New Guidance on Clean Water Act Permit Requirements

September 20, 2021
On January 20, 2021, President Biden signed Executive Order 13990, “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” This Executive Order directed EPA to review all regulations and policies undertaken by the previous administration and rescind or revise any that do not protect public health and the environment. Accordingly, EPA conducted a review of the Maui guidance.
In April 2020, the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund, addressing the question of whether a Clean Water Act NPDES permit is required for releases of pollutants from a point source to a jurisdictional water through groundwater (140 S.Ct. 1462 (2020)). The Court held that an NPDES permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Following the Court’s decision, in January 2021, EPA issued a guidance document entitled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program” explaining how to apply the Court’s decision in the NPDES program.
On September 16, EPA rescinded the guidance document that was issued by the Trump administration on January 14, 2021. With this action, EPA stated that the agency is preserving longstanding clean water protections.
“Using the tools provided by the Clean Water Act, EPA is committed to ensuring that all communities across America have clean and safe water,” said EPA Assistant Administrator for Water Radhika Fox. “Under President Biden’s Executive Order, EPA reviewed the last Administration’s Maui guidance and found that it was inconsistent with EPA’s authority to limit pollution discharges to our waters.”
The previous Administration’s Maui guidance reduced clean water protections by creating a new factor for determining if a discharge of pollution from a point source through groundwater that reaches a water of the United States is the “functional equivalent” of a direct discharge to such water. The addition of that factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a National Pollutant Discharge Elimination System (NPDES) permit. The agency is rescinding this guidance upon determining that this additional factor is inconsistent with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.
The Clean Water Act and a straightforward application of the U.S. Supreme Court’s decision provide important protections for the nation’s waters by ensuring that discharges of pollutants to groundwater that reach surface waters are appropriately regulated. This action will help protect water quality in lakes, streams, wetlands, and other waterbodies. EPA will work with state permitting agencies and the regulated community to implement the Supreme Court’s decision in County of Maui, consistent with law and science.
The Office of Water is evaluating appropriate next steps. In the interim, consistent with past practice and informed by the factors specified by the Supreme Court, EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires a permit under the Clean Water Act. The agency is committed to working with its state co-regulators, Tribes, and local partners to better protect water quality that is essential to public health and thriving ecosystems.
Alabama Electroplater Ordered to Properly Manage and Dispose of Waste and Protect Surrounding Community
EPA has issued an Administrative Order on Consent (AOC) directing Techtrix, Inc. (Techtrix), an electroplating and metal finishing shop located at 525 Plainview Street, Gadsden, Alabama, to immediately inventory, properly manage, and appropriately dispose of all solid and hazardous waste at their facility pursuant to Section 7003 of the Resource Conservation and Recovery Act (RCRA). Techtrix is located in a primarily residential area, and EPA, in coordination with the Alabama Department of Environmental Management (ADEM), have determined this action is necessary to protect the environment and public health of the surrounding community.
“EPA works with our state partners to hold companies accountable for complying with federal environmental laws that are designed to safeguard our communities,” said Carol L. Kemker, Enforcement and Compliance Assurance Division Director. “Under this Administrative Order on Consent, Techtrix will identify, contain and properly dispose all of its waste, thereby protecting the health of workers and nearby residents as well as the surrounding environment.”
The AOC requires Techtrix to provide site security to prevent potential human health impacts; inventory, manage and dispose of its solid and hazardous waste; and take steps to prevent the future mismanagement and releases of hazardous waste, among other things, to protect human health and the environment. ADEM will assist EPA in overseeing Techtrix’s compliance with the AOC.
The AOC follows a referral from ADEM and an EPA/ADEM March 2021 joint inspection and sampling investigation that revealed multiple RCRA violations, including failure to make hazardous waste determinations. Inspectors observed improperly managed solid and hazardous waste in tanks and containers, some of which were in poor condition and/or rusting. Some of these containers were incompatible with the wastes they contained, such that the wastes were leaking from the containers. Overall, due to the conditions of the containers, and the improper management of solid and hazardous waste, EPA determined that the Techtrix facility may present an imminent and substantial endangerment to human health and the environment. Techtrix agreed to perform the work as required by the AOC to address the imminent and substantial endangerment conditions. EPA provided opportunity for comment through a 14-day public comment period which started on August 27, 2021 and ended on September 10, 2021.
