EPA looks to consider new PFAS regulations

Kulpsville, PA – Herb Estreicher, who spoke at a Lunch & Learn event the MidAtlantic Rubber and Plastics Group this year, shared the following information on PFAS regulations:

EPA has published for comment its Initial Regulatory Flexibility Analysis (IRFA) and updated economic analysis of its proposed TSCA reporting rule for PFAS substances following the completion of a Small Business Advocacy Review (SBAR) Panel. EPA’s estimate of total social costs has increased from $10.8 million to almost a $1 billion ($875 million), the vast majority of which would be borne by small businesses ($863 million).

The economic analysis signals that EPA is at least considering a number of rule modifications suggested by commenters if economically justifiable (cost / benefit), including:

A 2,500 lbs or 25,000 lbs de minimis reporting threshold

Small business exemption ($12 million or $6 million in revenue thresholds)

Small article importer exemption (less than $6 million in revenue)

Limiting reporting to finite list of PFAS

Establishing reporting volume thresholds

Simplified reporting forms for certain entities (i.e., article importers and R&D importers)

Typical TSCA Reporting exemptions for R&D substances, byproducts, impurities, recyclers, and intermediates

Potentially duplicative or overlapping reporting requirements with this proposed rule.

At this time, EPA is seeking comment on the economic impact of such exemptions.

The agency also seeks comment on a proposed change to the CBI provisions of the proposed rule. 

Where an entity attests that it does not have knowledge of the specific chemical identity of a PFAS chemical, it will be required to initiate a joint submission with its supplier or other manufacturer. In these cases, the secondary submitter would be responsible for providing the specific chemical identity and for asserting and substantiating any CBI claims concerning the specific chemical identity.

All generic names used to identify CBI PFAS chemical identities will be required to include “fluor” (whether newly asserted or used in the past)

It appears EPA has determined that it in fact does have discretion under the statute to include a number of typical exemptions and to tailor the rule more to its needs. That is significant. But to get any of these exemptions, commenters are going to have to estimate benefits.