avoid the spread of germs," said DEM Acting Director Terry Gray. "Through this program, DEM is trying to help Rhode Islanders change not only the cleaning products we use but also our mindset. We're encouraging households and businesses to think about issues like biodegradability, low volatile organic compounds, and low impact on indoor air quality before they buy their next supply of cleaners and disinfectants. I am grateful to DEM Senior Environmental Scientist Ann Battersby for her work in delivering such a timely, topical, and useful program to constituents."

 

Cleaning products are essential for maintaining healthy conditions in homes and in the workplace. Cleaning provides obvious aesthetic benefits such as the removal of dust, allergens, and infectious agents. It is important to note, however, that cleaning products can present several health and environmental concerns. Many cleaning products contain chemicals associated with eye, skin, or respiratory irritation, or other human health issues. They also may cause headaches and other health problems, including cancer. Some cleaning products release dangerous chemicals into the indoor air. These are VOCs. VOCs and other chemicals released when using cleaning supplies can contribute to chronic respiratory problems, allergic reactions, and headaches. Studies are underway to assess how these chemicals affect people who have asthma and other respiratory illnesses. Past studies have linked exposure to chemicals from cleaning supplies to occupational asthma and other respiratory illnesses.

 

Often, cleaners come in concentrated forms. Some of the concentrated commercial cleaning products are classified as hazardous. It creates potential human health and environmental risks if the products are handled, stored, or disposed of improperly. Using green cleaning products can help reduce the human health and environmental concerns that come along with cleaning. The US Environmental Protection Agency has a program called Safer Choice that helps consumers, businesses, and purchasers find products that contain ingredients that are safer for human health and the environment.

 

 

Navistar Inc., an integrated manufacturer of trucks and diesel engines based in Lisle, Illinois, has agreed to mitigate at least 10,000 tons of oxides of nitrogen (NOx) emissions and pay a $52 million civil penalty in a consent decree, lodged on October 25, to resolve violations of the Clean Air Act. In particular, Navistar illegally introduced into commerce on‑highway Heavy-Duty Diesel Engines (HDDEs) that were not covered by EPA-issued certificates of conformity.

 

In 2015, the United States filed suit against Navistar alleging that in 2010, after lower emission standards went into effect, the company introduced into commerce 7,749 HDDEs that were not certified and did not meet the lower emission standards. Navistar had marketed and sold the engines installed in its International-branded trucks as being EPA-certified model year 2009 engines even though it completed all manufacturing and assembling processes for the engines in 2010. The court held that the engines were in fact model year 2010 engines and required to be covered by a 2010 certificate of conformity demonstrating compliance with the lower emission requirements.

 

“Older diesel engines without modern emissions controls emit significant amounts of air pollution that harms people’s health and takes years off people’s lives,” said Acting Assistant Administrator Larry Starfield for the EPA’s Office of Enforcement and Compliance Assurance. “This harm is greatest in communities near busy roadways, which are too often overburdened by high levels of ozone and particulate matter pollution. Today’s settlement will protect these vulnerable communities by preventing the emission of 10,000 tons of NOx from older, heavily-polluting commercial vehicles and equipment.”

 

“This settlement shows we will hold companies accountable when they skirt the law to gain advantage at the expense of public health,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “The Department’s steadfast pursuit of this case achieved a just result, including that the company must mitigate the harm it caused and, in doing so, specifically must consider assisting communities overburdened by pollution.”

 

Under the settlement, Navistar will pay a civil penalty of $52 million, forfeit its current account of NOx credits, and purchase and destroy enough older diesel engines to prevent 10,000 tons of future NOx emissions, a powerful air pollutant known to cause significant adverse health effects. The settlement requires Navistar to structure its mitigation of NOx emissions through one or more programs approved by EPA that will take into consideration geographic diversity and benefits to communities that are overburdened by air pollution. Navistar will report back to the EPA on its implementation of the program to ensure compliance with the environmental justice and geographic distribution requirements in the consent decree.

 

This settlement comes after more than six years of diligent prosecution by the United States. The United States prevailed in the first phase of litigation when the U.S. District Court for the Northern District of Illinois held that Navistar was liable for the alleged violations. In the second phase, and facing an imminent trial on the remedies, the parties reached the negotiated resolution that is captured by the consent decree.

 

 

 

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