The recent wave of federal and state law changes related to PFAS chemicals may pose immediate and long-term challenges for the government contracting community. At the federal level, contractors who import products, parts, packaging, equipment, or other items containing PFAS-containing components face new and extensive regulatory reporting requirements related to such imports retroactive to 2011. and must do so by May 2025. At the state level, a growing number of states are imposing outright bans on the sale and distribution of such products and components. In addition to this flurry of environmental regulatory activity, the Biden administration is also requiring federal agencies to implement PFAS-free regulations as part of the administration's broader effort to leverage federal procurement capabilities to pursue climate change and sustainability policies. continues to instruct the government to develop a procurement strategy that prioritizes the purchase of these goods. the goal.
As the regulatory response to PFAS chemicals continues to grow and expand, government contractors are preparing to face increased scrutiny for their direct and indirect uses of PFAS chemicals. must be kept. For a primer on this new landscape, see Crowell & Moring's recent webinar. Key reporting requirements for products containing PFAS: What companies need to know (and do) now.
What are PFAS chemicals and where are they used in government contracts?
Perfluoroalkyl and polyfluoroalkyl substances (commonly referred to as PFAS) are a broad class of man-made synthetic chemicals that are widely used in consumer, commercial, and industrial products due to a wide range of performance qualities, including: Masu.
- resistance to chemical reactivity or degradation;
- resistance to extreme temperatures,
- physical strength and recovery
- water repellent,
- Flame retardance,
- Friction resistance,
- Properties of surfactants and
- Excellent electrical insulation.
PFAS chemicals are widely used throughout the United States, including in the following areas:
- aerospace and defense;
- car,
- construction,
- electronics,
- energy and
- Consumer products and apparel.
PFAS chemicals are commonly found in a wide range of products and components sold to the government, including certain types of tubing, piping, seals, gaskets, cables, insulation, wiring, castings, sealants, laminates, printed circuit boards, coolants, and solar panels. It contains. These include components, consumer products, and fabrics, just to name a few. A recent U.S. Department of Defense (“DoD”) report to Congress, for example, reflects the widespread presence of PFAS throughout the value chain of the defense industrial base. The Department of Defense summarizes:
Significant applications of PFAS include nearly all major weapons, including but not limited to fixed-wing aircraft (trainers, fighters, bombers, transport aircraft, tanker aircraft, ground support, unmanned aircraft, and related support equipment). Identified by system category. Rotorcraft (attack, transport, heavy lift, search and rescue, and related support equipment). Surface ships (battleships, destroyers, aircraft carriers, cutters, landing craft). submarine. Missiles (air-to-air, surface-to-air, air-to-ground, ballistic). torpedo system. radar system. Tanks, assault vehicles, infantry transport vehicles, etc.[1]
What environmental regulations are emerging?
federal environmental regulations
EPA recently issued a final rule under Section 8(a)(7) of the Toxic Substances Control Act (TSCA) (mandated by Congress in the National Defense Authorization Act of 2020). The rule imposes extensive reporting obligations on companies such as: Anytime since 2011, manufactured or imported Any PFAS chemicals (including PFAS chemicals imported as part of products). Importantly, EPA's new PFAS reporting regulations do not include many of the exemptions typically found in regulations issued under TSCA. For example: no Exemption for substances manufactured or imported as impurities or by-products no There is a broad exemption for materials manufactured or imported solely for research and development (R&D) purposes. moreover, no Exemptions for goods manufactured or imported pursuant to government contracts; and no Exemptions for articles that may suggest national security concerns. Finally, there is no minimum creation (or import) threshold that will trigger a report, nor is there a “de minimis” level of PFAS content below which a report is not required. As a result, a government contractor is subject to the rule's reporting requirements if, at any time after January 1, 2011, he imports equipment containing one or more PFAS compounds, regardless of the number of equipment imported. It becomes. (e.g. for one-time imports), regardless of the level or concentration of his PFAS within each device.
What information do I need to report?
