Key Takeaways:
- There’s a new EPA reporting requirement that applies to businesses that manufactured, processed or imported products including articles containing forever chemicals, which are especially common in construction materials and consumer goods.
- There are no minimum thresholds, quantities or concentrations.
- Failure to comply might result in civil and criminal penalties.
An Environmental Protection Act rule promulgated late last year requires businesses that manufactured, processed or imported what are known as “forever chemicals” to report certain information about those chemicals by May 8, 2025. Businesses in the construction, manufacturing, wholesale or retail trade, or waste management and remediation sectors are most likely to be impacted by this new, one-time comprehensive reporting requirement.
Failing to comply might result in civil and criminal penalties.
What Are “Forever Chemicals”?
“Forever chemicals” are also known as emerging contaminants, perfluoroalkyl substances, polyfluoroalkyl substances, or PFAS. The subject of the 2019 film “Dark Waters,” they are chemicals that are difficult to break down, often being nearly indestructible under natural conditions, and can exist for thousands of years.
The forever chemicals familiar to most people are the substances responsible for non-stick cookware and food packaging, water- and stain-resistant treatments for fabrics, construction materials, and other products such as a foam that is uniquely effective at fighting fires that involve flammable liquids like oil, alcohol, or gasoline.
Examples of construction products that might contain forever chemicals include fillers, putties, paints, adhesives, caulks, solder, lacquers, stains, strippers, thinners, batteries, materials covering large surface areas such as paper, metal, stone, plaster, cement, glass and ceramic articles, and machinery, appliances, and electronic articles.
By most estimates, the rules cover thousands of compounds.
What Do the New Rules Require?
Pursuant to TSCA 8(a)(7), the EPA on November 1, 2023 promulgated a rule that applies to businesses that—at any time since January 1, 2011—manufactured, processed or imported forever chemicals. Such businesses are required to report a broad range of information, including chemicals’ identity and structure, production, use, byproducts, exposure, disposal, and health and environmental effects back to January 1, 2011. Most businesses have until May 8, 2025 to report this information. Small manufacturers as defined in the rule have until November 10, 2025. There are no de minimis concentration or quantity exemptions.
Using specific EPA electronic reporting tools, businesses to which the EPA’s new rule applies must report the requisite information to the extent that information is known or reasonably ascertainable. “Known to or reasonably ascertainable” means all information that a reasonable person similarly situated might be expected to possess, control, or know. This includes information possessed, controlled, or known by employees and other agents of the company, including those involved in R&D, manufacturing, or marketing. It includes discussions or symposia, and information in technical publications, standard references, safety data sheets, and files. It also includes notices of a manufacturer, supplier or import agent, and information from the Chemical Abstracts Service and from Dun & Bradstreet D-U-N-S.
The Rationale Behind the Rule
The human health and ecological toxicity effects of forever chemicals are still not entirely known but have so far been reported to include immunological, endocrine, reproductive, and cardiovascular effects, as well as cancer.
Because they have been prevalently used for decades, forever chemicals have been detected in the air, and in groundwater, surface water, soil, sediment, household wastes and other biosolids, fish, wildlife, plants and humans. They have been reported to be present in the blood serum of most U.S. residents, remote arctic seawaters, foods including lettuce, cabbage, corn and tomatoes, oysters in the ocean, carpets, toilet paper, cosmetics, drinking water, milk, and rain.
The EPA will use the data it collects as a result of the new reporting requirements to plan how to regulate these pervasive compounds in the future.
Please contact Steve Barnett for further information or compliance support. Steve represents clients in health, safety and environmental matters. He is admitted and practices in three of the leading jurisdictions in the country for environmental law and regulation: California, New Jersey, and New York. Prior to his legal career, Steve practiced as a licensed Professional Engineer and Certified Industrial Hygienist and obtained a Master of Science in Public Health, Industrial Hygiene Emphasis. He also proudly served as Captain, U.S. Air Force, Bioenvironmental Engineer.