Document VKo7kMaX3rwvg2XBXwBOdLM4o

But Upton spoke for the bill and challenged many of his GOP colleagues. "The bill is not perfect, it needs to see a number of constructive changes," said the Michigan Republican, standing firmly behind the effort. Legislation pegged to contamination from per- and polyfluoroalkyl substances has abounded in Congress this year, but H.R. 2467 is the most ambitious of the bills. It would accelerate EPA's current efforts to regulate two types of PFAS -- PFOA and PFOS -- in drinking water, in addition to pushing the agency toward an action it has debated: designating those two chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act. Other measures in the bill include a crackdown on PFAS incineration and efforts to stem discharge into waterways. H.R. 2467 would also regulate PFAS in water, air and soil under key statutes. More controversially, the bill directs EPA to make a decision within five years about extending CERCLA designation to the entire PFAS family, targeting thousands of chemicals beyond just PFOA and PFOS. That provision drew fire during the bill's first journey through the House in the last session, when many Republicans argued it would impact essential products like medical devices. This go-round, those same critics have made similar points now within the context of the pandemic, with several noting PFAS chemicals are in some masks worn to prevent the spread of COVID-19 (E&E Daily, July 13). Still, the bill's diverse support reflects the widespread nature of PFAS contamination. During a press conference this morning, bipartisan members of the Congressional PFAS Task Force vowed commitment to passing the legislation and to continue introducing bills targeting the chemicals. "There are very few task forces that form around one single issue," said Rep. Brian Fitzpatrick (R-Pa.), who offered hope for an "overwhelming bipartisan vote." Amendments House lawmakers approved 10 amendments to the bill, including a bipartisan effort from Fitzpatrick and Rep. John Sarbanes (D-Md.) requiring EPA to obtain analytical reference standards for PFAS. Democrats previously shot down multiple Republican amendments on Monday during a Rules Committee hearing, including several with carve-outs for various items containing PFAS, like military gear (E&E Daily, July 20). Energy and Commerce ranking member Cathy McMorris Rodgers (R-Wash.) emphasized the rejection of those amendments during remarks where she argued that those additions made in order "[do] not improve this bill." Environment and Climate Subcommittee Chair Paul Tonko (D-N.Y.), meanwhile, offered that "overall, these are good improvements to the bill and they should not be controversial." 2 The amendments were approved 226 to 195, with eight Republicans joining Democrats in favor of the proposals. Another effort from Rep. Dan Crenshaw (R-Texas) to send the bill back to committee failed 218 to 204. Hazardous designation Republicans speaking on the House floor centered much of their criticism on the bill's CERCLA provisions, which they said would have deep-reaching consequences. "Like it or not, some PFAS chemicals have specific properties that aren't easily addressed with other chemical types," said McMorris Rodgers. She argued "solar panels, wind turbine parts, medical devices and parts" would be among products jeopardized by the bill. Another Republican, Rep. David Joyce (R-Ohio), made similar remarks implying the bill would ban all products containing PFAS. "We would not ban the entire periodic table because it contains arsenic and mercury," said Joyce. Numerous CERCLA experts and EPA have countered those assertions, saying CERCLA is a statute dealing with legacy contamination and not manufacturing. A hazardous substance designation under CERCLA would not be a "de facto ban" on the chemicals. But GOP members reiterated the argument on the floor. Rep. Kelly Armstrong (R-N.D.) was one of multiple lawmakers to assert that Democratic reassurances about CERCLA designation were false. "Unfortunately that is not true," Armstrong said. Tonko retorted that the designation is "not a ban" and noted that hundreds of chemicals designated as hazardous under CERCLA continue to be actively used in commerce. Dingell also grew testy over repeated Republican claims about the legislation's implications. "It will not ban masks," the Michigan Democrat emphasized. Outlook Multiple industries have fiercely opposed the bill, arguing it would have steep economic impacts and other severe implications for business. In a statement following its passage, the powerful American Chemistry Council panned the bill as obstructive to innovation. "The PFAS Action Act takes decisions out of the hands of EPA's career scientists who are best positioned to make regulatory determinations," the trade organization said. "It also applies a one-size-fits all approach to regulating the wide variety of PFAS chemistries." A coalition of water associations, meanwhile, voiced strong opposition to the bill in a letter to lawmakers this week citing liability. "We believe water and wastewater utilities, when acting in accordance with all applicable laws, should be provided an exemption to protect the utilities and water customers from bearing the costs of cleanup," the groups wrote. 3 Exemptions common in other TSCA rules omitted The proposed PFAS rule will exclude from reporting PFASs produced solely for use as a pesticide or in food, food additives, drugs, cosmetics, or medical device uses. However, the scope of the proposed rule will surprise many when they realise the regulation will require reporting on PFASs when manufactured for virtually any other use, including when present as an unintentional impurity or byproduct of manufacturing or disposal, and when imported as a component in manufactured products, referred to as `articles'. This might include articles containing any of thousands of PFASs that could be present as part of surface coatings applied in manufacturing processes abroad. There is no exemption offered for substances produced only in small quantities (such as laboratory reagents, and other substances used only for research and development efforts) or for chemicals unintentionally present in another product or mixture. The EPA also has elected not to exempt small businesses that are manufacturers of PFASs or importers of materials containing the substances. The proposed rule contains pages and pages of lists of the specific identities of the substances for which reporting is required. However, it puts businesses on note that the printed lists might not include every substance for which reports must be submitted The proposed rule contains pages and pages of lists of the specific