According to an anonymous US Environmental Protection Agency (EPA) employee, the agency is considering whether to propose a rule that would require the agency to reevaluate the health and environmental risks of certain chemicals, including per- and polyfluoroalkyl substances (PFAS).
This could lead the EPA to determine that PFAS (and other substances) do not pose an “unreasonable risk,” as defined by the Toxic Substances Control Act (TSCA), which authorizes the EPA to regulate chemicals not covered by other federal statutes. This could, in turn, end state laws (including California’s broad-sweeping Prop 65) regulating the use of these chemicals under the preemption provision of TSCA, as amended in 2016.
Significantly, no rule has been proposed yet. Even after the would-be rule is promulgated, changes will not take effect immediately, as each chemical faces a lengthy evaluation process. In the interim, the state regulatory schemes will march forward, and manufacturers should remain vigilant of the restrictions these laws impose. Many manufacturers are likely to eliminate the use of PFAS in their products before the potential new rule takes effect, let alone is implemented. This is probably the safer bet in the long term, at least for certain products and classes of PFAS.
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