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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Since the U.S. Environmental Protection Agency (EPA) added per- and polyfluoroalkyl substances (PFAS) as a top priority for compliance and enforcement, EPA has released two new PFAS rules with another coming shortly.

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EPA’s National Enforcement and Compliance Initiatives

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On August 17, 2023, EPA’s Office of Enforcement and Compliance Assurance (OECA) <a href="https://www.epa.gov/enforcement/national-enforcement-and-compliance-initiatives">announced</a> its top enforcement and compliance priorities for the next three years. In addition to continuing two past initiatives (for drinking water and chemical accident risk reduction) and modifying another (for reducing air toxics in overburdened communities), EPA added coal ash contamination, mitigating climate change and addressing exposure to PFAS as new priorities. Accordingly, companies should expect additional PFAS investigations and enforcement.

The New Toxics Release Inventory (TRI) PFAS Reporting Rule

On October 18, 2023, EPA <a href="https://www.epa.gov/toxics-release-inventory-tri-program/changes-tri-reporting-requirements-and-polyfluoroalkyl#rule-summary">released</a> a pre-publication version of the final rule increasing the PFAS reporting requirements for TRI and EPCRA compliance. Although PFAS were subject to reporting for several years, the new TRI Rule eliminates the de minimis exemption for reporting on Chemicals of Special Concern, which now include PFAS alongside other persistent, bioaccumulative and toxic (PBT) chemicals like dioxin, lead and mercury. Thus, past use of the simplified Form A reporting may give way to more rigorous reporting beginning with reporting year 2024.

The New Toxic Substances Control Act (TSCA) PFAS Reporting Rule

On October 11, 2023, EPA finalized its <a href="https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-8a7-reporting-and-recordkeeping">new rule</a> for PFAS recordkeeping and reporting under TSCA. Among other new requirements, manufacturers and importers must submit information to EPA regarding PFAS use and effects. Notably, the new rule includes a 12-year lookback period — requiring information from both current manufacturers and importers and those who were active at any time since January 1, 2011. Coincidental generation of PFAS as a byproduct or impurity qualifies for reporting under the rule, as does PFAS present as a component of a mixture. However, businesses who have processed, distributed in commerce, used or disposed of PFAS are not required to report unless they qualify as manufacturers independently. Manufacturers must report information to the extent it is known or reasonably ascertainable. As a practical matter, this will require a reasonable inquiry across the entire organization.

The Impending Safe Drinking Water Act (SDA) PFAS Rule &nbsp;

EPA also <a href="https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas">proposed</a> to issue a final SDA rule for PFAS by December 2023. The proposed rule suggested a maximum contaminant level (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) at 4 ppt — yes, that’s four parts per trillion — in addition to now regulating other PFAS using a “hazard index” methodology. Recall, safe drinking water is still a national enforcement priority, too.

For more information about regulatory developments surrounding PFAS at the federal and state level, please contact Kurt Kissling, Paul Beach or your Warner attorney.

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Warner Legal Consultant C.J. Biggs contributed to this eAlert.

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Paul H. Beach

Kurt A. Kissling

Resources, Energy and Environmental Law

Federal Updates to PFAS Enforcement, Reporting and Regulation

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Federal Updates to PFAS Enforcement, Reporting and Regulation

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