October 1, 2021
The U.S. Environmental Protection Agency’s pending requirement that companies report their use of so-called forever chemicals could impose a tough burden on businesses across many industry sectors, and environmental attorneys say it’s crucial that companies act now to prepare.
The proposed new rule, currently being finalized by the Biden administration, would require businesses that have manufactured, processed or imported per- and polyfluoroalkyl substances, or PFAS, to submit a comprehensive report detailing all of those uses for a 10-year period. It contains few exceptions like those often found in other chemical data reporting requirements under the Toxic Substances Control Act and will apply to both major corporations and small businesses.
The broad scope of the proposed rule is intended to help the agency better understand the potential risks and scope of the chemicals. The rule would be a one-time requirement, but the reporting could pose significant challenges for clients that haven’t kept detailed records of their past decade of using PFAS, experts say.
Thousands of businesses that may have never interacted with the TSCA may now suddenly find themselves needing to navigate its complex reporting framework. Attorneys are counseling their clients to prepare now to submit the required documentation or be able to establish they deployed their best efforts to pull it together.
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And as PFAS-related litigation becomes more commonplace, reporting rules for the chemicals could provide an important tool for plaintiffs, especially in communities impacted by industrial processes, said Ted Leopold of Cohen Milstein Sellers & Toll PLLC.
Leopold is a co-lead counsel in one of the most prominent PFAS-related suits to date, targeting the alleged failure of DuPont Co. and Chemours Co. to stop toxic chemicals like PFAS from being dumped into the Cape Fear River in North Carolina. He said the transparency of the reporting requirement will help everyone from affected communities to regulators to better understand what the impacts of PFAS are.
“These chemicals are so highly toxic and dangerous for surrounding communities. Whoever is using these chemicals needs to act appropriately, put into place proper safeguards and document it appropriately,” he said. “That’s whether it’s DuPont, Chemours or a local company.”