Owens-Brockway Glass Failed to Report Chromium Used in Glassmaking
EPA has penalized Owens-Brockway Glass Container, Inc. $38,900 for violating the Emergency Planning and Community Right-to-Know Act’s Toxic Release Inventory provisions when it failed to report information about toxic chromium compounds at its Portland facility.
Owens-Brockway Glass Container uses iron chromite to make green glass at the facility. When super-heated in a furnace, iron chromite produces new chromium compounds which are then incorporated into green glass bottles.
Under TRI, facilities that store, process, or manufacture certain toxic chemicals above threshold amounts must file annual reports of their chemical releases and transfers with EPA and appropriate state agency. In this case, EPA found that in 2017 and 2018 Owens-Brockway Glass Container failed to file required reports indicating it manufactured and processed chromium compounds in quantities that exceeded the threshold reporting amounts of 25,000 pounds.
The information in the reports serves as the basis of the Toxics Release Inventory, a national database that can be reviewed by communities, government, and industry. Because Owens-Brockway Glass Container’s TRI forms were not submitted in a timely manner, the information for these chemicals was not available to the public.
EPA targeted the Owens Brockway facility for inspections due in large part to its location within an economically disadvantaged community. EPA is strengthening enforcement in such communities to address disproportionately high and adverse human health or environmental effects of industrial operations on minority and low-income populations.
Texas Plastics Corporation Will Pay Nearly $3M for Clean Air Act RMP Violations
Formosa Plastics Corporation has agreed to pay $2.85 million in civil penalties and improve its risk management program to resolve alleged violations of the Chemical Accident Prevention Provisions of the Clean Air Act (CAA) at their petrochemical manufacturing plant in Point Comfort.
In the complaint, filed with the proposed consent decree, the United States alleges 20 violations of the CAA. Formosa’s Point Comfort plant is subject to Section 112(r) of the CAA regulations, known as the Risk Management Program, which are designed to prevent the accidental release of hazardous substances.
The EPA investigation of Formosa was spurred by a series of fires, explosions and accidental releases at the Point Comfort plant spanning from May 2013 through October 2016. These accidents caused injuries to workers, including second- and third- degree burns and chlorine inhalation requiring hospitalization as well as property damage and the release of extremely hazardous substances to the environment.
“Formosa repeatedly failed to comply with the chemical accident prevention provisions of the CAA at the Point Comfort plant, repeatedly placing their workers, neighbors and the environment in serious danger,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “This settlement will ensure Formosa’s compliance with essential regulations intended to protect workers and the community as well as help prevent dangerous chemical releases from occurring in the future.”
“This case demonstrates the importance of adopting and executing adequate chemical safety procedures to protect the safety of workers, the community and the environment,” said Acting U.S. Attorney Jennifer Lowery for the Southern District of Texas.
“Formosa’s failure to implement safe work practices and failure to design and maintain a safe facility put public health and the environment at risk,” said Acting Assistant Administrator Larry Starfield for EPA’s Office of Enforcement and Compliance Assurance. “Today’s settlement requires Formosa to achieve compliance with its environmental obligations now and in the future, protecting air quality and the community of Point Comfort.”
Formosa will be required to update its response and personal protection plans to prevent employee injury, conduct a third-party audit of its risk management practices, perform corrective actions based on audit results and develop key performance indicators to evaluate future compliance. In addition, the company agreed to conduct a service compatibility evaluation to identify any incompatible equipment and implement a mechanical integrity reporting program.
The cost of the injunctive relief is estimated to be at least $1.4 million and will greatly improve the safe management of hazardous substances at the facility.
