Be aware of new and pending PFAS-related regulatory reporting requirements to protect your business.
December 11, 2023
PFAS manufacturers, users and dischargers of effluent are facing ever-increasing regulatory reporting requirements as the U.S. Environmental Protection Agency (EPA) continues to act on commitments outlined in its PFAS Strategic Roadmap.
What Are PFAS?
“PFAS” refers to per- and poly-fluoroalkyl substances, a group of man-made fluorinated chemicals that coat and repel. These substances are typically used in water repellants, fire suppression, anti-friction and anti-stick coatings and lubricants. Thousands of formulas exist. Other acronyms include PFOA, PFOS and the newer “GenX chemicals,” which is a reference to more recent formulas.
What makes PFAS so useful in products is also what makes PFAS a challenge to our environment. They resist breakdown, and they bio-accumulate. PFAS are being detected in water, soil, air, people and all of nature around the globe. Toxicology studies suggest certain formulas exhibit harmful health effects at thresholds in the parts per trillion.
Recent PFAS Rulings and Proposals
The EPA has published numerous guidelines and health advisories as it proceeds with key actions related to PFAS. Additional recent proposals also could impact businesses. Be aware of the following:
- In September 2022, the EPA proposed designating two PFAS (PFOA and PFOS) as CERCLA (“Superfund”) hazardous substances. In April 2023, the agency extended the comment period for the September proposal and expanded the chemical list for public input on the proposed rule, which remains pending. A CERCLA designation holds any entity that handled PFAS (not solely manufacturers) liable for recovery and remediation.
- In January 2023, the EPA announced revised effluent guidelines applicable to PFAS in landfills. Further studies and potential rulings are underway regarding steam generation, meat products, organic chemicals, plastics, metal finishing, textile mills and animal feed operations.
- In March 2023, the EPA issued its latest proposal for regulating PFAS in drinking water at 4 parts per trillion for six compounds. Scientists indicate that this is the lowest level that can be reliably measured. Finalization is pending public comment.
- In October 2023, the EPA finalized a new rule under the Toxic Substances Control Act (TSCA), requiring one-time reporting of the manufacture or import of PFAS since January 1, 2011. Reporting forms will be due 18 months following the effective date of the new rule.
- In October 2023, the EPA published a final rule eliminating customary toxic release reporting exemptions for small volumes and mixtures of less than 1% for chemicals of special concern. Chemicals of special concern include 189 PFAS compounds. Reporting starts January 1, 2024.
What to Do to Protect Your Organization
Considering current and pending PFAS-related regulations, take the following steps to address risks and protect your organization.
- Review the ingredients within feedstock, components and products that you manufacture, assemble, distribute, import or use in your business now and in the past. If PFAS are included, prepare for upcoming disclosure and reporting requirements. Are PFAS substances at safe levels, and what substitutions can be made?
- Discuss with your environmental attorney and/or consultant the possibility of PFAS existence at your worksite.
- Be aware of state PFAS rulings or requirements. State regulations may take effect before those of the EPA and could be more stringent than federal regulations.
- Assemble business insurance chronologies (e.g., commercial general liability, workers’ compensation, directors and officers liability, site pollution liability, contractor’s pollution liability) should these programs provide indemnity to a future claim. Pollution exclusions introduced in the 1980s will come under further litigation challenges.
Current property and casualty business insurance policies likely contain PFAS/pollution exclusions. Certain scenarios may be insurable in an environmental insurance policy.
Related Reading: Why Consider Environmental Impairment Liability Insurance Now
The above information does not constitute advice. Always contact your insurance broker or trusted advisor for insurance-related questions.
Managing Director - Environmental Risk
Mary joined Hylant in 2005 and focuses on placement of environmental insurance programs supporting real estate transactions, ongoing operations, and M&A. In her current role as Managing Director, Environmental Risk & Placement, Mary’s duties involve the identification of environmental liability and risk management solutions, guiding client understanding of environmental insurance products, and coordination/negotiation of custom policy structures and terms.
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