When analyzing enterprise risk management for 2023 and beyond, the changing landscape of per- and poly-fluoroalkyl substances (PFAS) regulations has to be top of mind. PFAS regulation non-compliance, whether by honest misunderstanding or egregious malintent, can carry multi-billion dollar financial penalties and weary supply chain complications.
To avoid disruptions in production and costly legal challenges, understanding PFAS regulations is critical for companies involved in the manufacture, use, sale, and disposal of products that contain per- and polyfluorinated substances, or “forever chemicals.”
As the scientific knowledge base around PFAS and the hazards that these chemicals pose to human and environmental health become better understood, governments around the world are moving to pass legislation restricting their commercial use.
Having a firm grasp of federal regulations is a good start, but companies can still be vulnerable to the often stronger state policies — and that’s just in the United States. The international PFAS policy landscape presents its own set of unique challenges.
With jurisdictions moving forward at different paces, we have compiled a guide to help you navigate these complicated waters and become familiar with the main PFAS policies in major markets around the world.
Why are PFAS Regulated?
PFAS are regulated in jurisdictions around the world because of the harmful effects that these chemicals can have on humans and the environment.
PFAS have been linked to cancer, asthma, reproductive and developmental irregularities, impacted liver and kidney function, low infant birth weights, and other negative health effects.
Efforts to contain or remove PFAS from the environment are complex, costly, and time consuming. Governments or taxpayers have largely paid for cleanup projects to this point, which is a big driver behind the regulatory push.
“A lot of it is being driven by cost because the costs are just increasing and increasing,” says Sarah Doll, national director of Safer States, an advocacy group alliance that promotes policies to keep harmful chemicals from entering the environment. “It’s taxpayers that are paying for the management, testing, and clean-up costs. Jurisdictions are now saying, how do we hold companies responsible for this mess?”
PFAS Regulations in the United States
The PFAS regulatory landscape at the federal level is dictated by the EPA PFAS Strategic Roadmap. This document outlines the regulatory plans of the Environmental Protection Agency (EPA) from 2021 to 2024. So far, the plan has been followed as stated, though some steps have been taken a little later than initially targeted.
The roadmap coincides with the current Biden administration and although this could change in the 2024 elections, Doll doesn’t expect that to alter the trajectory of PFAS regulations.
“This isn’t a political issue,” explains Doll. “We aren’t talking about Republicans or Democrats being affected by PFAS. We are talking about firefighters, farmers, and families. This crosses political boundaries.”
The most notable EPA PFAS regulations at the federal level are highlighted below.
Toxic Substances Control Act (TSCA) New Chemicals Program
The TSCA New Chemicals Program is the gatekeeper that determines which new chemicals are allowed to enter circulation in the U.S. and what restrictions, if any, they carry.
Any company that intends to manufacture a new chemical substance for a commercial purpose is required to submit a pre-manufacture notice (PMN) at least 90 days before manufacturing the chemical.
EPA Significant New Use Rule (SNUR)
The EPA proposed a SNUR at the beginning of 2023 that would prevent anyone from resuming the use of inactive PFAS without new TSCA review.
Chemical substances that have not been manufactured, imported, or processed in the U.S. since June 21, 2006, are considered inactive.
Toxics Release Inventory (TRI) Reporting
The TRI requires industrial facilities to file a report on specific PFAS chemicals that they release into the environment.
There were nine new PFAS added to the TRI list in 2023. Lists of the chemicals that fall under these reporting requirements can be found on the TRI webpage.
National Pollutant Discharge Elimination System (NPDES) Permits
Companies that discharge pollutants into United States water sources require an NPDES permit. The EPA intends to further regulate PFAS disposal through the NPDES.
The EPA also plans to expand disclosure requirements to include landfill discharge through Plan 15 of the effluent limitations guidelines (ELG).
CERCLA Hazardous Substances
The EPA aims to designate certain PFAS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances. This designation would require industrial facilities to report on chemical releases that meet the reporting threshold.
Companies that handle PFAS with CERCLA designations could become liable for remediation costs.
State-Level PFAS Regulations in the US
PFAS regulations vary by state and advancement tends to happen at a quicker pace than at the federal level.
Some examples of state PFAS policies include Maine and Minnesota planning to ban all unnecessary uses of PFAS, California banning PFAS in children’s products and food packaging, and Colorado banning PFAS in cosmetics and other products.
The above list is not exhaustive and research into specific state policies is required. Better yet, enlisting the help of a PFAS policy expert can ensure that companies do not miss any relevant state PFAS regulatory developments.
PFAS Regulations in the European Union
The EU has proposed a landmark policy that would ban PFAS use across the entire region. The proposal was presented by the European Chemical Agency, initially brought forward by a coalition of five countries (Netherlands, Germany, Denmark, Norway, and Sweden). This would be a major regulation that would impact PFAS use worldwide.
Certain PFAS are already restricted in the EU under the Persistent Organic Pollutants (POPs) regulation.
PFAS Regulations in Canada
Some PFAS are already prohibited in Canada, including PFOS, PFOA, and long-chain PCFA.
A policy was recently proposed that would add PFAS as a class to the Schedule 1 List of Toxic Substances under the Canadian Environmental Protection Act (CEPA).
“Should PFAS be added to Schedule 1, this would give the authority to regulate those substances,” says Danielle Morrison, policy manager at the Chemistry Industry Association of Canada. “A Schedule 1 designation would enable the program to take the proposed steps in the Risk Management Scope.”
PFAS Regulations Worldwide
In most other jurisdictions, PFAS are still poorly regulated.
How Can Companies Keep Track of Evolving PFAS Regulations?
There are thousands of different PFAS chemicals and regulations regarding their use vary greatly by jurisdiction. Staying on top of all of the moving pieces can be difficult.
“So many bills get introduced each year and very few of them actually get enacted,” says Emma Sbrollini, policy associate at FiscalNote Professional Services. “We cut down the noise for our clients, sift through the bills, and present the ones that are relevant to their government affairs professionals. It saves them so much time and a lot of work.”
FiscalNote Professional Services has its policy consultants tracking PFAS regulatory developments in jurisdictions around the world. Enlisting the help of a PFAS policy expert is an intelligent insurance policy for companies that engage in the manufacture, use, sale, and disposal of products that contain PFAS.
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