Last month, the Environmental Protection Agency (EPA) released a proposed rule that would require more data from manufacturers on per- and polyfluoroalkyl substances (PFAS) made since 2011. In the proposed rule, which can be read here, EPA announced their intention to gather certain information going back to January 1, 2011 in accordance with revisions to the Toxic Substances Control Act (TSCA) mandated by the FY 2020 National Defense Authorization Act (NDAA). This one-time reporting obligation would apply to both chemical manufacturers and processors, as well as companies that import manufactured articles containing PFAS. Subject manufacturers and companies that imported any PFAS between January 1, 2011 and the effective date of the final rule, would be required to report information detailing the specific PFAS, the category of its use, the total amount manufactured or processed, any resulting byproduct, existing information regarding its effects, the number of individuals exposed and the disposal method. Moreover, the information would need to be submitted within one year of the proposed rule being finalized.
In addition to EPA’s rulemaking proposal, EPA also took action to rescind a compliance guide issued by the previous administration regarding the importation of surface coated articles. This compliance guide was intended to provide guidance concerning EPA’s July 2020 Significant New Use Rule (SNUR), which requires companies to seek EPA approval before importing manufactured goods using certain long-chain PFAS as a surface coating. The current administration concluded that the guide weakened the rule governing EPA’s evaluation of certain long-chain PFAS by narrowly construing what would be considered a “surface coating” under the rule. While the compliance guide was revoked, the July 2020 Significant New Use Rule (SNUR) is still in place.
Finally, EPA also officially added three additional PFAS to the Toxic Release Inventory (TRI). This is a final rule without opportunity for public comment or prior notice, under NDAA requirements that allow for additional PFAS to be annually added to the TRI when they meet certain conditions. Here, the three PFAS, perfluorooctyl iodide (CAS No. 507-63-1), potassium perfluorooctanoate (CAS No. 2395-00-8), and silver(I) perfluorooctanoate (CAS No. 335-93-3), were added because they are subject to a SNUR under TSCA Section 5(a)(2). Companies who release these PFAS through manufacturing, usage or processing must begin reporting these new PFAS on July 1, 2022, as part of their ongoing TRI reporting obligations. For the very first time, companies were required to report releases of PFAS under TRI in the 2021 reporting year.
Lathrop GPM is following this and other PFAS legislative developments as congressional attention over PFAS increases. Follow the PFAS Playbook for further developments.
*The author gratefully acknowledges the work and contributions of Libbi Wilson, a 2021 Summer Associate at Lathrop GPM, in preparation of this blog post.
Matt Walker’s practice includes all areas of environmental law, including litigation, regulatory compliance, and assistance with corporate transactions. He utilizes his background working for environmental regulatory ...
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Lathrop GPM has deep experience developing regulatory strategy and defending litigation in the area of per- and polyfluoroalkyl substances (PFAS), and we have been involved in some of the nation’s most-publicized cases. The PFAS Playbook blog is dedicated to helping readers stay up to date and understand the latest regulatory updates on PFAS.