Insights

Washington – January 11, 2023: Crowell & Moring has published Litigation Forecast 2023: What Corporate Counsel Need to Know for the Coming Year. The 11th-annual Litigation Forecast focuses on trends in litigation that are playing out in specific jurisdictions around the globe. 

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.

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.

The Household and Commercial Products Association’s (HCPA’s) Pesticide Regulation Workshop, organized, hosted, and co-presented by Crowell, is the oldest and largest annual event dedicated to pesticide regulation, compliance, and enforcement under federal and state pesticide laws. This year’s workshop will feature guest speakers from the U.S. Environmental Protection Agency’s Office of Pesticide Programs and Office of Enforcement and Compliance Assurance and from the Natural Resources Defense Council. This year’s workshop will focus on practical information, including what companies need to know in order to get their pesticide products onto the market, keep them there, and avoid business disruptions and penalties. Knowledgeable and experienced presenters will cover the following topics:

As 2023 rolls in, what changes can government contractors expect? What will be the focus of the US Government? How should contractors prepare?

Partner Amanda Berman will be presenting the session "Regulatory Roulette: The State of Play Under the Clean Air Act, Clean Water Act, and Other Major Environmental Statutes" at 10:45 am on Wednesday, March 24th.

Last month the U.S. EPA hosted simultaneous press conferences in every EPA Region to roll out an Action Plan for addressing growing public concern and potential human health risks posed by polyfluoroalkyl substances (PFAS) in the environment and household products. As part of the Action Plan, EPA set a goal of proposing drinking water maximum contaminant levels (MCLs) for two PFAS constituents, PFOA and PFOS, by the end of 2019. U.S. EPA’s widely publicized announcement signaled that EPA has elevated its priority for addressing the PFAS problem, and highlights the public and political pressure facing EPA to take action. While the federal regulatory process will still require years, EPA announced real-time initiatives to give communities and state regulators more insight into where PFAS may be an issue.