Congress added section 112(r) to the CAA in response to a 1984 catastrophic release of methyl isocyanate in Bhopal, India, that killed more than 3,400 people and caused over 200,000 others to suffer injuries. Under the CAA, facilities like Formosa’s are required to identify hazards, design and maintain a safe facility, minimize the consequences of accidental releases that do occur and comply with regulatory prevention measures. Failing to comply with these requirements increases the risk of accidents and threatens surrounding communities.
Reducing the risk to human health and the environment by decreasing the likelihood of chemical accidents at chemical facilities is a top priority for EPA’s enforcement and compliance assurance program.
The proposed consent decree is subject to a 30-day public comment period and court review and approval. A copy of the consent decree is available on the Department of Justice website at
Mesa Line Services Cited for Safety Violations Following Worker’s Death and Severe Injuries to Another
One electrical construction worker died and another suffered severe injuries after falling about 15 stories from a platform that federal inspectors found was not secured properly to the crane suspending it. The employees were erecting electrical transmission lines near Houston.
An OSHA investigation determined Mesa Line Services LLC failed to secure the personnel platform to the jib of the crane as required, and took minimal steps to reconfigure the crane for use as an aerial lift. OSHA also identified several deficiencies in how the platform was attached to the crane’s jib.
OSHA cited Mesa for seven serious violations, including failing to follow manufacturer procedures when using a crane as an aerial lift, exceeding the rated capacity of a personnel platform and failing to secure the personnel platform to the jib assembly. The company faces $95,571 in proposed penalties.
“One life was lost and another worker is suffering needlessly from an incident that could have been prevented if the employer had followed required safety standards,” said OSHA Area Director Mark Briggs in Houston.
Headquartered in Houston, Mesa Line Services LLC provides electric construction contracting and other services. It is part of the Entregado Group, an investment platform of utility infrastructure executives and entrepreneurs focused on the utility and industrial infrastructure services sector, building, maintaining and restoring critical infrastructure for the transmission and distribution of electric power, telecommunications infrastructure for data transmission and communications, and critical utility services.
Ammonia Leak Occured 42 Days After Incident Killed 6 Workers
Jan. 28, 2021, an uncontrolled release of liquid nitrogen at a Gainesville poultry processing facility claimed the lives of six workers. Less than two months later, workers were again subjected to a chemical release at the plant, after an ammonia leak on March 11.
An OSHA investigation identified 23 safety and health violations at the facility. OSHA cited Foundation Food Group Inc. for exposing workers to dermal and respiratory hazards associated with the potential unexpected release of anhydrous ammonia and for failing to install a system that protected employees.
In addition, OSHA found Foundation Food Group failed to:
  • Guard horizontal shafts on conveyors, which exposed workers to caught-in hazards.
  • Provide adequate training and ensure workers used locks to isolate hazardous energy while servicing conveyors.
  • Label electrical breakers, cover unused openings in electrical boxes, and use electrical devices as designed, which exposed workers to electrical-shock hazards.
  • Provide fall protection while working from equipment at heights over 4 feet.
  • Require employees use eye protection while working with compressed air.
  • Provide adequate hearing protection, testing, and training for employees exposed to high levels of noise.
  • Maintain drainage in areas of wet processes, exposing employees to slip hazards.
The agency proposed $154,674 in penalties. “There is no situation where employees should be expected to risk serious injury or death, especially on the heels of a tragic incident that took the lives of six co-workers,” said Acting Assistant Secretary for Occupational Safety and Health Jim Frederick. “Foundation Food Group has again flouted their responsibility to assess workplace hazards and ensure measures are taken to protect employees. This is unacceptable and OSHA will continue its mission to hold employers accountable.”
Foundation Food Group Inc. provides fully cooked and precooked poultry products to food service and retail clients, and national restaurant chains.
Propane Adapter Hoses Recalled Due to Fire Hazard
This recall involves Gas One 50140 propane adapter hoses which are designed to be used with propane gas tanks. The hoses include model numbers: 50140-08, 50140-012, 50140-05GA, 50140. The recalled propane adapter hoses are part of manufacturer batch numbers Pearl River 3Q20 and Pearl River 4Q20 which is stamped on the hose.
