When it comes to per- and polyfluoroalkyl substances (PFAS), the U.S. Environmental Protection Agency (EPA) is not messing around. The agency announced on June 10, 2021, three actions intended to protect communities from PFAS. This article summarizes the actions.
Reporting on PFAS manufactured in the United States. In the fiscal year 2020, the National Defense Authorization Act (NDAA) amended the Toxic Substances Control Act (TSCA) to add Section 8(a)(7), mandating the EPA promulgate a rule “requiring each person who has manufactured a chemical substance that is a [PFAS] in any year since January 1, 2011” to report certain information. The proposed rule would require all manufacturers (including importers) to report information related to chemical identity, categories of use, volumes manufactured and processed, byproducts, environment and health effects, worker exposure and disposal.
Manufacturers must report information to the extent known to or reasonably ascertainable by them. This would include “all information in a person’s possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know.” This would require reporting entities to evaluate their current level of knowledge of their manufactured products (including imports), as well as evaluate where they might find additional information. Submitters would need to inquire within the full scope of their organizations, not just use the information known to managerial or supervisory employees. This standard may also entail inquiries outside the organization to fill gaps in the submitter’s knowledge.
Withdrawing compliance guide on PFAS significant new use rule (SNUR). In accordance with the Biden Administration’s Executive Orders and other directives, the EPA withdrew a compliance guide it believes weakened the July 27, 2020 final SNUR for long-chain perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemical substances. The final rule prohibits companies from importing certain long-chain PFAS as part of a “surface coating” on articles without prior EPA review and approval. The EPA states examples of such articles include, but are not limited to, automotive parts, carpet, furniture and electronic components. The agency issued the compliance guide in January 2021 in the last days of the previous Administration and limited what would be considered a “surface coating” subject to the SNUR. The EPA removed the compliance guide from its website and it is no longer valid; however, the July 2020 SNUR continues to be in effect.
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Toxic release inventory (TRI) reporting on PFAS. For TRI reporting year 2021, the NDAA automatically added three PFAS to the TRI list because they are now subject to a SNUR under TSCA. The EPA issued a final rule on June 3, 2021, incorporating these requirements into the Code of Federal Regulations for TRI. Per the NDAA requirements, the PFAS additions became effective as of January 1, 2021. Reporting forms for these PFAS will be due to the EPA by July 1, 2022, for calendar year 2021 data.
Discussion
It isn’t surprising the EPA withdrew the compliance guide and added PFAS substances to TRI. However, the Section 8(a) reporting rule is unexpected. The EPA proposes that a PFAS includes any substance with at least two fluorine atoms on one saturated carbon and at least one fluorine on an adjacent saturated carbon, with neither carbon bound to a hydrogen. Based on this definition, the EPA provides a list of substances listed on the TSCA inventory and a list of low-volume-exemption substances that would be subject to reporting.
The requested information is similar to but more comprehensive than typical chemical data reporting (CDR). Major departures from CDR standards include no exemptions for small businesses, PFAS produced as byproducts, and PFAS-containing articles (including those containing PFAS as part of surface coatings). The EPA acknowledges some article manufacturers, including importers, may meet the “now known or reasonably ascertainable” criterion.
The EPA also seems to be missing various potentially affected North American Industry Classification System codes, given that the agency is proposing to have the reporting rule apply to articles. Trade associations and other industry stakeholders should engage in suitable outreach efforts to avoid the PIP (3:1) experience of earlier this year (see April 2021, “Better Understand TSCA’s Long Reach”).
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.
