The risks associated with PFAS-containing materials are expanding into new areas, as litigation and regulatory enforcement actions continue to rise. Recent trends suggest that employers who provide fire protection gear to their employees and contractors may find themselves facing potential liabilities.
On October 2023, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register modifying reporting requirements for per- and polyfluoroalkyl substances (PFAS) in the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). (See 88 Fed. Reg. 74,360 (October 31, 2023).) Specifically, EPA proposed that PFAS compounds on the TRI should be classified as “chemicals of special concern.” Such classification would eliminate the availability of the de minimis exemption to TRI reporting (also known as Section 313 reporting) for both manufacturers and suppliers. It would also require the use of a specific reporting form for the listed PFAS substances (a Form A instead of a Form R).
On September 20, 2023, the Consumer Product Safety Commission (CPSC) published a Federal Register Notice to request information on PFAS from “all stakeholders such as consumers, manufacturers and importers, government agencies, non-governmental organizations, and researchers.” Written responses are due by November 20, 2023.
On September 28, 2023, the U.S. Environmental Protection Agency (EPA) finalized the long-awaited one-time reporting rule for per- and polyfluoroalkyl substances (PFAS) that the Agency had proposed in June 2021 under Section 8(a)(7) of the Toxic Substances Control Act (TSCA). The finalization of this rule is one of the regulatory milestones set forth in the Biden EPA’s 2021 PFAS Strategic Roadmap. This rule will require businesses to provide the EPA information regarding their manufacture or importation of subject PFAS, as well as, most importantly, articles including covered PFAS, since January 1, 2011.
On August 17, 2023, the U.S. Environmental Protection Agency (EPA) released preliminary results from the fifth Unregulated Contaminant Monitoring Rule (UCMR) under Section 1445(a)(2) of the Safe Drinking Water Act (SDWA). The UCMR provides a mechanism for the EPA to collect data regarding impacts to public water systems from “emerging contaminants,” for which the SDWA does not otherwise require sampling and mitigation. The purpose of the UCMR is to allow the agency to collect data regarding the scope and magnitude of impacts to potable water supplies that can serve as the basis for science-based decisions regarding future regulations. Notably, the EPA has indicated that it will interpret the data obtained from the fifth UCMR—or UCMR 5, as it is called—with an eye toward environmental justice.
On June 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) for 18 chemicals derived from the recycling of plastic wastes. 88 Fed. Reg. 39804 (2023). The chemicals were the subjects of premanufacture notifications (PMNs) submitted in 2015 and 2019 and of subsequent consent orders issued by the EPA under the authority of TSCA 5(e) and effective on August 25, 2022. The chemicals include naphtha blends and other pyrolysis oils.
In April 2023, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on the designation of seven PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This NPRM followed a proposed rule released in August 2022, which would designate the two most ubiquitous PFAS—PFOA and PFOS—as hazardous substances.
Three notable settlements from June 2023 highlight the immense scale of liability for primary manufacturers of per- and polyfluoroalkyl substances (PFAS).
On April 13, 2023, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on seven potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (See Addressing PFAS in the Environment, 88 Fed. Reg. 22399, Apr. 13, 2023.)
On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act of 2022 (MoCRA) into law. (See Consolidated Appropriations Act, 2023, Pub. L. No: 117-328, § 3501-06.) MoCRA substantially expands the authority of the Food and Drug Administration (FDA) to promulgate new regulations over cosmetics and initiate enforcement against manufacturers and distributors of cosmetic products that present health risks. Most MoCRA provisions, including those dealing with facility registration and product listing, take effect on December 29, 2023, and existing facilities will have to register and comply with its product listing requirements as of this date.
PFAS Observer