Chemical control laws and regulations are increasingly targeting chemicals in articles.  As a result, retailers and suppliers need to understand how these laws and regulations impact their operations, as a lack of awareness could lead to business disruption, costly penalties for non-compliance, and negative publicity.  A recently proposed rule under the U.S. Toxic Substances Control Act (TSCA) serves as an illustrative example.

This article summarizes the proposed rule.  It also addresses the opportunity for public comment.  Finally, it identifies certain existing TSCA requirements that impact the retail community.

Summary of proposed PFAS reporting rule

On June 28, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) proposed reporting and recordkeeping requirements for Per and Polyfluoroalkyl Substances (PFAS).  More specifically, the EPA proposed requirements under TSCA Section 8(a)(7) for PFAS manufactured in any year since January 1, 2011.  The Agency has stated that it proposed this action in order to fulfill statutory obligations under TSCA and to obtain certain information known to or reasonably ascertainable by manufacturers of PFAS.  TSCA Section 8(a)(7) requires EPA to publish a final rule no later than January 1, 2023.

If finalized as proposed, this rule would impact the retail community for two primary reasons.  First, the term “manufacture” is defined under TSCA to include import.  Second, for purposes of the proposed rule, articles containing PFAS, including imported articles, are included in the scope of reportable chemical substances.  This would potentially encompass a wide range of consumer products, including cleaners, paints, carpets, clothing, sporting goods, furniture, electronics, and household appliances.

EPA has proposed that companies that have manufactured or imported any PFAS at any time since January 1, 2011 would report during a six-month submission period which would begin six months following the effective date of the final rule.  Therefore, companies would ultimately have one year following the effective date of the final rule to collect and submit all required information to the Agency.

The proposed rule applies to all substances and mixtures that are PFAS, as defined within the rule; and, the rule defines PFAS as follows.  PFAS means any chemical substance or mixture that structurally contains the unit R-(CF2)-C(F)(R′)R″, where both the CF2 and CF moieties are saturated carbons.  Furthermore, none of the R groups (R, R′ or R″) can be hydrogen.  This definition includes, but is not limited to, more than 1,300 PFAS listed or otherwise described in the rule.

The proposed rule would require all manufacturers (including importers) of PFAS in any year since 2011 to report information related to chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal.  It would also require companies subject to the reporting requirements to retain records that document any information reported to EPA for a period of five years beginning on the last day of the submission period.

With certain exceptions, the proposed rule would allow companies to assert confidentiality claims for information submitted under the rule.  But, most such claims would require substantiation at the time of submission.  Finally, all information would have to be submitted electronically using a reporting tool within the Agency’s Central Data Exchange.

Opportunity for public comment

Companies potentially impacted by this proposed rule may choose to submit comments on the rule, either directly or through their trade associations.  EPA has specifically requested comments on whether imported articles containing PFAS should be within the scope of the rule.  Comments must be received on or before September 27, 2021.

Existing TSCA requirements that impact the retail community

While the proposed rule discussed above has yet to be finalized, the retail community is already subject to a number of TSCA requirements that restrict or otherwise regulate chemicals in formulated products and articles.  Among these are final rules under TSCA Section 6 to regulate five persistent, bioaccumulative, and toxic (PBT) chemical substances and Significant New Use Rules (SNURs) under TSCA Section 5 covering thousands of substances.  Interestingly, many of the substances subject to SNURs are PFAS which would also be subject to reporting under the proposed PFAS reporting rule.