The Environmental Protection Agency’s new rule under the Toxic Substances Control Act (TSCA) promises to have significant implications for manufacturers. This legislation primarily expands the number of companies required to disclose information about the per- and polyfluoroalkyl substances (PFAS) they manufacture or import. However, this rule could face significant legal opposition if agency authority is pared down by the Supreme Court next year, as many predict.
The new rule, effective from Nov. 13, obligates all manufacturers, including importers, of PFAS and PFAS-containing products since Jan. 1, 2011, to report extensively on their usage of the products. This includes information on the molecular structure of each PFAS, their health and environmental impacts, the number of people exposed to the chemical, and exposure duration. Companies engaged in the manufacture or importation of PFAS since 2011 have a 18-month window from the enactment of the final rule to comply. Small entities, whose reporting duties solely result from the import of PFAS-containing products, have a 24-month compliance period.
The broad definition of PFAS as per the rule might considerably increase the scope of who is considered a manufacturer or importer. This could lead to a heightened reporting burden. The EPA has identified at least 1,462 PFAS known to have been produced or used in the US since 2011 as falling under this rule’s purview. As there are no exceptions to this reporting obligation—even for PFAS byproducts, impurities, or de minimis quantities—companies previously unaffected by TSCA and specific PFAS-related reporting and record-keeping obligations may now fall under the rule’s scope.
The rule’s look-back period may also introduce complexities, especially since the start of the reporting period predates the regulation of most PFAS. For instance, the EPA began regulating PFAS in 2002, primarily focusing on a few specific compounds, such as perfluorooctane sulfonic acid and perfluorooctanoic acid. This, coupled with the extended breadth of PFAS included under the new rule, necessitates companies to closely scrutinize potentially decade-old documents and other records, to ascertain whether they have a reporting obligation.
The enactment of this new rule comes at a time when the Supreme Court is set to review the Chevron doctrine, with two cases that might lead to the repeal of this directive. The Chevron doctrine extends deference to a federal agency’s understanding of statutes and other administrative actions, so long as the interpretation or action is reasonable. If the Court decides to pull back or discard this directive, a marked surge in challenges to agency actions could be seen, potentially leaving the EPA’s new rule vulnerable.
Compliance with the new rule will test the regulated community, posing financial burdens, and consuming considerable time. Companies need to start the process cautiously and promptly, to accurately understand the full extent of the reporting duty.
Authors: David Edelstein and Charles Dennen are partners in the environmental law group with Archer & Greiner in New Jersey.