Part of the federal government’s efforts to combat the impacts of PFAS is the collection of information having to do with the manufacture and processing of these “forever chemicals.” Using a law called the Toxic Substances Control Act (TSCA), EPA requires chemical manufacturers to send in certain information about what PFAS they use and how they use it.
TSCA is intended to provide EPA with the information to make smart decisions about how chemicals are used in our economy. In 2020, Congress passed a law amending TSCA that required EPA to collect certain information about PFAS from chemical manufacturers. The law reads: “Not later than January 1, 2023, the [EPA] Administrator shall [publish] a rule … requiring each person who has manufactured a chemical substance that is a [PFAS] in any year since January 1, 2011, to submit to the Administrator a report.”
As part of their information collection efforts under TSCA, EPA usually requires a report from both (1) anyone who manufacturers certain chemicals domestically or (2) anyone who imports those same chemicals internationally. The idea is that whoever is responsible for the chemical’s presence in our environment should be responsible for developing the information required by EPA.
Fortunately for contractors, EPA has recognized that this framework is inappropriate for PFAS. We have learned over the years that many commercial products, including construction materials, contain trace amounts of PFAS. It would be impossible for the importers of articles and materials to know if their products contain PFAS and if so, how to identify and report them to EPA.
In their latest proposal, EPA is exempting imported articles from reporting requirements under TSCA. In doing so, EPA recognized that not only would the information be extremely difficult and costly to obtain, but also that the information would be of little utility to EPA. The manufacturers of the products that contain PFAS are already required to report on how they use them, so it would be unreasonable and duplicative to require the end-user of a product to make that same report.
To show our support for the proposed exemptions, AGC submitted comments to EPA focusing on legal support for EPA’s new position. In addition, we encouraged EPA to explore the pre-emption of state reporting requirements on PFAS.
For more information, please contact Spencer Phillips.