Herb Estreicher and David Fischer Quoted in Inside TSCA Article on PFAS Definition

Keller and Heckman attorneys Herb Estreicher and David Fischer were quoted in the Inside TSCA article, “Attorneys See PFAS Definition, ‘Ongoing Use’ Data as Hurdles to TSCA Action.” The article mentions Keller and Heckman’s February 8, 2023 TSCA 30/30 webinar, where Herb and David discussed how the U.S. Environmental Protection Agency (EPA) is unlikely to create a single, consistent definition for per- and polyfluoroalkyl substances (PFAS). Various programs “need their own way of defining PFAS,” said David. “You have to be careful in terms of looking at the various documents or rulemakings or what have you to really understand what PFAS definition is being used. You can’t assume that the same definition is used throughout the agency because there is no single definition, and there probably won’t be.”

Herb discussed during the webinar that EPA’s recently proposed significant new use rule (SNUR) that would block processing or manufacturing for PFAS classified as “inactive” on the TSCA inventory of chemicals in commerce could run into confusion not only on which substances are considered part of the class but also whether they are not actually in commerce. “It’s possible that someone was using these chemicals for a use that was exempt from the reset rule, but would not be exempt from the SNUR,” stated Herb. “And so EPA wants to know what those uses are. As you know, EPA can only regulate a new use. And it’s actually a very interesting legal question as to what a new use is.” 

Herb noted that chemicals cannot be delisted from the TSCA inventory solely on the basis that they are listed as inactive. And changing the chemical’s status to active through a formal notice to EPA would not trigger a formal risk review. However, the statute does not explicitly say inactive chemicals cannot be subjected to SNURs.

“I think the intent was clear that simply because you’re inactive is not a basis for subjecting you to de novo review,” Herb noted. He said stakeholders should comment on EPA’s proposal to raise that issue.

Herb also discussed the EPA and environmental groups’ TSCA enforcement suits against a company that fluorinates plastic containers, which allege violation of the LCPFAC SNUR by virtue of creating non-exempt byproducts. 

Herb noted that the fluorination process has been in use for decades -- meaning the case could set a standard for when such activity rises to the level of an “ongoing” use exempt from SNURs.

The case also raises novel issues about the SNUR exemptions at 40 CFR 721.45.

Herb stated, “I think this raises a very, very interesting legal issue, and I hope whomever is handling this thing briefs this properly because we may get some rather useful interpretation of all these issues from the judges that are going to be handling this.” 

Herb said industry groups should consider intervening or filing amicus briefs in the case because it could be decisive in determining what constitutes a “new use” in the context of SNURs.

Lastly, David noted that EPA’s TSCA testing strategy for PFAS has relied on grouping the chemicals based on chemical structure and trying to identify candidates that can represent a class or subclass in toxicity studies rather than testing each one individually. EPA announced that it plans to issue about 75 TSCA test orders in the coming years, approximately 45 of which will be for PFAS. “That’s a tall order for the agency to meet, but even if they came halfway or so, that’s still a lot of test orders for the agency to issue and a lot of data to process,” commented David.

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