The devices were sold online by Amazon, eBay, Gasone, Walmart, and Home Depot from December 2020 through February 2021, for between $9 and $18. Gas One has received five reports of adapter hoses swelling. No injuries have been reported.
If you have one of these adapter hoses, you should immediately stop using it and contact Gas One to obtain a free replacement hose. Details on obtaining a replacement  can be found at:
The hoses were imported by Price Zone dba J&S International, DBA Gas One of Commerce, Calif.
E-Z-GO PTVs and Tracker Off-Road Vehicles Recalled Due to Crash Hazard
This recall involves Personal Transportation Vehicles (PTV) and Utility Vehicles, based on Textron Specialized Vehicles’ TXT chassis, manufactured between March 1, 2021 and June 10, 2021. Recalled vehicles include the E-Z-GO Express S2, S4, S6 and L6, the E-Z-GO Freedom TXT, Valor and the Tracker Off-Road OX 400. These vehicles are commonly referred to as golf carts or golf cars and are used to transport people and material loads. The vehicle’s serial number can be found below the driver’s seat. The serial number range for the recalled E-Z-GO vehicles is 3509365 to 3531888 and the serial number range for the recalled Tracker Off Road vehicles is 8025639 to 8026154.
The vehicles were sold at E-Z-GO and Tracker Off-Road dealerships nationwide, online via E-Z-GO’s Dealer to Driveway program, and through Tracker Off-Road Ready to Buy program from March 2021 through August 2021 for between $6,000 and $13,000.
Textron Specialized Vehicles has received 19 reports of worn parking brake latch brackets. No injuries have been reported.
If you have one of these vehicles, you should immediately stop using it and contact Textron to arrange repairs.
Recycling Company Penalized for Violating Waste Site Cleanup Regulations
The Massachusetts Department of Environmental Protection (MassDEP) announced that D & G Recycling, Inc. has been penalized $31,000 to settle violations of the Massachusetts waste site cleanup regulations at their Northbridge property.
In March 2019, MassDEP issued a Notice of Noncompliance for failure to submit required documents for a reported release of oil and hazardous material at the company’s property, located at 2040 Providence Road. The property has been an auto repair and auto salvage yard since 1936 with three underground storage tanks containing gasoline and waste oil abandoned in place since 2005. Soil, sediment and groundwater at the property and adjacent wetlands are contaminated with volatile organic compounds, petroleum compounds and metals.
In 2014, the company started cleanup actions, but failed to document completion of the work and failed to classify the site in accordance with state regulations. Under the terms of a consent order, D & G Recycling must pay $7,750 of the penalty, with the remaining amount suspended for a year as long as the company abides by the order and completes the cleanup work at the site, including the removal of the abandoned underground storage tanks.
“Companies must communicate with MassDEP and make all efforts to timely complete required cleanup actions to address environmental contamination,” said Mary Jude Pigsley, Director of MassDEP’s Central Regional Office in Worcester. “Working with MassDEP is the most efficient way of accomplishing this goal and is particularly so in the case of small businesses with limited resources.”
DCP Operating Cited for Air Emissions
The New Mexico Environment Department (NMED) entered into a settlement agreement and stipulated final compliance order with Denver, Colorado-based DCP Operating Company, LP. (DCP) to resolve alleged statutory, regulatory and permit violations at twelve facilities in Lea and Eddy counties, New Mexico. DCP, headquartered in Denver, Colorado, is one of the largest natural gas processors in the United States. According to its website, DCP gathers and processes gas for customers including Chevron, Cimarex, ConocoPhillips, Devon and Oxy in the Permian Basin.
NMED cited DCP for illegally emitting almost 3.8 million pounds of pollutants, including nitrogen oxides, carbon monoxide, volatile organic compounds, sulfur dioxide and hydrogen sulfide between May 1, 2017, and June 30, 2019. The agreement includes a civil penalty of $950,000, a requirement to permanently cease operation of the highest sources of emissions at the Eunice Gas Plant and additional compliance assurance reporting to the Department.