identities of the substances for which reporting is required. However, it puts businesses on note that the printed lists might not include every substance for which reports must be submitted. Therefore, the agency has proposed that the rule should include the following definition of PFAS: per- and polyfluorinated substances that structurally contain the unit R-(CF2)-C(F)(R')R''; and both the CF2 and CF moieties are saturated carbons and none of the R groups (R, R', R") can be hydrogen. This is the working definition used by the EPA's Office of Pollution Prevention and Toxics (OPPT) when it was attempting to identify PFASs that appear on the current TSCA Inventory. As a result, the lists which accompany the structural definition are identified as being non-exhaustive. The published list of PFASs potentially subject to the rule includes 1,364 substances on the TSCA Inventory. It also includes all PFASs subject to TSCA section 5 (new chemicals) low-volume exemption (LVE) applications that have been previously granted by the EPA to permit the substances to be produced subject to certain limitations in the US. As well as the definition and the lists in the proposal, the agency included structural diagrams for PFASs whose Chemical Abstract Services (Cas) registry numbers, or EPA Accession numbers could not be divulged in the publication due to confidential business information (CBI) claims. Timescale for compliance The proposed rule would require PFAS manufacturers to report to the agency during a six-month submission period commencing six months following the effective date of the final rule. This potentially provides companies one year following the effective date of the final rule to collect and submit all required information to the EPA. Given the complex nature of the supply chains for the manufacturers and importers of highly complicated manufactured durable goods (such as household appliances, office equipment, transportation equipment, and even military hardware), complying with this timeframe could be very difficult. Information and data subject to reporting Congress specified that the information elements listed in TSCA section 8(a)(2)(A)-(G) be collected. Accordingly, the agency has dutifully proposed to require (without exception) reporting of the following: chemical name and specific identity; trade or common name; representative molecular structure; physical form of chemical or mixture; industrial processing and use; consumer and commercial use; production volumes; whether the substance is imported for use onsite or solely for distribution; whether the uses are site-limited; the maximum quantity stored onsite at any time; total volume recycled on-site; byproducts produced during the manufacture, processing, use, or disposal of each PFAS, identifying information for the chemical and its releases to the environment, if any; worker exposure at various sites; disposal processes; total volume released and incinerated onsite; all existing information related to health and environmental effects, using the OECD harmonised templates; and other data relevant to health and environmental effects. 5 Exposure to allegation of other TSCA violations This last component - data relevant to health and environmental effects -- could have profound implications for submitters of existing data that has not before been shared with the EPA. A separate provision of TSCA (section 8(e)) requires the immediate submission to the EPA of information "which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment". An entity that reports, pursuant to this new requirement, information which the EPA determines qualified for "immediate" reporting under TSCA section 8(e) at the time the data were originally generated, could face exposure to stiff penalties for violations of a provision of the statute which the EPA vigorously enforces. Level of diligence required Manufacturers must report information "to the extent that the information is known to or reasonably ascertainable by the manufacturer". This includes "all information in a person's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know". The proposed reporting standard is similar to that of the TSCA section 8(a) chemical data reporting (CDR) rule and requires an exercise of due diligence. The EPA notes submitters would need to "conduct a reasonable inquiry within the full scope of their organisation", which could include inquiries outside the organisation to better understand the activities of upstream suppliers or downstream users or employees or other agents. The agency acknowledges in the proposed rule that importers of articles may lack knowledge of importing PFASs and recommends such importers "document [their] activities to support any claims [they] might need to make related to due diligence." Because submitters may have reported some information required by this rule due to CDR requirements, the EPA proposes allowing reporters to indicate in the reporting tool (CDX) that they previously provided such information through CDR for certain years. The manufacturer would still need to submit any other information required by the final rule. Confidential business information claims Similar to other TSCA reporting rules, the agency will permit "a person submitting a report form ... [to] claim certain information to be confidential, consistent with TSCA section 14". The EPA will require the submitter to substantiate its CBI claims, although the agency is proposing not to require substantiation for "specific production or import volumes of the manufacturer, as well as the percent production volume for each consumer or commercial use". Recordkeeping The EPA intends to impose a five-year recordkeeping period, which begins on the last date of the submission period (one year after the effective date of the final rule). Request for comments A rule of this scope and with such profound implications for entirely new segments of the manufacturing and importing communities that do not pay particular attention to TSCA merits attention and public participation. The EPA has identified several issues on which it specifically requests comments. For example, the agency is interested in comments regarding the proposed rule's approach to identifying the chemical substances subject to reporting, whether to include imported articles containing PFAS, the agency's approach to duplicative reporting, and the scope of environmental and health effects information to be collected. The comment period on this very significant proposed rule will conclude on 27 September 2021. The views expressed in this article are those of the authors and are not necessarily shared by Chemical Watch. The author transparency statement can be seen here. 6