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Tom Berger Quoted in Inside TSCA Article on EPA Threat to Enforce PFAS SNUR

Keller and Heckman Partner Tom Berger was quoted extensively in the Inside TSCA article, “EPA Threat To Enforce PFAS SNUR Could Face ‘Ongoing Use’ Challenge.” The article mentions Keller and Heckman’s October 12, 2022 TSCA 30/30 Webinar, during which Tom discussed the U.S. Environmental Protection Agency’s (EPA) warnings to enforce its Toxic Substances Control Act (TSCA) significant new use rule (SNUR) for certain per- and polyfluoroalkyl substances (PFAS) against manufacturers of high-density polyethylene (HDPE) containers recently tied to PFAS contamination. “I think it’s an open question,” said Berger, “if EPA were to go after someone who's fluorinating these types of containers and say, ‘You violated the SNUR’ -- how a defense of ‘this was an existing use,’ would fly,” he said. “I think it’s an interesting question that hasn't been litigated, but probably is ripe for litigation at some point in the future.” EPA has threatened to pursue enforcement of the SNUR at least twice this year, but Tom indicated that the Agency’s statements appear to sidestep a fundamental question of whether the PFAS contamination stems from a “new” use that began after EPA promulgated the SNUR -- which by law cannot restrict “existing” chemical uses. Tom went on to describe a 1992 TSCA action, indicating that in that case EPA “acknowledged that certain uses were existing and carved those out of the SNUR.” However, he noted that this case is different than the 1992 case because it would not involve uses described in comments on a proposed SNUR, but rather pertains to uses that would arguably be completely unknown to EPA at the time SNUR was published.

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