“New Mexico is not a sacrifice zone. DCP has shown blatant disregard for New Mexico communities in which it operates and clean, breathable air by spewing millions of pounds of harmful pollution into frontline communities,” said NMED Cabinet Secretary James Kenney. “While this settlement begins to hold Denver-based DCP accountable – it is not enough. DCP’s Board of Directors must immediately take full responsibility for its operations in New Mexico and commit to stop violating our air quality regulations through capital investment, employee training, community engagement and continuous compliance.”
Pursuant to state law, the $950,000 penalty reverts to the State of New Mexico’s general fund and is not kept by NMED. The general fund is the primary state fund from which the ongoing expenses of state government are paid.
Failure to comply with emissions limits results in emissions of harmful levels of air pollutants that can impact public health and the environment, including contributing to the formation of ground-level ozone and other hazardous air quality conditions.
On September 20, the Environment Department’s ozone precursor rule, which requires significantly reduced emissions of nitrogen oxides and volatile organic compounds from the oil and gas industry, will go before the Environmental Improvement Board in a public hearing.
White River Marine Group Pays $203,500 for Selling Boats with Uncertified Evaporative Emissions Systems
White River Marine Group, a manufacturer of fishing and recreational boats, has paid $203,500 in penalties for violating state anti-pollution laws relating to marine watercraft. The Missouri-based company was cited for selling boats with uncertified evaporative emissions systems and missing labels. The penalty was the highest issued by the California Air Resources Board (CARB) since evaporative emissions requirements for recreational marine watercraft were adopted in 2018. The regulation applies to model year 2018 or later recreational marine watercraft, recreational marine engines, and/or any of its evaporative emissions control system components.
Engines that leak evaporative emissions put benzene and other hydrocarbons into the atmosphere, where they become pre-cursors to smog and can exacerbate respiratory and other health conditions.
“CARB regulations exist to protect the public from harmful air pollution,” said CARB Executive Officer Richard W. Corey. “We certify evaporative emissions systems to ensure that gasoline emissions do not escape into the atmosphere when engines are in use, and also when they are not. Manufacturers who circumvent these rules have to be held accountable and come into compliance if they want to continue selling their merchandise in California.”
CARB field inspectors discovered the noncompliant watercraft in 2018 during routine inspection visits to three dealerships in Rancho Cucamonga, Manteca and Rocklin. The inspection and investigation found 40 noncompliant vessels, and seven vessels missing Hang Tags (which include safety information and show that the engines are CARB certified), that were offered for sale.
Representatives from White River Marine were fully cooperative and took immediate corrective action, obtained CARB certification, submitted the requested documentation and put together a compliance plan to avoid future violations.
Pennsylvania Water Management Company Sentenced to Pay $2 Million in Fines for Clean Air Act Violations
The United States Attorney’s Office for the Middle District of Pennsylvania announced that United States District Judge Matthew W. Brann sentenced Rockwater Northeast LLC to pay $2 million in fines and $12,400 in special assessments for violating the Clean Air Act.
According to Acting United States Attorney Bruce D. Brandler, Rockwater Northeast LLC, a Pennsylvania- based company that provides water management services to companies in the oil and gas industry, pleaded guilty to an information charging 31 counts of violating the Clean Air Act. The information charged Rockwater Northeast LLC with tampering with the emissions systems on 31 heavy-duty diesel trucks owned by the company, and installing “defeat devices” that disabled emissions diagnostic systems on the trucks. Rockwater Northeast LLC also is alleged to have caused the trucks to pass annual vehicle safety inspections by the Department of Transportation (DOT), despite the modified emissions systems.
Separately, Select Energy Services, Inc., a Texas-based company and the successor in interest to Rockwater Energy Solutions, Inc., parent company of Rockwater Northeast LLC, entered a three-year non-prosecution agreement with the United States. The agreement resolves Clean Air Act violations for modified emissions systems on 29 additional heavy-duty diesel trucks that were owned by Rockwater Energy Solutions, Inc. Select Energy Services, Inc. paid an additional $2.3 million in monetary penalties pursuant to the terms of a non-prosecution agreement.
