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“Where’s the PFAS?” EPA Expands Search for PFAS in the Marketplace

On June 10, 2021, pursuant to Section 8(a) of the Toxic Substances Control Act (“TSCA”), the U.S. EPA proposed a rule requiring manufacturers and importers of per- and polyfluoroalkyl substances (“PFAS”) to report information and data on PFAS manufactured or imported into the U.S. since 2011 (the “Proposed PFAS Rule”). As proposed, the Proposed PFAS Rule will require a significant data-gathering effort and expand the number of parties who must report information about PFAS to EPA. EPA intends to use this information to support risk assessments of new and existing chemicals under TSCA. EPA’s publication of the Proposed PFAS Rule in the Federal Register will kick off a 60-day public comment period.

Manufacturers (a term which includes importers) have long been subject to reporting chemical manufacture and use data to EPA under the TSCA Chemical Data Reporting (“CDR”) rule. The Proposed PFAS Rule, however, is much more expansive and goes much further. The Biden Administration has made clear that EPA is seeking to gather all information available about PFAS manufacturing in the United States, and, as such, it has proposed a rule that broadly defines and even expands the scope of PFAS substances, extends the reporting period to ten years, and includes additional reporting of health and safety studies and reports.

Of even more significance in the Proposed PFAS Rule is EPA’s removal of certain exemptions and thresholds. In key part, EPA is proposing no minimum volume for reporting and eliminating the exemptions for articles, impurities, and by-products. As a result, chemicals or articles with any level of the extended definition of PFAS would be subject to reporting.

If you think the Proposed PFAS Rule may not apply to you, think again. In addition to all PFAS manufacturers being subject to reporting, the Proposed PFAS Rule applies to importers of articles that contain PFAS, even if the PFAS are present as an impurity, and no matter how small the amount. Recall the whirlwind we saw in March when EPA’s final rule prohibiting phenol, isopropylated phosphate (3:1) (PIP (3:1)) caught many companies off-guard as they were not aware of the presence of this chemical in their imported articles.

EPA has estimated 234 entities would be subject to reporting under the new rule; however, given the Proposed PFAS Rule’s expansion to reporting PFAS-containing articles, impurities, and by-products, that number is likely to be a significant underestimate.

Potentially affected parties should consider the implications of the Proposed PFAS Rule and ensure EPA is aware of the impacts and concerns during the comment period.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 166

About this Author

Sarah Slack, environmental compliance counseling lawyer, Foley Lardner law

Sarah Slack is senior counsel and an environmental lawyer in the Business Law Department at Foley & Lardner LLP. Ms. Slack is a member of the Environmental Regulation Practice and the Life Sciences and Energy Industry Teams.

Ms. Slack divides her time between remediation/redevelopment work, environmental compliance counseling, transactions and environmental litigation. Ms. Slack has extensive experience on the cutting edge of Clean Air Act, Clean Water Act, Superfund, and RCRA enforcement, as well as citizen suit litigation, settlement...

Dorothy Watson, Foley Lardner Law Firm, Orlando, Environmental Law Attorney
Of Counsel

Dorothy E. Watson is of counsel at Foley & Lardner LLP and a member of the firm's Environmental Regulation Practice and Energy and Manufacturing Industry Teams.

Ms. Watson has worked with clients on a wide range of environmental matters, including compliance counseling, rulemaking, permitting, site remediation, brownfield redevelopment, corporate transactions, and litigation matters. Her experience extends to matters under Superfund, RCRA, the Clean Air Act, the Clean Water Act, TSCA, FIFRA, MSHA, and OSHA, as well as state environmental...

Nicholas R. Johnson Foley Lardner Law Firm state voluntary cleanup programs lawyer

Nicholas (Nick) Johnson is an associate with Foley & Lardner LLP and a member of the firm’s Environmental Regulation Practice.

Mr. Johnson has substantial experience in all facets of environmental law and corporate environmental risk management, including both contested proceedings and general regulatory guidance and advice with respect to CERCLA, RCRA, TSCA, the Clean Water Act, the Clean Air Act, state voluntary cleanup programs, and other state and federal environmental laws. Mr. Johnson routinely works with buyers, sellers, investment...

Mia Lombardi Environmental Attorney Foley & Lardner Milwaukee, WI
Special Counsel

Mia Lombardi is special counsel and an environmental lawyer with Foley & Lardner LLP. She is a member of the firm’s Business Law Department and Environmental Practice.

Mia has extensive experience in a range of environmental matters with a focus on regulatory compliance, transactions, remediation and product stewardship. She has counseled on regulatory requirements and non-compliances under state and federal waste, wastewater, drinking water and air regulations as well as implementation of compliance assurance and assessment programs. She has supported numerous mergers,...