Read the full article by Corinne Snow and Simon Willis (JD Supra)

“Per- and polyfluoroalkyl substances, known collectively as ‘PFAS,’ are synthetic organic compounds that do not occur naturally in the environment. Some of these chemicals have been used for decades in a wide variety of consumer and industrial products. Legislative or regulatory action related to PFAS continues to be a focus of the Biden administration, Congress, and EPA Administrator Michael Regan. Multiple bills are pending at the state and federal levels that would address PFAS in various ways, often with the most immediate focus on perfluorooctanoic acid and perfluorooctane sulfonic acid (known as ‘PFOA’ and ‘PFOS’), the two chemicals which have so far been the most well-studied of the PFAS class. For the myriad of other PFAS chemicals, the evidence on potential health and environmental effects is sparse. To respond to this lack of information, a new proposed rulemaking from EPA seeks to begin collecting data from PFAS manufacturers that may pave the way for future rules that could apply to PFAS chemicals. The rule covers at least 1,364 types of PFAS, and EPA predicts that this proposed rule will affect the petroleum, coal, chemical, plastics, car, and machinery manufacturing industries, as well as chemical wholesalers, gas stations, and many others.

Legal Background

The proposed rule comes pursuant to the Toxic Substances Control Act (‘TSCA’), a law that provides EPA with authority to require reporting, recordkeeping, and testing requirements related to ‘chemical substances.’ Section 8 of the TSCA contains the TSCA Inventory, a list of over 83,000 chemicals that entities which manufacture or process them over the reporting threshold are required to report information on to EPA.1 These reports are submitted electronically on a four-year cycle through the Chemical Data Reporting (‘CDR’) process, which many manufacturers will already be familiar with for various non-PFAS chemicals. The data collected is used to support EPA’s risk evaluation and management activities and allow the agency to develop an understanding of how chemicals are used, in what amounts, and possible points of exposure in commerce.

In 2019, Congress passed the National Defense Authorization Act for Fiscal Year 2020, which, among other provisions, amended TSCA’s section 8(a) to add section 8(a)(7), entitled ‘PFAS Data.’ Section 8(a)(7) requires EPA to 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 information to EPA as described in TSCA section 8(a)(2)(A)-(G).

While many aspects of the new PFAS rule are the same as those for CDR regulations, EPA has noted that there are important differences — primarily the lack of a reporting threshold — which means that small manufacturers are not excluded from the reporting requirements. Additionally, while the proposed rule states that it will use the same knowledge standard as CDR regulations, the description of this standard is broad, suggesting that inquiries to entities outside the manufacturer and use of customer surveys may be required…”