Provisions Embedded in NDAA Could Have Implications for PFAS Manufacturers and Users—and They Are Already Effective

On December 20, 2019, the National Defense Authorization Act of Fiscal Year 2020 (S. 1790) became law.¹ The final version of the legislation imposes new annual reporting requirements on the makers, and even the users, of as many as 160 chemical substances within the family of chemicals considered per- and polyfluoroalkyl substances (PFAS). Before being enacted, the massive bill, which was more than 1,100 pages long, was the subject of much partisan debate within the US House and Senate. The legislation went through a myriad of amendments, including additions and deletions of the various PFAS-related provisions. Some of the more controversial PFAS-related provisions ultimately were deleted from the final bill, including provisions requiring PFAS to be designated as a hazardous substance pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and requirements promulgating PFAS drinking water standards. Nevertheless, a significant number of the PFAS requirements made it into the final bill and became law in late December 2019. A handful of these PFAS-related provisions involve only the Department of Defense, but others have substantial implications for all manufacturers, processors and users of PFAS in the United States. The most notable provisions relate to the Environmental Protection Agency (EPA or the Agency) and its Toxic Release Inventory (TRI) reporting requirements—and the provisions are already effective.

Background

The TRI program, established by section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA; Pub. L. 99-499), is an information resource created to inform the public of toxic chemical releases and pollution prevention activities as reported by industrial and federal facilities. Entities that manufacture, process and otherwise use the various substances listed in the Agency's TRI regulations above established threshold quantities must report annually the releases of those substances from facilities located in the United States. Concerns that have arisen in the context of private party litigation and state and federal regulatory activities concerning certain PFAS compounds have prompted an outpouring of legislative proposals in the House seeking to limit or prohibit PFAS uses and releases to water. The final terms of the NDAA reflect the product of those efforts.

PFAS Provisions in the NDAA

Pursuant to the NDAA, effective January 1, 2020, the following PFAS substances are now included in the TRI and are subject to TRI reporting requirements: PFOA; PFOA salts; PFOS; PFOS salts; PFAS substances that have been listed as "active" chemical substances in the February 2019 update to the Agency's Toxic Substances Control Act (TSCA) Inventory and are subject to either the TSCA Significant New Use Rule (SNUR) at 40 C.F.R. § 721.9582 or the SNUR at 40 C.F.R. § 721.10536;² substances known as GenX; PFNA; and PFHxS. Based on these criteria, EPA has announced a total of 160 PFAS that are subject to annual TRI reporting. EPA published the full list on January 16.³ EPA expects to issue an immediately effective amendment to its TRI regulations which are codified at 40 CFR Part 372 in the near term. All manufacturers, processors and users of these PFAS substances who exceed the 100-pound threshold are required to report their 2020 releases of newly listed substances. TRI reports addressing such releases will become due July 1, 2021. Pursuant to the NDAA, the EPA Administrator is required to determine if any revisions need to be made to this 100-pound threshold not later than five years after enactment.

In addition to the PFAS substances that will be immediately included in the TRI reporting regulations, the NDAA includes provisions that allow EPA to potentially add more PFAS chemicals to the TRI requirements, thereby subjecting PFAS manufacturing companies and the down-stream users of their chemical products to further TRI reporting requirements. Specifically, on a going-forward basis, PFAS substances or classes of PFAS not already listed above will be automatically included in the TRI beginning January 1 of the calendar year after which any of the following occur: 1) the date EPA finalizes a toxicity value for the PFAS substance or class; 2) the date EPA makes a SNUR determination for a new PFAS substance or class of similar substances; 3) the date on which the PFAS substance or class is added to the list of substances already covered by a SNUR determination; or 4) the date on which the PFAS chemical or class for which a SNUR determination applies is designated as an "active" chemical substance pursuant to TSCA section 8(b). PFAS substances and classes of PFAS that fall within these provisions will also be subject to a 100-pound TRI reporting threshold. Potential revisions to the reporting threshold for these chemical substances must be reviewed within five years after being added to the TRI.

Further, the NDAA provides a list of 15 additional PFAS substances not currently covered by the provisions described above that require review not more than two years after the NDAA enactment to determine if they meet the criteria for inclusion in the TRI. If it is determined that any of these other PFAS substances require inclusion and are therefore subject to TRI reporting requirements, the TRI entry will be revised not later than two years after making such a determination.

