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Environmental Edge
July 3, 2023

Latest Developments on PFAS, TSCA, and More Are Captured in the Summer Edition of the Chemical Compound

Environmental Edge: Climate Change & Regulatory Insights

The latest edition of our Chemical Compound newsletter has just been published. It covers regulatory, legislative, litigation, and other notable developments at the federal and state levels regarding chemicals of concern to business.

This edition highlights recent and impending actions the U.S. Environmental Protection Agency (EPA) is taking on per- and polyfluoroalkyl substances (PFAS) pursuant to the Toxic Substances Control Act (TSCA), including far-reaching reporting and recordkeeping requirements under TSCA Section 8(a)(7) that will affect manufacturers and importers of PFAS and PFAS-containing products if the final rule does not significantly modify EPA’s 2021 proposal. The 2016 amendments to TSCA set a January 1, 2023 deadline for EPA to promulgate the final rule. The rule has yet to be finalized, but on May 25, 2023, the White House’s Office of Information and Regulatory Affairs received the final rule for interagency review. And in its spring 2023 regulatory agenda, EPA estimated that a final rule will be promulgated in September 2023. The scope and potential economic impacts of the regulation as proposed have been the subject of considerable public comment and concern, with estimates of the economic burdens of the rule having been updated following more careful consideration of its potential impacts on small businesses. The costs to industry, as revised by EPA, are estimated to approach nearly US$1 billion.

PFAS and PFAS-containing products also are being regulated by several significant new state laws that are addressed in this edition of the Chemical Compound, including the new Minnesota law that will prohibit any product that contains intentionally added PFAS beginning January 1, 2032, unless the use of PFAS in the product is deemed a currently unavoidable use. Minnesota’s prohibition has a similar scope and will have a staggering impact similar to one taking effect in 2030 in Maine because both prohibitions go far beyond just consumer products and will affect products intended for commercial and industrial uses, and products used in manufacturing other products (such as automated and mechanical equipment used in factories).

This edition of the Chemical Compound also includes not-to-be-missed updates on steps that EPA has taken towards regulating perchloroethylene (PCE) and methylene chloride, two of the first 10 substances for which EPA conducted risk evaluations under the amended TSCA. EPA currently is taking public comments on proposed risk management rules for these two substances. The proposed rules would prohibit all consumer uses and most commercial and industrial uses of methylene chloride and PCE and would phase out the commercial use of PCE for dry cleaning and spot cleaning over 10 years. More details about the proposed rules are in the Chemical Compound, along with discussion of numerous other developments such as the final rule on treatment of confidential business information under TSCA and a proposed framework rule for review of new chemicals, which would include an end to certain exemptions for PFAS.

To learn more about these and other important developments, read the entire issue here.

© Arnold & Porter Kaye Scholer LLP 2023 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.