Select Energy Services, Inc. has cooperated with the investigation since its acquisition of Rockwater Energy Solutions, Inc. in 2017. Under the terms of the non-prosecution agreement, Select Energy Services, Inc. agreed to continue cooperating with the government, and implemented an environmental compliance program designed to prevent future Clean Air Act violations. Select Energy Services, Inc. also commenced conducting annual audits during the three-year term of the agreement, to ensure Clean Air Act compliance.
Six individuals have been prosecuted in connection with this investigation; four of whom are current or former employees of Rockwater Northeast LLC, and two of whom are former third-party vendors of Rockwater Northeast LLC. All six individuals pleaded guilty to conspiring to impede the lawful functions of the EPA and DOT, and to violate the Clean Air Act:
  • Brian Mellot, of Cumberland, Maryland, was sentenced to six months’ imprisonment and one year of supervised release;
  • Gavin Rexer of Jersey Shore, Pennsylvania, pleaded guilty
  • Dennis Paulhamus of Jersey Shore, Pennsylvania, pleaded guilty
  • Joseph Powell of Hickory, Pennsylvania, pleaded guilty
  • John Joseph of Canonsburg, Pennsylvania, pleaded guilty
  • Timothy Sweitzer of Jersey Shore, Pennsylvania, pleaded guilty
The matter was investigated by the EPA’s Criminal Investigations Division and the DOT’s Office of the Inspector General, with the  assistance of the Pennsylvania State  Police  and other law enforcement agencies. The case was prosecuted by a DOJ litigation team.
Justice Department and EPA Reach Clean Air Act Settlement with Xtreme Diesel Performance, Ending Sale of Defeat Devices
Xtreme Diesel Performance (XDP), an automotive parts manufacturer and retailer based in Wall Township, New Jersey, with a sales distribution center in Las Vegas, Nevada, has agreed to stop manufacturing and selling parts for diesel pickup trucks that, when installed, bypass, defeat or render inoperative EPA-approved emission controls and harm air quality, as part of an agreement to resolve alleged Clean Air Act violations. The company will pay a $1,125,000 penalty, which was reduced due to XDP’s limited financial ability to pay a higher penalty.
The complaint, filed simultaneously with the settlement, alleges that the parts described above are “defeat devices” prohibited by the Clean Air Act. XDP manufactured and/or sold over 27,000 aftermarket defeat devices between January 2015 and May 2017. XDP suspended sales of the defeat devices in September 2019 in an effort to resolve this matter.
“Defeat devices do an end run around decades-old Clean Air Act emissions requirements that protect public health and the environment,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division (ENRD). “As part of the Department of Justice’s national efforts to ensure that the aftermarket automotive parts industry complies with anti-pollution laws and focuses on legal products, this settlement ensures that XDP will eliminate defeat devices from its product line.”
“As a result of XDP’s actions, thousands of diesel pickup trucks now operate without filters, catalysts, and other essential emissions controls harming our nation’s air quality,” said Acting Assistant Administrator Larry Starfield for EPA’s Office of Enforcement and Compliance Assurance. “This action will stop the sale of these illegal products, preventing additional excess pollution caused by illegal aftermarket defeat devices and keeping the air we breathe clean.”
“Today’s settlement will prevent the future sale of approximately 11,000 illegal products per year,” said Acting Regional Administrator Deborah Jordan for the EPA Pacific Southwest. “The increased nitrogen oxides and particulate matter pollution stemming from defeat devices threatens the health of everyone, especially those with pre-existing health conditions, children, and older adults. EPA will continue to vigorously enforce the Clean Air Act’s defeat device prohibition to protect vulnerable communities located near highways that face a disproportionate amount of exposure from vehicle emissions.”
