Yesterday, the Environmental Protection Agency (EPA) took three new actions related to PFAS, each of them significant to companies in the United States. The new EPA PFAS announcements included:

1.  issuing a proposed rule that will gather comprehensive data on more than 1,000 PFAS compounds that are manufactured or imported into the United States;

2. withdrawing guidance that weakened EPA’s July 2020 Significant New Use Rule (SNUR) restricting certain long-chain PFAS; and

3. publishing a final rule that officially incorporates three additional PFAS into the Toxics Release Inventory (TRI).

The details of each are provided below; however, for any company that manufactures, imports, or utilizes PFAS in manufacturing, it is critical to pay attention to these developments.

Proposed Rule To Require Reporting On PFAS

The EPA’s proposed rule on data collection with respect to various PFAS now broadens the scope of the number of PFAS that the EPA is actively collecting data on to over 1,000 PFAS. While there are over 7,000 PFAS in existence today and the EPA is not collecting data on many of them, the proposed rule put forth yesterday is significant because the EPA is taking the first step in studying an large number of PFAS by placing the onus of reporting on companies. Traditionally, this is the first step that the EPA takes when looking to make a determination as to whether a chemical should be regulated or poses a risk to human health.

The proposed rule, which is a statutory requirement under the FY2020 National Defense Authorization Act (NDAA), would require all manufacturers (including importers) of PFAS in any year since 2011 to report information related to chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal.

The EPA stated “the proposed rule would help EPA better understand the sources and quantities of PFAS manufactured in the United States and support the agency’s PFAS research, monitoring, and regulatory efforts. Once finalized, this rule would be the first targeted effort under the Toxic Substances Control Act (TSCA) to collect information on the manufacture of PFAS and would provide EPA with the most comprehensive dataset of PFAS manufactured in the United States.”

The proposed deadline for reporting PFAS data to EPA is one year following the effective date of the final rule.

The EPA is accepting public comment on the proposed rule for 60 days following its publication in the Federal Register (docket number EPA-HQ-OPPT-2020-0549).

Withdrawing Compliance Guide on PFAS SNUR

In accordance with the Biden-Harris Administration’s Executive Orders and other directives, including those on environmental justice, scientific integrity, and regulatory review, the EPA has withdrawn a compliance guide that weakened the July 2020 Significant New Use Rule (SNUR) which, among other things, prohibits companies from importing certain long-chain PFAS as part of a “surface coating” on articles without prior EPA review and approval. Examples of articles that could contain these PFAS as part of a surface coating include automotive parts, carpet, furniture, and electronic components.

The compliance guide was issued in January 2021 in the last days of the previous Administration and limited what would be considered a “surface coating” subject to the SNUR. The EPA stated that “the guide was never deemed necessary by career staff and its development was directed by elected officials serving in the last Administration. Additionally, the guide was finalized without considering or addressing comments submitted by the public. After further review, EPA determined that the guide inappropriately narrowed the scope and weakened the prohibitions included in the SNUR.”

The EPA’s July 2020 SNUR continues to be in effect. Articles containing certain long-chain PFAS as a surface coating cannot be imported into the United States without EPA review. Importers of articles, but not processors of articles, are subject to the SNUR. Although the SNUR did not include a regulatory definition of “surface coating,” the rule provides information on the intended meaning of the phrase. The EPA provided additional information regarding its SNUR requirements factoring in the above changes at its website.

NDAA Requirements For TRI Reporting of PFAS

The final action taken by the EPA yesterday with respect to PFAS was the addition of three PFAS to the EPA’s Toxic Release Inventory (TRI). The NDAA provides a framework for additional PFAS to be added to TRI on an annual basis. The EPA added three additional PFAS to the TRI because they are now subject to a SNUR under TSCA.