The Nickel Report

In January 2023, federal agencies released their “Fall 2022” Regulatory Agendas that provide roadmaps for upcoming and long-term regulatory actions on chemicals that could have significant implications for the regulated community. These agendas make clear that the Biden Administration continues to prioritize regulatory actions to address per- and polyfluoroalkyl substances (PFAS) across multiple agencies. And the US Environmental Protection Agency (EPA) also continues to implement numerous regulatory initiatives to assess and mitigate chemical risks under the strengthened Toxic Substances Control Act (TSCA).

Hunton’s chemical regulatory team has provided analyses of these upcoming regulatory actions:

• EPA’s “Fall 2022” Regulatory Agenda – Upcoming PFAS-Related Actions
• EPA’s “Fall 2022” Regulatory Agenda – Upcoming Toxic Substances Control Act (TSCA) Actions

PFAS
EPA and the US Department of Defense (DoD) have planned a number of upcoming and novel regulations covering PFAS in the areas of procurement, drinking water, chemical reporting and recordkeeping, and site clean-up. Among these regulatory items are:

• DoD’s proposal to prohibit the Department from procuring the following items that contain perfluorooctane sulfonate (PFOS) or perfluorooctanoic acid (PFOA): nonstick cookware or cooking utensils for use in galleys or dining facilities and upholstered furniture, carpets, and rugs that have been treated with stain-resistant coatings.
• EPA’s forthcoming proposed national primary drinking water regulation (NPDWR) for PFOA and PFOS.
• EPA’s novel proposed rule designating PFOA and PFOS as CERCLA hazardous substances.
• EPA’s proposed listing of PFOA, PFOS, PFBS, and GenX as RCRA hazardous constituents.
• EPA’s proposal to add certain PFAS to the Toxics Release Inventory and add PFAS to the list of chemicals of special concern under EPCRA.
• EPA’s proposed rule to require reporting and recordkeeping of PFAS under TSCA.

TSCA
EPA’s Office of Pollution Prevention and Toxics (OPPT) has released a robust agenda covering procedures for approvals of new chemicals, existing chemical evaluations and regulations, chemical data reporting, confidential business information, and fees under TSCA. EPA’s agenda reflects an effort by the agency to gather significantly more information from regulated entities about new and existing chemicals, improve transparency, clarify its procedures for new and existing chemical evaluations, require more from companies who seek to protect confidential information, and substantially increase fees for companies regulated under TSCA.

While the action items on the regulatory agendas have not changed significantly since their spring 2022 agendas were released (see Hunton Andrews Kurth LLP’s report on spring regulatory agendas), almost all planned release dates for regulatory proposals and final rules have been delayed—some by years. Particularly in the TSCA program, these delays are a reflection of EPA’s purported dire lack of funding and resources to carry out its responsibilities under the reformed law.

Please contact our team for more information.