As discussed further below, the NDAA's PFAS terms, and the obligations they could create, do not end with these initial, and near-term, additions to the TRI reporting requirements.

But Wait . . . There's More

Shortly before the NDAA was enacted, EPA published an Advance Notice of Proposed Rulemaking (ANPRM) on December 4, 2019, opening a 60-day comment period, to solicit stakeholder comments and information as to which PFAS substances should be subject to TRI reporting and possible threshold requirements.⁴ As explained above, with the passage of the NDAA, 160 of the 600 PFAS substances currently active in US commerce are immediately reportable, perhaps making moot a central purpose of the ANPRM. Recently, the Agency has made clear, however, that notwithstanding the NDAA, EPA is continuing to solicit comments with respect to potential listings and information not covered by the NDAA, such as other PFAS substances that might be appropriate for listing and suggestions for reporting thresholds.⁵ EPA also would like to receive input from the public concerning PFAS categorization, and the availability of new information on the toxicity, persistence, and bioaccumulations of additional PFAS.

Actions that might be taken by EPA pursuant to the ANPRM remain uncertain; however, the NDAA establishes obligations that will keep EPA staff (and the regulated industries) busy for the foreseeable future. For example, the NDAA requires the Agency to finalize by June 22, 2022, its 2015 proposed rule that would amend a SNUR previously codified at 40 C.F.R. § 721.10536 for certain long-chain perfluoroalkyl carboxylate chemical substances. The amendment would require, among other things, reporting on any uses of certain substances that EPA believes have been voluntarily phased out and require reporting on those substances when they are present in imported manufactured articles. This feature of the amendment was controversial because of the difficulty it would impose on importers of finished articles to have an awareness of the chemical content of their products. Similarly, the amendment contemplated in 2015 would eliminate exemptions from reporting under the SNUR codified at 40 C.F.R. § 721.9582 for import of specific PFAS chemicals as part of manufactured carpets.⁶ The Agency has struggled for years with the 2015 proposal and in the fall of 2019 managed to send an updated version of the proposal to the Office of Management and Budget which remains under consideration.

The NDAA also directs EPA to issue a "data call" rule pursuant to section 8(a) of TSCA by January 1, 2023, requiring PFAS manufacturers to submit information about each PFAS substance, including existing information concerning the environmental and health effects and estimates of the number of people exposed. In future efforts to be undertaken pursuant to the NDAA, EPA will issue guidance on the destruction and disposal of PFAS and PFAS-containing materials; undertake additional study of PFAS effects on health and the environment, develop new tools to characterize and identify PFAS in the environment, and review remediation approaches for PFAS.

Coping With a Rapidly Changing Regulatory Landscape

Commencing this year, manufacturers, processors and users of PFAS who are now subject to TRI reporting requirements will have many questions as they attempt to accurately and efficiently measure and report quantities of various PFAS released to the environment. There are considerable concerns that are likely to be expressed in response to the ANPRM regarding the lack of key methods that have been validated for measuring PFAS releases. PFAS air emissions will be especially challenging to estimate and even more difficult to measure. In recent comments already provided to EPA by the Environmental Technology Council, a national trade association for the commercial hazardous waste management industry, these issues were noted especially when attempting to quantify PFAS releases in hazardous and remediation wastes because "few commercial laboratories have the necessary instrumentation and personnel to analyze waste materials for PFAS concentrations."⁷

Navigating the new TRI reporting requirements will be complex, especially given the reporting deadlines and limited methods for accurately measuring PFAS releases. The data reported often is reviewed by public interest groups and plaintiffs' counsel with an interest in potential litigation. To complicate matters, the failure to comply with the annual TRI reporting obligations, and errors or omissions in reports, can result in civil penalties.

Remaining informed and in compliance as EPA unveils the numerous new regulatory actions it must initiate in accordance with the NDAA deadlines will present tremendous challenges. Arnold & Porter attorneys are continuing to monitor the situation. Future Advisories will help keep readers apprised of regulatory developments affecting PFAS chemistries and related products.

*Leigh Logan also contributed to this Advisory.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.