EPA Continues to Flex TSCA Muscles Through Three New Actions on PFAS

EPA has proposed a new rule that will require extensive new reporting from every entity in the US that (during any year since January 1, 2011) has manufactured or imported chemical substances and mixtures that EPA considers to be per- and polyfluoroalkyl substances (PFAS), as well as entities that have imported manufactured products and articles that contain PFAS. The scope of the proposed reporting obligations will be considerable, compliance will be challenging, and regulated entities will be in the thick of complying by mid-2023 since Congress has directed EPA (as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2020) to issue the final rule not later than January 1, 2023 and the submission period will begin six months after the final rule’s effective date. Entities that fail to comply with the final rule can face penalties of up to $41,000 per day per violation. The proposal can be found here. Comments are due August 27.

The proposed PFAS reporting rule is issued pursuant to the Agency’s extensive information and data gathering authorities under Section 8 of TSCA and is just one of several PFAS-related actions announced in press releases EPA issued in June. All of the actions are important to note, given their significant impacts on the numerous enterprises that manufacture, import, process and use countless formulations, products and manufactured articles that contain PFAS—perhaps without any awareness on the part of the businesses that acquire and use them.

In addition to the proposed TSCA Section 8 PFAS reporting regulation, EPA reminded the public of its intention to make use of the authority under TSCA’s Section 5 to act as a gateway before new chemicals and new uses of existing chemicals can be undertaken in the US. In 2020, EPA issued a Significant New Use Rule (SNUR) under TSCA that, among other things, requires reporting to EPA prior to importing manufactured articles to the US that contain a surface coating containing certain long-chain PFAS. Examples of articles that could contain PFAS as part of a surface coating include automotive components, garments, furniture and commercial and consumer use electrical equipment. In January of this year, prior to the transition in presidential administrations, EPA issued a “Compliance Guide” interpreting the SNUR. However, as part of the new administration’s effort to review regulatory actions taken by the Trump administration, EPA has announced its withdrawal of the Guide that EPA officials believed “weakened” the SNUR. EPA has removed the January 2021 compliance guide from its website and does not intend to issue a new version. 

Finally, EPA also took another step in implementing PFAS requirements Congress imposed under the NDAA when the Agency published in the Federal Register amendments adding three PFAS to the list of more than 170 PFAS for which reporting is required for EPA’s Toxics Release Inventory. The NDAA required the PFAS additions, which are effective as of January 1, 2021. Reporting therefore will be due to EPA by July 1, 2022, covering calendar year 2021 releases.

Because PFAS can be present in a very broad range of commercial formulations and products and manufactured articles, entities that acquire and use formulations and import manufactured products and articles are encouraged to carefully review EPA’s actions and to reassess their chemical regulatory compliance mechanisms to ensure they are up-to-date to avoid any potential problems with compliance.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.