Tracy Heinzman, Wiley-Rein LLP
Martha Marrapese, Wiley-Rein LLP
This month will see two significant regulations by the Environmental Protection Agency (EPA) published in the Federal Register to tighten controls on long chain perfluoroalkyl and polyfluoroalkyl substances (PFAS). These rules affect the ability of companies to continue to make or use certain long chain PFAS and will require facilities to report the on-site presence of 172 of these chemicals at 100 pounds or more to EPA beginning next year. By reading this blog, you can make sure you are not caught off-guard by the new rules.
PFAS refers to the family of man-made, perfluoroalkyl and polyfluoroalkyl substances. The media refers to them as “forever chemicals” due to the longevity that long chain PFAS exhibit in the environment and the human body (persistence and bioaccumulation), as due to the strong carbon-fluorine bonds they contain. Two of the most studied long chain PFAS chemicals are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).
In a major push to restrict the ability to make or use these chemicals, EPA is issuing a final significant new use rule (SNUR) to ban new or discontinued uses of certain long chain PFAS chemicals listed on the Toxic Substances Control Act (TSCA) Inventory. When the TSCA SNUR is published, the requirements will go into effect 60 days from that date. That means the rule will go into effect around September, just as ski season is starting to gear up. Once this SNUR goes into effect, the manufacture or import of the covered chemicals is banned unless EPA approves the use in advance.
Ski wax is regulated by EPA under TSCA, but it’s not crystal clear from our reading of the rule whether any ski waxes on the market today contain the PFAS chemicals that EPA is regulating with these rules. When EPA first published this rule in 2015, at least one ski wax company submitted a comment on PFAS chemicals they were using at the time. EPA’s final rule does not mention or exempt ski wax or the ski industry specifically. However, the agency has been investigating the use of PFAS chemicals in ski wax and ski wax is used as an example of a potentially affected product in the press release announcement for the rule.
This TSCA rule applies to two lists of long chain PFAS chemicals (26 specific chemicals, including PFOA) that are identified by Chemical Abstracts Service Registry Number (CASRN) and chemical name. All PFOA salts are regulated by the rule, as are a number of other long chain PFAS chemicals that meet a specific chemical definition. This definition is extremely broad. It folds in most chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons and less than or equal to 20 carbons, including their salts and precursor chemicals. It’s the responsibility of manufacturers and importers to make these complex determinations.
The bottom line on whether companies can continue to make or import a wax this season will depend on whether it contains a regulated PFAS chemical. In addition to hard and spray wax, companies that make or import skis and snowboards that have a factory wax applied to them are subject to this rule. Other ski industry products also might be affected, such as powders, ski skin products, water-repellant clothing and outdoor equipment coated with a regulated PFAS chemical. Sporting goods stores might be affected, but only if they import wax. Ski wax that has a regulated long chain PFAS chemical in it can be sold if it was imported before the rule goes into effect. A ski shop is not prohibited by the rule from selling products they might still have on hand that have these chemicals in them.
The other significant action EPA is taking will require companies to closely monitor 172 long chain PFAS chemicals and submit Toxic Release Inventory (TRI) reports. Per 40 C.F.R. § 372.5, the “owners and operators” of a facility that manufactures (including imports), process, or otherwise use listed toxic chemicals listed in excess of an applicable threshold quantity are responsible for completing TRI reporting. In the case of these PFAS chemicals, there reporting threshold is only 100 pounds total on-site, which includes distribution warehouses. Beginning this year, companies need to keep track of the information needed to file their reports which will be due for the first time next year on July 1, 2021.
Companies can see if a product contains a covered PFAS chemical by gathering information through agreements with suppliers, declarations through databases or surveys, or use of a third-party certification system. Importers may ask their suppliers for certificates of testing analysis of the products or perform their own laboratory testing. Think about taking these steps, because EPA enforces TSCA SNURs. After the rule goes into effect, importing just 250 pounds of one of these regulated PFAS chemicals 9 times could result in a penalty of $45,000.
For more information on PFAS, check out our recent webinar that was featured in a June 22 Inside TSCA article. The Wiley program – “Legal and Business Considerations Every Company Should Know About PFAS Under TSCA and Beyond” – addressed the legal and business considerations that companies should be aware of regarding PFAS. Topics covered during the webinar included auditing company operations for PFAS risks and liabilities.
To listen to the Wiley webinar, click here.