Coalition Argues TSCA Bars EPA From Weighing Data-Center Benefits in a New-Chemical Review

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A coalition of seventeen environmental organizations, led by Earthjustice, has asked EPA to deny a premanufacture notice (PMN) under the Toxic Substances Control Act (TSCA) for a fluorinated immersion-cooling fluid intended to cool data-center equipment.  The comments press three lines of attack: that the substance poses an unreasonable risk EPA must act on, that the substance’s asserted benefits for data centers are legally irrelevant to that judgment, and that the applicant redacted health and safety information it was required to disclose.

The comments, filed July 15, 2026, respond to EPA’s notice of receipt of the PMN.  The substance is 3-Hexene, 1,1,1,2,2,5,5,6,6,6-decafluoro-, (3E) (CASRN 1256353-26-0), also known as Opteon 2P50.  The PMN applicant’s identity was claimed as confidential business information (CBI).

The Risk the Comments Describe

The coalition’s core argument is that the fluid presents an unreasonable risk that TSCA section 5 obligates EPA to prevent.  It characterizes the substance as a PFAS and urges EPA to find unreasonable risk on that basis alone, citing concerns including persistence, mobility, bioaccumulation potential, and toxicity.  The substance’s status as a PFAS is contested: when chemical supplier Chemours launched the fluid in 2023, it stated that it does not consider the compound a PFAS, describing it as a hydrofluoroolefin (HFO) that degrades quickly in the atmosphere.  The coalition, on the other hand, characterizes HFOs as PFAS and argues that HFOs break down in the atmosphere into shorter-chain PFAS—principally perfluoropropanoic acid (PFPrA) and trifluoroacetic acid (TFA)—that are persistent, highly mobile in water, and difficult to remediate.  They also cite a recent European Chemicals Agency risk assessment committee’s June 2026 opinion—adopted by consensus, now before the European Commission—proposing that TFA be classified as toxic to reproduction.

The comments also argue that the limited information available on the substance raises additional concerns about its risks.  Available toxicity data, they say, come largely from rat studies that understate PFAS risk to humans, and a workplace exposure limit derived by a group the comments describe as industry-linked relied on assumptions it did not disclose.  They add that the fluid is acutely toxic to aquatic life and not readily biodegradable, and that a hyperscale data center could hold tens of thousands of liters of dielectric fluid, with routine evaporative losses and disposal creating recurring releases near workers, fenceline communities, and waters around data centers and disposal sites.

How EPA Must Conduct the Review

A second line of argument concerns EPA’s review process.  TSCA section 5 directs EPA to decide whether a new chemical presents an unreasonable risk “without consideration of costs or other nonrisk factors.” EPA announced in September 2025 that it would prioritize review of new chemicals intended for data-center projects, inviting manufacturers to seek that treatment under Executive Order 14318.  The applicant filed a request for priority review premised on an urgent national need for AI infrastructure, which the coalition contends is irrelevant to the risk determination.  Priority review, they argue, affects when EPA takes up a submission, not the standard it must apply.

Two related arguments target how EPA models exposure.  The comments say EPA cannot assume workers will wear protective equipment, because under the occupational hierarchy of controls such equipment is a last line of defense and, in any event, accounting for its use would violate TSCA by conflating risk evaluation with risk management.  They also argue that EPA must weigh aggregate exposures from many facilities and other reasonably foreseen uses in its analysis.  As an example, the comments claim that the substance is marketed for other cooling applications, including use in electric-vehicle batteries.

The Confidentiality Dispute

The comments separately challenge the applicant’s CBI redactions.  They contend that TSCA generally bars confidentiality claims over health and safety information, yet the filing withheld entire toxicity-profile slides, the toxicological section of the safety data sheet, the applicant’s occupational exposure assessment, and its list of prior substantial risk notices under TSCA Section 8(e).  Other redactions concern information available on Chemours’ website, the coalition argues.

These arguments coincide with litigation brought by Earthjustice-represented environmental groups, which contends that EPA systemically fails to disclose information in PMNs claimed as CBI when the covered information does not facially qualify as confidential.

