PFAS Observer
House Republicans have introduced a joint resolution under the Congressional Review Act (CRA) to nullify a rule issued by the Environmental Protection Agency (EPA) late in the prior administration. The rule narrowed the availability of expedited review pathways for certain new chemical substances—including per- and polyfluoroalkyl substances (PFAS)—under the Toxic Substances Control Act (TSCA). The resolution, H.J.Res.76, introduced by Reps. Clay Higgins (R-LA) and William Timmons (R-SC), seeks to nullify EPA’s December 2024 rulemaking, Updates to New Chemicals Regulations Under the Toxic Substances Control Act (89 Fed. Reg. 102773).
The Targeted Rule: Revised Exemption Eligibility Under TSCA
Published in the Federal Register on December 18, 2024, the late Biden-era EPA rule implemented sweeping amendments to the agency’s procedures for reviewing new chemical substances under TSCA. Among the most notable changes was a categorical exclusion of PFAS from eligibility for low volume exemptions (LVEs) and low release and exposure exemptions (LoREXs). These exemptions—codified at 40 C.F.R. § 723.50—permit certain new chemicals to bypass full premanufacture notice (PMN) review if manufactured in limited quantities (under LVEs) or under conditions that minimize potential exposures and releases (under LoREXs). Historically, these notices were subject to a 30-day review period. By removing PFAS from these streamlined pathways, the rule now requires all new PFAS to undergo the full PMN process, with a default 90-day review period.
EPA’s decision to bar PFAS from exemption eligibility was based on what the agency described as both “scientific complexities or uncertainties” and administrative limitations. Specifically, EPA cited the challenges associated with evaluating PFAS chemistry, their environmental persistence and bioaccumulation potential, and the difficulties in assessing exposure and risk within the compressed timeframe afforded by the exemption process. EPA concluded that PFAS are “unlikely to be eligible” for LVE or LoREX review and must instead be reviewed through the full PMN framework.
In addition to the PFAS provisions, the rule codified EPA’s longstanding policy of denying LVEs and LoREXs for persistent, bioaccumulative, and toxic (PBT) substances where environmental release or human exposure is anticipated. These changes extend the 90-day PMN review requirement to non-PFAS PBT substances previously assessed on a case-by-case basis under internal EPA guidance.
The final rule also implemented broader procedural reforms to the Section 5 review process, aligning regulatory practice with the 2016 Lautenberg Amendments to TSCA. These changes include codification of EPA’s pre-screening procedures, authority to restart the 90-day review period when submitters provide late information that was reasonably ascertainable at the time of filing, and a formal requirement that manufacture or processing may not begin until EPA issues an affirmative risk determination. The rule also expanded the scope of information required in new chemical notices, mandating more detailed and structured data on chemical identity, physical and chemical properties, uses, exposures, and environmental fate.
Congressional Review Act Resolutions
The CRA, enacted in 1996 but rarely used until 2017, provides Congress with an expedited mechanism to nullify federal regulations. Once a final rule is formally submitted to both houses of Congress and the Government Accountability Office, lawmakers have 60 legislative days in the House or 60 session days in the Senate to introduce and pass a joint resolution of disapproval. If a rule is submitted near the end of a congressional session—specifically, within 60 days before Congress formally adjourns for the year—the CRA resets the clock, giving the next Congress a full 60-day window to act. If both chambers pass the resolution and it is signed by the President, the rule is nullified and treated as though it had never taken effect. The agency is also barred from issuing any “substantially similar” rule in the future unless Congress enacts new authorizing legislation, though that phrase is undefined in the CRA.
Accordingly, if enacted, H.J.Res.76 would rescind EPA’s final TSCA rule in full and prohibit the agency from issuing a substantially similar regulation without further congressional approval.
Supporters of the resolution argue the rule unfairly burdens U.S. manufacturers—particularly those in the semiconductor and specialty materials sectors—with extended review timelines and increased data-reporting obligations. Notably, Rep. Higgins represents a district home to numerous petrochemical facilities, and the resolution reflects broader Republican criticism of the Biden administration’s environmental agenda
Critics, however, contend the rule’s PFAS-specific provisions are long overdue. The LVE “loophole” had allowed over 600 PFAS to enter commerce between 1985 and 2020 with limited oversight. EPA’s recent reviews found PFAS under exemption notices routinely posed PBT concerns that could not be adequately assessed within the existing 30-day timeframe.
Policy Implications and Industry Response
Supporters of the resolution argue that the rule imposes disproportionate burdens on U.S. manufacturers—particularly those in the semiconductor and specialty materials sectors—by extending review timelines and expanding data reporting requirements. They contend that the revisions create new procedural hurdles under TSCA that slow innovation and disadvantage domestic producers.
Critics, by contrast, view the rule’s PFAS-specific provisions as both necessary and overdue. They point to EPA’s longstanding challenges in assessing PFAS under the exemption framework, noting that more than 600 PFAS entered commerce between 1985 and 2020 through the low volume exemption pathway—often without meaningful review. According to EPA, recent case-by-case assessments found that PFAS submitted under LVE notices routinely presented PBT characteristics that could not be adequately evaluated within the 30-day exemption period.
Looking Ahead
H.J.Res.76 has been referred to the House Committee on Energy and Commerce and may be considered in the coming weeks. If enacted, the resolution would permit manufacturers to again seek low volume and low release and exposure exemptions for PFAS and PBT substances—assuming EPA does not otherwise rescind or stay the rule through administrative means. It would also reinstate prior regulatory language allowing manufacture to commence upon expiration of the review period, irrespective of whether EPA has issued a formal risk determination.
The resolution’s outcome may influence compliance planning across the chemical value chain, particularly for companies managing new product development under TSCA Section 5. Pillsbury attorneys will continue to monitor congressional activity under the CRA and advise on developments affecting chemical regulatory strategy and product stewardship obligations.
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