Insights

On May 13, 2025, the U.S. Environmental Protection Agency (EPA) published an interim final rule in the Federal Register to extend the deadline for manufacturers and importers of products containing perfluoroalkyl or polyfluoroalkyl substances (PFAS) to report to EPA on their past activities.

On August 6, 2024, the Environmental Protection Agency (“EPA”) took the rare action of announcing the emergency suspension of all registrations for pesticide products containing the active ingredient dimethyl tetrachloroterephthalate (“DCPA” or “Dacthal”) under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). This is the first time in almost 40 years that EPA has issued an emergency suspension order.[1] EPA’s reasoning for the present action is that DCPA can cause adverse health effects in the fetuses of women exposed to DCPA.

A wave of recent changes in federal and state law pertaining to PFAS chemicals is likely to present both immediate and long-term challenges to the government contracting community. At the federal level, contractors that import products, parts, packaging, equipment or other articles with components that contain PFAS must confront new and extensive regulatory reporting requirements relating to such imports going back to 2011, and they must do so by May 2025. At the state level, a growing list of states are enacting total bans on the sale and distribution of such products and components. On top of this flurry of environmental regulatory activity, the Biden Administration continues to direct federal agencies to develop procurement strategies that prioritize the purchase of PFAS-free articles as part the Administration’s broader effort to leverage the federal procurement function in pursuit of climate and sustainability policy objectives.

Recent changes in federal and state law pertaining to PFAS chemicals will have profound impacts on clean energy companies in the U.S.  At the federal level, companies that import equipment or other articles with components that contain PFAS will have to comply with extensive reporting requirements.  At the state level, companies will face total bans on the sale and distribution of such products and components.

In a recent Client Alert we introduced readers to EPA’s new PFAS reporting rule under Section 8(a)(7) of the Toxic Substances Control Act (TSCA), highlighting the rule’s impacts on companies that are typically not regulated under TSCA, such as importers of equipment, machinery, electronics and other types of manufactured articles.  In this follow-up alert we examine how the new PFAS reporting rule will apply to manufacturers and importers of chemical products.  Although chemical manufacturers are likely to be well-acquainted with regulations under TSCA, EPA’s new PFAS reporting rule is unprecedented in scope and will present unusual compliance challenges for many companies that manufacture or import chemical products.

On September 28, 2023, EPA released a long-anticipated final rule aimed at gathering information on products in commerce that contain PFAS chemicals.  As defined in the regulation, the term “PFAS” includes a group of materials known as fluoropolymers, which are widely used in gaskets, tubing, electrical wiring, composite materials, printed circuit boards, membranes and many other manufactured articles.  Under EPA’s new regulation, any company that has imported any of these types of articles containing fluoropolymers (or any other PFAS chemical) at any time since 2011 will be required to submit extensive information to EPA regarding those products and activities.  The pre-publication version of the final rule can be found here.

Industrial facilities must contend with yet another federal chemical release reporting requirement – this one requires reporting of releases to the Chemical Safety and Hazard Investigation Board (the CSB), an independent agency that was established in 1990. Under the new “Accidental Release Reporting Rule,” the CSB is requiring facilities to report accidental chemical releases, which result in a fatality, serious injury, or substantial property damage. The purpose of this report is to give the CSB the information it needs to decide whether to initiate an investigation of the accident, and, ultimately, to provide a public account. The Rule becomes effective 30 days after the date of publication in the Federal Register, which is scheduled for February 21. So covered facilities must quickly get their arms around this new reporting program and integrate it into their compliance programs.

The federal government is imposing one of the first environmental requirements for per- and polyfluoroalkyl substances (PFAS), and industry must plan accordingly.

On January 27, 2020, the U.S. Environmental Protection Agency (EPA) identified companies that it believes are manufacturing or importing any of 20 “high priority” chemical substances undergoing EPA-initiated risk evaluations under section 6 of the Toxic Substances Control Act (TSCA). These companies could be subject to a mandatory share of a $1.35 million EPA risk evaluation fee for each substance.

Facilities, foreign and domestic, that produce pesticides, devices or active ingredients (“pesticidal products”) must file with EPA their annual production reports for 2018 on or before March 1, 2019. 

An EPA-approved Notice of Arrival of Pesticides and Devices (NOA) is required before a pesticide may be imported into the United States. Without EPA approval of an NOA, US Customs and Border Patrol (CBP) will not release the pesticide shipment at the port of entry. During past federal government shutdowns, the importation of pesticides effectively ground to a halt. Without funds or staff, EPA’s regional offices could not accept, and therefore could not process, NOA forms for pesticides. After the 2013 shutdown, EPA was determined to fix this problem, and one solution was the utilization of CBP’s Automated Commercial Environment (ACE), an electronic system where importers or import brokers can file NOAs electronically. All EPA regional offices now accept electronically filed NOAs.

As the 3D-printing industry evolves, many wonder about possible new regulations. In fact, certain players in the 3D-printing industry should be paying more attention to the industry’s rearview mirror and the preexisting regulations that can apply to 3D printing in unexpected ways. Specifically, existing chemical regulation will shape the obligations of those using 3D printers and those providing supplies to those printers.

On January 15, 2018, EPA increased the civil monetary penalty amounts for all of the statutes within the Agency’s purview. The 2018 Civil Monetary Penalty Inflation Adjustment Rule (the 2018 Rule) implemented the new statutory minimum and maximum penalties. Persons found liable for violations of EPA-administered statutes may now face increased civil monetary penalties. However, the statutory maximum penalties listed in the 2018 Rule do not necessarily reflect the actual penalties that violators will see in individual enforcement cases.

On December 1, 2017, EPA released the agency’s first official about-face on an Obama-era proposed environmental rule. In its final “Financial Responsibility Requirements under CERCLA Section 108(b) for Classes of Facilities in the Hardrock Mining Industry,” EPA concluded that the financial assurance requirements it had proposed under CERCLA for hardrock mining companies in January 20171 were unnecessary given developments in the industry and assurances already required under state laws and regulations. The final rule is notable in two respects: (1) it marks the closing of a lengthy and contentious process dealing with CERCLA financial responsibility rules; and (2) it is the first of what likely will be numerous final roll-backs of Obama-era policies.

On August 11, 2017 EPA published in the Federal Register the final TSCA Inventory Notification (Active-Inactive) Rule — commonly referred to as the “Inventory Reset Rule.” The rule, which is effective immediately, creates new reporting obligations for companies that manufacture or import chemical products. Companies that process chemicals in order to manufacture articles or to create formulated chemical products are also affected by the rule.