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).
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.
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:
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.
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.
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.
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.
EPA Amends All Appropriate Inquiries Rule
On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a Final Rule to amend its All Appropriate Inquiries (AAI) Rule. The AAI Rule is the EPA regulation that sets the process for conducting an inquiry into a property’s environmental conditions in order to obtain protections from liability under the federal Superfund Law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The amended rule updates the reference to the latest American Society for Testing and Materials (ASTM) E1527-21 Standard Practice as one method for conducting a Phase I Environmental Site Assessment (Phase 1 ESA) that would satisfy EPA’s AAI requirements. The rule takes effect on February 13, 2023 — but allows a one-year transition before EPA will no longer accept the former ASTM Phase I ESA standard (E1527-13) as meeting the AAI requirement.
U.S. EPA Takes Additional Steps to Evaluate and Restrict PFAS in Pesticides
On September 13, the U.S. Environmental Protection Agency (EPA) published a notice proposing to remove 12 per- and polyfluoroalkyl substances (PFAS) from its list of inert ingredients approved for use in regulated pesticide products. The 12 PFAS are listed below. According to EPA’s review, none of the 12 PFAS are being used as inert ingredients in any registered pesticide products; however, removing chemicals from EPA’s list of approved inert ingredients ensures that any future proposed use of these PFAS as inert ingredients would require substantiation with data (including, among other things, studies evaluating potential carcinogenicity, genotoxicity, adverse reproductive effects) and approval by EPA.
U.S. EPA Identifies Five PFAS Added to Toxic Release Inventory List, Four of Them Newly Required for Reporting by July 1, 2023
On July 18, 2022, the U.S. Environmental Protection Agency (EPA) issued a final rule updating the Toxics Release Inventory (TRI) to identify five per- and polyfluoroalkyl substances (PFAS) added to the TRI pursuant to the framework set by the National Defense Authorization Act for Fiscal Year 2020 (NDAA). (more…)