EPA Issues New Regulation to Prevent Inactive PFAS from Reentering Commerce

by | Jan 16, 2024 | Environmental Law

On January 8, 2024, The U.S. Environmental Protection Agency (EPA) announced a significant step in environmental protection with the finalization of a rule preventing the manufacture or processing of 329 per- and poly-fluoroalkyl substances (PFAS) known as “inactive PFAS.” This rule, effective immediately, prohibits companies from resuming the use of these chemicals without a comprehensive EPA review and risk determination. The new rule is designed to ensure that any resurgence of these chemicals undergoes a comprehensive evaluation before being reintroduced into commerce, addressing the impact of PFAS, commonly referred to as “forever chemicals.”

Under the 2016 amendments to the Toxic Substances Control Act (TSCA), as part of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the U.S. Environmental Protection Agency (EPA) is mandated to conduct formal safety reviews for all new chemicals before permitting their introduction into commerce. This includes the implementation of a Significant New Use Rule (SNUR) for per- and poly-fluoroalkyl substances (PFAS) that have been inactive for an extended period. The EPA, in alignment with the Active-Inactive rule, designates chemicals on the TSCA Inventory as either “active” or “inactive” based on their manufacturing or processing status in the United States since June 21, 2006.

The finalized rule specifically targets PFAS marked as “inactive” on the TSCA Inventory, not already subject to a SNUR. Companies intending to use any of these 329 chemicals must notify the EPA beforehand. Subsequently, the EPA is obligated to conduct a comprehensive review of health and safety information under the updated 2016 law. This thorough evaluation aims to determine whether the proposed new use poses an unreasonable risk to human health or the environment. If necessary, the EPA will implement restrictions before allowing the restart of the chemical’s usage.

All new applications of PFAS fall under the EPA’s framework for evaluating both new PFAS and their uses, introduced in June 2023. The regulation stems from the Toxic Substances Control Act (TSCA), which, after amendments in 2016, mandates formal safety reviews for all new chemicals before entering commerce. This new significant new use rule (SNUR) requires the EPA to conduct thorough evaluations before allowing the reactivation of any of the identified inactive PFAS.

To comply with the rule, companies must notify the EPA before using any of these 329 chemicals, triggering a comprehensive review of potential risks to human health and the environment. This move will lead to the public disclosure of these substances in the TSCA Inventory. The EPA’s broader efforts include proposed rules to ban asbestos, trichloroethylene, and most uses of methylene chloride, as well as ongoing evaluations of various chemicals and a comprehensive framework for addressing new PFAS and their uses.

How Can Businesses Avoid Costly Compliance Problems Associated with Environmental Issues?

Sound legal guidance is critical. Additionally, a proactive approach is essential for maintaining regulatory compliance. Our attorneys take an experienced, detail-oriented and collaborative approach to analyzing clients’ objectives and identifying potential issues to address them before they escalate into costly missteps.

What Agencies Are Responsible for Environmental Regulatory Compliance?

Depending on the subject matter, a multitude of state and federal agencies may come into play. They include the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Department of Agriculture,  California Environmental Protection Agency,  California Department of Toxic Substances Control, California Water Quality Control Board, California Air Resources Board, and California Coastal Commission, to name just a few.

What Are the Biggest Challenges for Businesses Navigating Environmental Issues?

Environmental law is highly complex because it involves an intricate array of federal, state, and local legislation along with scientific and engineering concepts that require input from leading experts. Navigating those regulations and technical issues can be an ongoing challenge. Another major hurdle is defending against alleged violations, which may escalate to high-stakes litigation involving many potentially responsible parties. Our attorneys are well-equipped to represent clients in both regulatory and enforcement matters.

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