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March 5th, 2024
The U.S. Environmental Protection Agency (EPA) finalized a rule aimed at preventing companies from starting or resuming the manufacture or processing of 329 different “forever chemicals”, i.e., per- and poly-fluoroalkyl substances (PFAS) that have not been made or used for many years without a complete EPA review and risk determination. Until now, these chemicals, also termed “inactive PFAS,” could have been used without review and were found in manufacturing across many industries as binding agents, surfactants, and in the production of sealants and gaskets. Their manufacturing use also served as a vector for the release of these chemicals into the environment.
Companies that could have resumed or incorporated uses of these PFAS without EPA notification and review are no longer permitted to do so under this new rule. The EPA’s promulgation of increased prohibitions on the use of these forever chemicals, widely associated with causing endocrine disruptions, cancer, and other serious health problems, is part of an effort to address a shortcoming in the Toxic Substances Control Act (TSCA) of 1976, that excepted thousands of chemicals from additional review and allowed to remain in commerce without any real insight into their actual toxicity. Forty years following TSCA’s passage, the EPA had completed formal reviews on only about 20% of new chemicals. TSCA also gave the EPA no authority to address new chemicals even where the Agency lacked sufficient information, paving the way for the proliferation of PFAS and other dangerous chemicals into the marketplace.
Fortunately, amendments to TSCA took effect in 2016, and today, the EPA must formally review the safety of all new chemicals before they can be placed into the stream of commerce. And now, with the promulgation of this new use rule, the EPA must conduct modern, robust reviews before any of these inactive PFAS can be used again. A company that wants to use any of these 329 chemicals must now notify the EPA and must then conduct a robust review of health and safety information to determine if the new use may present an unreasonable risk to human health or the environment and regulate its use accordingly before the use of that particular PFAS could restart. Any new uses of PFAS will now be considered under EPA’s 2023 framework for evaluating new and new uses of PFAS.
The EPA’s latest rule is another important step towards reducing public health exposure to certain of these dangerous chemicals. Hopefully, more will follow. But the legacy of a population and environment contaminated with PFAS left by the companies that make and use forever chemicals continues at untold cost to our bodies and our living spaces. If you believe your drinking water, health, or neighborhood has been seriously impacted by PFAS contamination, you should contact an experienced law firm right away to explore your rights.
