Attorneys: EPA Suggests It Lacks Authority to Require Importers to Report PFAS
EPA may be proposing an interpretation of the Toxic Substances Control Act that finds that the agency doesn't have the statutory authority to require reporting from those importing articles containing per- and polyfluoroalkyl substances (PFAS), according to attorneys with Bergeson and Campbell in a recent blog post on EPA's plans to amend PFAS regulations and allow certain exemptions to the scope of reporting PFAS (see 2511120028).
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This interpretation could have widespread implications for regulations, from precluding importers to be subject to submitting data on PFAS exposures to influencing deregulation on other EPA regulations, the attorneys said.
The agency had promulgated regulations in October 2023 requiring PFAS manufacturers and importers subject to TSCA regulations in any year between 2011 and 2022 to report certain data to EPA related to exposure and environmental and health effects. The proposed rule, released by EPA earlier this month, would exempt imported articles and set a 0.1% de minimis exemption.
But "EPA now states that the law is 'best read as excluding articles and targeting the reporting requirement to manufacturers of the PFAS themselves,'" attorneys said, quoting the proposed regulation. "EPA rationalizes that Congress 'could have said so' if it desired the reporting requirements to extend to those who import articles containing PFAS." EPA's new argument runs counter to EPA's final rule in 2023, in which the agency argued that it had the authority to require importers to report articles' PFAS, the law firm continued.
By not compelling importers to report PFAS, the attorneys suggest that EPA may not collect information on PFAS from importers any time soon, including data on PFAS exposures from imported articles.
If EPA finalizes the rule, future challengers would have to convince a court that EPA has the statutory authority to require reporting from importers and that EPA's application of discretion under TSCA Section 8(a)(5) to exempt imports was inappropriate, the note said.
Furthermore, EPA could use the argument that imported articles don't fall under the same category as "manufacture of a chemical substance" in other regulations, the attorneys said, although whether that would actually happen remains to be seen.
"Applying EPA’s new reasoning, for example, one could argue that Congress never intended EPA’s existing chemical risk evaluations to consider import of articles containing a chemical as a 'condition of use.' Congress could have mentioned 'articles' -- but did not -- when it defined 'conditions of use' in the 2016 amendments to govern the scope of existing chemical reviews," the attorney said.