The rapidly-developing regulatory landscape related to per- and polyfluoroalkyl substances (PFAS) is keeping the regulated community on its collective toes. Below we provide some updates.
PFAS – TSCA Information Requirements
Updating our blog on October 5, 2023, on the PFAS TSCA Rule, we said then that this new rule was “significant” and that the list of reportable information under the new rule is extensive.
In a recent blog by Arnold Porter, they spell out the extent of these requirements.
According to the blog, the EPA requires reporting for each site of each of the PFAS “in a long list of data elements, reportable ‘to the extent known to or reasonably ascertainable by.’” These elements include:
- Company and plant site information for each site at which a reportable chemical substance is manufactured
- Chemical name and specific identity
- Trade or common name
- Representative molecular structure
- Physical form of chemical or mixture
- Industrial processing and use information
- Consumer and commercial use information
- Manufactured amounts, including production volumes
- Whether the substance is imported for use on-site or solely for distribution
- Whether the uses are site-limited
- Maximum quantity stored on-site at any time
- Total volume recycled on-site
- For byproducts produced during the manufacture, processing, use, or disposal of each PFAS, identifying information for the chemical and its releases to the environment, if any
- Worker exposure at various sites
- Disposal processes
- Total volume released and incinerated on-site
- All existing information related to health and environmental effects, using the Organization of Economic Cooperation and Development (OECD) harmonized templates
- Other data relevant to health and environmental effects. The scope of this final category of information is not limited to studies conducted or published since 2011
In their conclusion, they state, “The lengthy and complicated PFAS reporting rule will require manufacturers and importers of PFAS to devote considerable time and attention to determining their compliance obligations and devising a strategy for gathering the necessary information in a timely and accurate way, and to ensuring the information prepared is carefully reviewed in light of the collateral enforcement concerns noted above, before submission is made.”
Environmental rules and regulations surrounding PFAS are mounting (Photo by Wesley Tingey on Unsplash).
We have read a number of legal blogs cautioning companies to pay attention to this new rule as it will require a significant amount of work to comply with the EPA’s timeline required by the PFAS-TSCA Rule.
While there are 18 months from the time that the rule is final until final submissions are due, if you are potentially affected, it would be prudent to begin your leg work now rather than later. During a recent discussion with the in-house legal counsel of a Fortune 100 company, he indicated that they have “teams” of people working on it.
CERCLA Hazardous Substances
In our August 1, 2023, blog we shared that the Environmental Protection Agency’s proposed rule to designate certain PFAS chemicals as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) was delayed until February 2024.
The proposed rule received more than 64,000 comments. As we understand, the EPA has yet to respond to the comments.
This is another potentially very consequential rule. Simply from the standpoint of environmental due diligence, the number of sites that will have Recognized Environmental Conditions (RECs) will likely increase substantially.
It is also a fair bet that litigation will increase surrounding the newly designated CERCLA hazardous substances.
Unintended Consequences
Finally, as many industry insiders have been warning about the “one size fits all” approach to limiting PFAS chemicals, a warning has been issued in Europe about banning all PFAS.
In an article by H2 View they write, “The proposed restriction of around 10,000 per- and polyfluoroalkyl substances (PFASs) in Europe would have ‘very serious consequences’ for the whole clean hydrogen and sustainability industry, H2 View has been told.”
They go on to write about a recent joint statement from 15 industrial trade associations, including Hydrogen Europe, stating that the grouping approach to the proposal makes “assumptions and false equivalencies about the hazards and risks of using fluoropolymers and perfluoropolyethers. In using this approach, it risks creating a disproportionate effect that endangers both established and new industries.”
According to the article, certain hydrogen fuel cells use fluoropolymers in various forms.
Hydrogen fuel has gained importance in Europe with the ongoing conflict between Russia and Ukraine. According to the European Commission, “the European Commission aims to reduce European dependence on Russian energy, particularly through clean hydrogen.”
Hopefully, elected and unelected rule makers across the globe are listening to the voices of the regulated community.
If you need assistance with PFAS reporting, assessment, remediation, etc., contact Dragun – we have significant experience in assessment, remediation, and litigation support on PFAS projects. For more information, contact us at info@dragun.com or 248-932-0228.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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