In addition to requiring XDP to pay a penalty of $1,125,000, the settlement requires XDP to destroy any violative products still in its inventory, cease providing technical support or honoring warranty claims for previously sold violative products, revise its marketing materials, notify the customers that purchased the subject parts that the products at issue violate the Clean Air Act and conduct compliance training for its employees and contractors.
EPA estimates that the products XDP sold may result in more than 12 million pounds of excess nitrogen oxides emissions and 115,000 pounds of excess particulate matter emissions over the anticipated remaining life of the diesel pickup trucks equipped with those products. This enforcement action will prevent additional excess emissions that would have resulted from the continued sale of these illegal products.
Tampering with diesel-powered vehicles by installing defeat devices can cause large amounts of nitrogen oxide and particulate matter emissions, both of which contribute to serious public health problems. These include premature death, aggravation of respiratory and cardiovascular disease, aggravation of existing asthma, acute respiratory symptoms, chronic bronchitis and decreased lung function. Numerous studies also link diesel exhaust to increased incidence of lung cancer. Respiratory issues disproportionately affect families, especially children, living in underserved communities overburdened by pollution. Stopping the sale and use of defeat devices will help reduce harmful air pollution that exacerbates the health effects of pollutant exposures.
Stopping the manufacture, sale, and installation of defeat devices on vehicles and engines used on public roads as well as on nonroad vehicles and engines is a priority for EPA.
The consent decree for this settlement was lodged in the U.S. District Court for the District of New Jersey and is subject to final court approval.
Removal of Toxic PFAS from Firefighter Gear Blocked
The NFPA, an industry-dominated standards setting body has rejected efforts to remove cancer-causing chemicals from firefighters’ protective gear, according to Public Employees for Environmental Responsibility (PEER). The same dangerous chemicals found in firefighting foam (PFAS or per-and polyfluoroalkyl substances), are also in the turnout gear firefighters wear to combat blazes.
Currently, high levels of PFAS in the material of their gear put firefighters into direct contact with chemicals that may be absorbed through the skin, ingested, or inhaled. PFAS are chemicals that do not break down in the environment and bioaccumulate in the human body. PFAS are associated with damage to the liver and kidneys, as well as heightened risk of testicular and kidney cancer, leading causes of firefighter mortality.
The National Fire Protection Association (NFPA) develops codes and standards for firefighter turnout gear (among other things).  The current NFPA Standards are written in a fashion that ensures all turnout gear must contain PFAS.
Roughly half of the voting members on the NFPA committees developing these standards are industry consultants, or PFAS and/or turnout gear manufacturers. The issue has been pushed by firefighters, some of whom themselves are cancer victims.
In a vote announced late on Friday, September 10, 2021, The NFPA Standards Council voted down an appeal by the International Association of Firefighters (IAFF) seeking to remove PFAS requirements.
“This unholy alliance between manufacturers and the NFPA only feeds the firefighter cancer crisis,” stated PEER Executive Director Tim Whitehouse.  “Firefighters already face enough dangers without having to worry about the chemicals infused in their protective gear.”
Turnout gear refers to trousers, boots, and jackets, or to the entire combination of personal protective equipment and personal protective clothing.  Recent studies show:
  • Widespread presence of PFAS in gear and protective equipment. One recent study found every set of turnout gear tested, whether new, old, used, or unused, contained high levels of PFAS;
  • Every firefighter wearing turnout gear that meets current standards is exposed to these chemicals every time they touch or wear their gear; and
  • PFAS shed from turnout gear is found in fire station dust, presenting an inhalation hazard.
“For the same reason health officials are warning firefighters to limit direct contact with foam, there is a serious health concern about firefighters’ direct contact with PFAS in their gear,” stated PEER Science Policy Director Kyla Bennett, a scientist and attorney formerly with the EPA. “Cancers of the kinds associated with PFAS are the leading causes of firefighter line of duty loss of life.”
The fight now shifts to courtrooms where personal liability suits are progressing, and to statehouses and Congress where bills to ban PFAS from firefighting foam and gear are advancing.
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