Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA

On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.

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U.S. EPA Proposes Nine PFAS Compounds as Resource Conservation and Recovery Act Hazardous Constituents

The Environmental Protection Agency (EPA or the Agency) is proposing to expand its authority under the Resource Conservation and Recovery Act (RCRA), including to extend its corrective action powers over an additional list of per- and polyfluoroalkyl substances (PFAS). Specifically, as part of the EPA PFAS Strategic Roadmap, EPA has prioritized development of a framework to regulate PFAS. In the June 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda), which lists federal agencies’ planned “short-term” and “long-term” regulatory actions, EPA included the short-term action of a proposed rule listing certain PFAS as hazardous constituents under RCRA.

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The Enforcement Angle: David Uhlmann and OECA

Join Sidley for the Environmental Law Institute’s People Places Planet Podcast series, “The Enforcement Angle.” Through this series, Sidley partners discuss state and federal enforcement of environmental laws and regulations with senior enforcement officials and thought leaders on environmental enforcement in the United States and globally. The featured guests offer their insights into the challenging environmental issues facing corporations today. (more…)

EPA Lists PFAS as “Chemicals of Special Concern” for Toxic Release Inventory Reporting

On October 31, the Environmental Protection Agency (EPA) issued a rule finalizing Toxic Release Inventory (TRI) data reporting requirements for per- and polyfluoroalkyl substances (PFAS), designating PFAS as “chemicals of special concern.” TRI data is reported by various industrial sectors to disclose to the surrounding community how listed chemicals are managed. Under this “chemicals of special concern” designation, PFAS are no longer eligible for the use of a de minimus exception, and, as a result, PFAS manufacturers must identify PFAS and notify downstream manufacturers of inclusion even if PFAS is used in low concentrations in such products as food packaging, carpet stain repellent, shampoo, dental floss, and nonstick cookware. Prior to this designation, PFAS inventories less than 100 pounds did not require reporting. This final rule is effective November 30, 2023 and applies for the reporting year beginning January 1, 2024 (reports due July 1, 2025).

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U.S. EPA Announces New Framework for Assessing New PFAS

On June 29, 2023, the U.S. Environmental Protection Agency (EPA) announced a framework for its approach to reviewing new per- and polyfluoroalkyl substances (PFAS) and significant new uses of existing PFAS. Stakeholders in sectors such as food packaging, textiles, semiconductors, and aerospace industries that continue to rely on PFAS compounds should take note. In general, EPA’s approval of new PFAS or new significant uses of existing PFAS may require additional testing — with substantial additional testing in some cases.

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Spring 2023 Agenda Previews Continued U.S. Significant Environmental Regulatory Action

On June 13, 2023, the Biden administration released the 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda). The Agenda lists federal agencies’ planned “short-term” regulatory actions to be taken over the next 12 months and “long-term” actions under development. The dates listed in the Agenda are based on publication dates in the Federal Register. Stakeholders should take note, as the Agenda provides a window into the administration’s priorities and strategies:

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EPA Proposes Updates to Toxic Substances Control Act Review Process, Including Removal of PFAS Exemptions

On Tuesday, May 16, 2023, the U.S. Environmental Protection Agency (EPA) released a prepublication version of a proposed rule instituting reforms to EPA’s regulations implementing the Toxic Substances Control Act (TSCA). EPA maintains a TSCA Chemical Substance Inventory, which lists all chemical substances known to be in commerce in the United States. Under TSCA, manufacturers and importers must submit a premanufacture notice for a new chemical substance unless an exemption applies (e.g., research and development). EPA must complete its risk determination for the new chemical substance before manufacture or import may commence. The proposed rule now makes clear that EPA must complete its risk determination on 100% of new chemical substances or approve an exemption notice before the associated product can enter the market, which aligns with amendments to TSCA made in 2016.

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EPA Seeks Public Input on Regulating Seven More PFAS for Superfund 

On April 13, 2023, the U.S. Environmental Protection Agency (EPA) issued an Advance Notice of Proposed Rulemaking (ANPRM) asking the public for input concerning potential designations of seven per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Based on public input and data to be received, EPA will evaluate whether these PFAS may present substantial danger to the public health or welfare or the environment.

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U.S. EPA Proposes First Enforceable PFAS Water Contamination Levels

On March 14, 2023, the U.S. Environmental Protection Agency (EPA) proposed its long-anticipated National Primary Drinking Water Regulation (NPDWR) to limit six common types of PFAS in drinking water. This is the first time EPA has sought to establish legally enforceable national PFAS[1] contamination levels for drinking water. This step represents the latest action under the Biden administration’s multistep plan to limit PFAS levels in the United States, building upon EPA’s October 2021 PFAS Strategic Roadmap and its pending proposal to designate certain PFAS as hazardous substances under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act.

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EPA Proposes Enforcement Initiatives Addressing PFAS, Climate Change, and Environmental Justice

On January 19, 2023, the U.S. Environmental Protection Agency (EPA) published a Notice soliciting public comment on its proposal to add environmental justice, climate change, and per- and poly-fluoroalkyl substances (PFAS) contamination to its National Enforcement and Compliance Initiatives (NECIs) for the 2024–2027 fiscal year cycle.

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