Regulation of per- and polyfluoroalkyl substances (PFAS) continues to rapidly develop. Further, these rules and regulations are affecting a wide range of companies.
As of September 28, 2023, the rule proposed on June 28, 2021 (Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances) is a final rule.
For additional background, see the US Environmental Protection Agency’s PFAS Strategic Roadmap.
This final rule is by definition, significant. As stated in the pre-publication notice, “This action is a ‘significant regulatory action’ as defined under section 3(f)(1) of Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023).”
PFAS Rule Affects Small Businesses
The rule affects manufacturers of PFAS chemicals as well as manufacturers and product importers of articles containing PFAS (e.g., clothing, cookware, etc…).
EPA estimates that approximately 97% of all firms potentially affected by this rule would meet the SBA standard of small business, for a total of 128,051 affected small entities.
The EPA states that the potentially-affected industries include the following North American Industrial Classification System (NAICS) code categories:
- Construction (NAICS code 23);
- Manufacturing (NAICS code 31 through 33);
- Wholesale trade (NAICS code 42);
- Retail trade (NAICS code 44 through 45); and
- Waste management and remediation services (NAICS code 562).
The EPA’s new PFAS rule under TSCA is by definition a significant regulatory action (Image Credit: Gerd-Altmann-from-Pixabay.jpg)
What is Reported?
According to a blog by Butzel, “The rule sets forth extensive reporting and recordkeeping requirements for entities that currently or previously manufactured or imported PFAS ‘between January 1, 2011, and the effective date of the final rule.’ Manufacturers of PFAS will have to report for each year PFAS was manufactured, information regarding PFAS identity, production volumes, industrial uses, commercial and consumer uses, byproducts, worker exposure, disposal, and any existing information related to environmental and health effects.”
Further, § 705.15 in the pre-publication notice provides a list of information that must be reported, which is significant. In addition to what is listed above, it includes company information, chemical-specific information and the common name of the chemical, the physical form of the PFAS as it was sent off-site, concentrations of PFAS, analytical data…and much more. The list is extensive.
Also, see “Key Takeaways from EPA’s PFAS Reporting Rule” from Covington.
Definition of PFAS Different from Other Regulations
Complicating this new rule is the way the EPA defines PFAS. As stated in the pre-publication notice, PFAS means, for the purpose of this part, any chemical substance or mixture containing a chemical substance that structurally contains at least one of the following three sub-structures:
(1) R-(CF2)-CF(R’)R’’, where both the CF2 and CF moieties are saturated carbons
(2) R-CF2OCF2-R’, where R and R’ can either be F, O, or saturated carbons
(3) CF3C(CF3)R’R’’, where R’ and R” can either be F or saturated carbons.
Source: Pre-publication Notice
Needless to say, this adds a layer of confusion and complexity to the new rule, particularly since this definition is different than the PFAS definition under other regulations.
Reporting under this part is not required for the “import of municipal solid waste streams for the purpose of disposal or destruction of the waste.”
For more information on PFAS, see our PFAS Resource Page.
This is very brief overview of this significant rule. We will continue to monitor the development of this and what is a growing list of environmental regulations.
In the meantime, if you need assistance with this or other environmental regulatory issues, please 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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