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.
