Performance Chemistries Weekly Roundup – 3.4.21

Ethylene Oxide (EtO):

• National Law Review reported that EPA “quietly” posted status reports on 25 “high-risk facilities” based on “known” EtO emissions and facility locations, but did not include emissions data or updated risk profiles for the facilities. The article notes that EPA has already committed to making “community notifications” regarding EtO risks by May 31, 2021 – but may perhaps occur sooner if the EPA reconsiders Inspector General Sean O’Donnell’s request from last week to shorten the notification timeline.
• Inside EPA published an overview of draft legislation in Georgia that would allow the state’s Environmental Protection Division (EPD) to install monitoring equipment at “EtO-emitting” facilities throughout the state. If approved and enacted, House Bill 3 and its companion Senate Bill 180 – introduced in January and February, respectively – would also require EPD to keep a daily log of emissions of EtO from the facility of interest and require each company allegedly emitting EtO to submit an ambient air monitoring plan by the start of 2022.
• Medical Design & Outsourcing published an opinion piece encouraging EtO industry actors to “take certain targeted steps now” to “minimize legal exposure, more efficiently manage litigation and be better situated for compliance once new federal regulations are established.”

Trichloroethylene (TCE):

• According to Inside EPA, seven environmental groups, including Safer Chemicals Healthy Families, Earthjustice, Union of Concerned Scientists, Natural Resources Defense Council, and others, sent a letter on Friday, February 26 to Acting EPA Administrator Jane Nishida, arguing that the agency’s decision to base its Toxic Substances Control Act (TSCA) TCE evaluation on “immune system harms rather than fetal heart damage” was indicative of “top political officials overruling career staff.”

Phthalates:

• According to Chemical & Engineering News, six members of Congress wrote a letter urging the Food and Drug Administration (FDA) to “update” its 2002 guidelines for use of phthalates and other “endocrine-disrupting chemicals (EDCs)” in medical devices, particularly IV containers, claiming the chemicals can “leach” during treatments.
• In response to legal action stemming from the Consumer Product Safety Commission’s (CPSC) move to ban several phthalates from use in children’s toys and care products in 2017, the U.S. Court of Appeals for the 5th Circuit called on the CPSC to review the rulemaking over procedural concerns during a Monday, March 1 ruling.

Per- and Polyfluoroalkyl Substances (PFAS):

• According to Inside EPA, the California Department of Toxic Substances Control (DTSC) published an article outlining “their basis” for regulating PFAS as a class under the state’s Safer Consumer Products (SCP) green chemistry program. The report states, “Based on the currently available science, we have concluded that it is both ineffective and impractical to regulate this complex class of chemicals with a piecemeal approach and have, therefore, initiated regulatory action to list certain consumer products containing any PFAS as Priority Products under the SCP regulations.”
• The Wall Street Journal’s editorial board published an opinion piece titled “Looting the Boy Scouts,” which scrutinizes tactics used by certain plaintiffs’ attorneys involved with ongoing litigation against Boy Scouts of America, noting that marketing practices across digital platforms over the past year has led to a “55-fold increase in new claims.” This example acts as a case study, providing insight into the “sophisticated new tort machine that leverages Wall Street litigation funding, third-party brokers to collect and commoditize claims, and sweeping online marketing that recruits and coaches claimants.” The article notes that trial attorneys utilize these same “tools of mass torts” in ongoing chemical litigation, which has been the subject of increasing interest over the past decade, specifically in the PFAS space. The law firms leading litigation against glyphosate, in fact, are now “spar[ring]” over $800 million in fees, with veteran firms arguing that they deserve a “bigger slice of one of the largest-ever corporate settlements” than the firms that joined later. FTI’s “Big Business of Big Tort” piece similarly puts mass tort cases into context to equip companies with the knowledge they need to operate both in the courthouse and in the court of public opinion.

Formaldehyde:

• According to the Environmental Working Group, the FDA unveiled a new webpage encouraging consumers to exercise caution when using formaldehyde in hair-smoothing treatments, sometimes referred to as “Brazilian blowouts.” The webpage encourages consumers to: avoid using formaldehyde-containing treatments at home; read the list of ingredients for hair smoothing products before purchasing; open a dialogue with their salon professionals regarding the use of formaldehyde in hair products; and, finally, report “bad reaction[s],” when appropriate.