Companies subject to the new rule will be required to provide the following information to EPA for each facility that imports articles containing ingredients that contain at least one PFAS compound:
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- The identity of the PFAS substances in the article.
- Category of use of PFAS substances in the article.
- Specific functions of PFAS substances in the article.
- Estimated maximum concentration of PFAS substances in the paper.and
- Annual import volume of articles containing PFAS substances.
What are the reporting criteria?
Importantly, this information must be reported annually, beginning in 2011, to the extent that the submitter “knows or is reasonably ascertainable” that the facility has imported articles containing ingredients containing PFAS. That's it. The regulations define this to mean:All information that the person owns or controls, plus all information that a reasonably similarly situated person would reasonably expect to own, control, or know.” EPA further states in the preamble to the final rule that the “well-known or reasonably ascertainable” standard requires submitters to conduct a reasonable investigation within the entire scope of the organization, and further states that: It is explained that there may also be requests for such things.
Inquire outside the organization to fill gaps in the submitter's knowledge. Such activities may include telephone calls or email inquiries to upstream suppliers, downstream users, employees, or other agents of the manufacturer, including those involved in research and development, import or production, and marketing. There may be cases.
What is the compliance timeline?
Under the new rules, companies will have one year to gather the information needed for the report, and then have six months until May 2025 to submit their report to the EPA. Given the complexity of navigating multi-tiered global supply chains, contractors must act without delay to understand their obligations, initiate investigations, and conduct the necessary internal research to ensure compliance with this new regulation. Processes need to be developed.
STATE LAW PROHIBITIONS AND LIMITATIONS
Two states, Maine and Minnesota, recently banned the sale of products or product components containing PFAS chemicals in those states, regardless of whether the product is intended for industrial, commercial, or consumer use. A law was enacted to prohibit distribution. Laws in both states allow regulators to exempt certain products or product categories if they determine that their use of PFAS in those products is “currently unavoidable.” Both states define a currently unavoidable use to mean a use that is “essential to health safety or the functioning of society” for which no alternatives are reasonably available.
It is also important to note that several other states are poised to follow in the footsteps of Maine and Minnesota and enact legislation banning the trade of all products containing PFAS chemicals. Copycat bills have already been introduced in Illinois and Connecticut this Congress, and similar bills are pending or expected to be introduced in other states, including New York, California, Colorado, and Kentucky.
conclusion
Government contractors must be prepared to face increased levels of PFAS-driven surveillance. For example, the identification of PFAS-containing articles in compliance with EPA's PFAS reporting rules will require government contractors to identify PFAS-containing items at the same time as the Biden administration continues to develop new policies that promote “sustainable sourcing” mechanisms, including the development of new markets. may pose unique risks. Covers PFAS-free products and services. As previously explained, Executive Order 14057: Promoting clean energy industries and jobs through federal sustainabilityThe administration will focus on achieving “a carbon-free power sector by 2035 and net-zero economy-wide emissions by no later than 2050,” with a focus on federal sustainability and climate-related procurement. An overview of the initiative was provided. However, the government's concept of sustainable sourcing also includes prioritizing the procurement of PFAS-free products. According to the EO 14057 Implementing Instructions issued by the White House Council on Environmental Quality (“CEQ”) in August 2022, the provisions of Section 208 of EO 14057 require agencies to “ contains instructions to “prefer substitutes for products that contain”. Substances (PFAS). . ” The direct procurement restrictions pursued so far have been targeted separately;for example, phasing out PFAS-containing firefighting foams and prohibiting the Department of Defense from purchasing consumer products such as nonstick cookware and utensils, stain-resistant upholstered furniture, carpets, and rugs (FY 2021 Regulations No. As directed by Section 333 of the NDAA)), additional restrictions, labeling and notification requirements, and information requests are expected to emerge both in the form of new procurement policies and specific provisions included in individual contract opportunities. Masu. Therefore, government contractors should approach the immediate compliance obligations summarized above with future procurement constraints and priorities in mind.
