The Environmental Protection Agency on February 2 announced the formation of a Small Business Advocacy Review Panel to offer feedback on a forthcoming rule that will require regulated entities to disclose detailed information on per- and polyfluoroalkyl substance usage since 2011. EPA is forming the panel partly in response to public comments expressing concern with the capability of smaller entities to comply with the proposed rule, which is set to be finalized on or before January 1, 2023. If promulgated without significant revision, the draft rule could create heavy burdens for regulated entities.

Unlike similar chemical reporting requirements found elsewhere in the Toxic Substances Control Act (TSCA),[1] a draft version of the per- and polyfluoroalkyl substances (PFAS) reporting rule[2] that EPA released for public comment in June 2021—discussed in our LawFlash, Environmental Protection Agency Announces Three New Actions on PFAS—does not exempt small businesses or de minimis PFAS “producers” (defined to include manufacturers and importers).

IMPACT ON REGULATED ENTITIES

If finalized in its current form, the draft rule could create heavy burdens for regulated entities in several key respects:

• While similar chemical reporting requirements under TSCA are limited to the chemical products themselves, the PFAS reporting rule would apply to “articles” containing PFAS chemicals as well. Thus, it is not just the original chemical manufacturer that is required to report under the draft rule, but also downstream producers who use those chemicals to create other products or who import such products.
• The rule incorporates a broad definition of “PFAS” that includes at least 1,346 known chemical structures, and possibly more. Taken together with the fact that many PFAS chemicals have properties that make them useful in consumer goods and other applications (e.g., durability, moisture repellency, heat resistance), it is common to find “PFAS” (as defined in the proposed rule) in a vast range of products.
• The rule requires that regulated entities disclose a substantial amount of information for each PFAS chemical used since January 2011. Reports must include not only the identities of PFAS chemicals and amounts used, but also by-products resulting from manufacturing, use, or disposal; potential environmental and health effects of each substance; the manner of disposal; and the number of individuals potentially exposed, as well as the duration of such exposure. Where this information is not readily available, regulated entities are expected to conduct an investigation to find it, provide estimates, and/or document efforts to obtain it.

Taken as a whole, the draft regulations impose significant reporting obligations on a very large pool of businesses that manufactured or imported a wide variety of articles since 2011. These obligations could be particularly taxing on small businesses and others that may not have in-house environmental expertise.

EPA OPEN TO EASING COMPLIANCE BURDENS ON SMALLER ENTITIES

At the time it published the draft rule for public comment, EPA noted that while it cannot exempt smaller manufacturers and importers of PFAS or PFAS-containing products from the reporting rule entirely, it could consider ways to ease their compliance burdens.

The formation of the Small Business Advocacy Review Panel (SBAR Panel) is a step in that direction, and an opportunity for those entities to address some of the more impactful components of the draft rule. The panel will be composed of Small Entity Representatives (SERS) (which may include delegates from small businesses, small governments, nonprofit organizations, and trade associations) and federal government representatives from the Small Business Administration, the Office of Management and Budget, and EPA.[3]

TAKEAWAYS

Just how far the SBAR Panel’s input will go toward modifying the PFAS reporting rule is an open question. The Biden-Harris administration is focused heavily on PFAS, and the desire to regulate PFAS is a rare area of bipartisan agreement in Congress.

Collecting data on historical uses of PFAS is a key component of EPA’s broader PFAS strategy, outlined in the “PFAS Strategic Roadmap” published in October 2021. Because the concerns of small businesses and others that will be impacted by the forthcoming reporting rule will need to be balanced against a top priority of the government, potentially regulated entities would be well advised to begin planning a compliance strategy as early as possible.

[1] TSCA § 8(a)(1).

[2] “Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl or Polyfluoroalkyl Substances Under TSCA Section 8(a)(7).”

[3] EPA is accepting self-nominations for SERs to serve on the SBAR Panel through February 16, 2022.

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