On September 28, 2023, the Environmental Protection Agency (“EPA”) released its final Toxic Substances Control Act (“TSCA”) rule containing new reporting and recordkeeping requirements for the manufacture and sale of certain plastics known as PFAS. Section 7351 of the 2020 National Defense Authorization Act required the EPA to issue a TSCA rule requiring any person who has manufactured perfluoroalkyl or polyfluoroalkyl substances (“PFAS”) in any year since January 1, 2011, to report and maintain records regarding their use of PFAS. The EPA’s rule reaches not only manufacturers of PFAS themselves, but also manufacturers of goods that contain PFAS.
According to the Centers for Disease Control, PFAS are a group of chemicals used to make coatings and products that resist heat, oil, stains, grease, and water. Per- and Polyfluorinated Substances (PFAS) Factsheet | National Biomonitoring Program | CDC. Also known as "forever chemicals," PFAS are a concern because they do not break down in the environment and have caused widespread contamination of the environment. In animal studies, PFAS negatively affect growth and development, reproduction, thyroid function, immune system responses, and liver injury. An NHANES study found four PFAS in the blood samples of nearly all the people participating. According to a notice given by the Consumer Product Safety Commission on September 20, 2023, PFAS are used in many common goods, including "non-stick cookware; water-repellent and stain-resistant clothing, carpets and other fabrics; some cosmetics; some firefighting foams; and common home products such as cleaning supplies, waxes, coatings, adhesives, paints, and sealants." Federal Register :: Per- and Polyfluoroalkyl Substances (PFAS) in Consumer Products. Due to serious concerns about PFAS in drinking water, the EPA has also recently released new standards that limit certain PFAS in drinking water to the extremely low level of 4 parts per trillion. Per- and Polyfluoroalkyl Substances (PFAS) | US EPA.
The EPA’s proposed rule will require companies to report extensive information about PFAS in their merchandise. Companies would be required to provide information relating to “chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal." 2022-25583.pdf (govinfo.gov). Companies would have 18 months to report this information if they have any amount of an estimated 1,462 chemical substances in the PFAS group.
Critics consider the burden of the rule to be high, especially considering how the time and cost of compiling information spanning more than a decade will affect small businesses. The EPA estimates the burden on small businesses to be $875 million and asserts that this will not have a significant impact on small entities. Id. Nevertheless, the proposed rule addresses this criticism by allowing companies to report “not known or not reasonably ascertainable” if the circumstances are such that the burden is too high. Whether the burden imposed by the EPA is reasonable may be the subject of litigation in the coming months.
Additionally, the EPA’s authority to issue such a regulation may be affected by the Supreme Court’s upcoming review of Chevron's deference in January 2024. Overturning Chevron would reign in the regulatory power of governmental agencies. The EPA’s proposed rule regarding PFAS reporting is currently open for public comment.