The comment period for the notice of receipt of the PMN closed July 15, 2026.

Federal Legislation Would Deem 15 Chemicals Unsafe in Food Packaging

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On June 9, 2026, lawmakers introduced the No Toxic Chemicals in Food Packaging Act of 2026, which would ban 15 chemicals or chemical classes—including PFAS, ortho-phthalates, and bisphenol A—from food-contact use.  H.R.9231 was introduced by Rep. Jan Schakowsky (D-IL) and Rep. Rosa DeLauro (D-CT) and has been referred to the House Committee on Energy and Commerce.  The Senate companion, S.4724, was introduced by Sen. Richard Blumenthal (D-CT) and has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

Similar legislation was introduced in 2023, but that bill covered fewer substances and did not advance out of committee.

What the Bill Does

The bill amends the Federal Food, Drug, and Cosmetic Act (FFDCA) § 409 (21 U.S.C. § 348) by adding a new subsection (l) that deems 15 chemicals or chemical classes unsafe for use as food contact substances.  That designation is cross-referenced against FFDCA § 402(a)(2)(C), the adulteration provision, meaning food packaged or processed using these substances would be treated as adulterated under existing law.

The bill covers the following substances:

  • Any chemical belonging to the class of ortho-phthalates
  • Any chemical belonging to the class of PFAS
  • Bisphenol A, B, S, F, or AF or related compounds
  • Acrolein
  • Acrylamide
  • BHA (tert-Butyl-4-hydroxyanisole)
  • Chlorinated paraffins
  • 1,4-Dioxane
  • Asbestos
  • Benzene
  • Chloroform
  • Methylene chloride
  • Ethylene oxide
  • Formaldehyde
  • Styrene polymers

Three drafting choices are worth flagging.  First, a new subsection (l)(2) directs FDA to weigh potential adverse effects on “vulnerable populations”—defined broadly to include infants, pregnant women, workers, and residents of disproportionately exposed communities—when evaluating substitute substances proposed as alternatives to the banned fifteen.

Second, the bill includes an express savings clause preserving state and local authority to regulate food additives, including authority more stringent than the federal floor.  That non-preemption choice is notable given the growing number of states that have restricted or are considering restricting certain additives.

Third, the legislation expansively defines PFAS as any substance containing at least one fully fluorinated methyl or methylene carbon atom, which closely resembles the most recent Organisation for Economic Co-operation and Development (OECD) definition.

The new subsection would take effect two years after enactment, per the bill’s delayed-applicability clause.

Why It Matters Now

The bill arrives while FDA is already facing litigation pressure on two of the chemical classes it targets.  A coalition of advocacy groups is challenging FDA’s 2022 denial—reaffirmed on reconsideration in October 2024—of a petition to revoke authorizations for 28 ortho-phthalates, in litigation now pending before the D.C. Circuit.  Separately, a citizen petition seeking PFAS tolerances in food is the subject of an Administrative Procedure Act suit in the District of Arizona, where the court has continued proceedings pending FDA’s response.  As of this writing, neither matter has produced a ruling on the merits, and both postures could change before this bill reaches markup.

FDA has also launched a reassessment of one of the affected substances, BHA, on its own initiative.  The review, announced in February, will consider whether BHA is safe under its current conditions of use in food and as a food contact substance.  In addition, over a dozen states have already enacted prohibitions on the use of PFAS in food packaging.

Who’s Affected

Food and beverage manufacturers, packaging converters (particularly PFAS-treated paper and fiber products and phthalate-plasticized flexible packaging), and upstream chemical suppliers face the most direct reformulation exposure.  Grocery, retail, and food service companies would also inherit supply-chain risk from upstream suppliers.

New Mexico PFAS Labeling Rule Faces Appeal Over Free Speech, Agency Authority

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A docketing statement has been filed in a state-court challenge to New Mexico’s near-universal PFAS labeling requirements, finalized by the New Mexico Environmental Improvement Board (EIB) in April as part of a broader rule implementing the state’s PFAS Protection Act (HB 212).

The docketing statement, filed June 22, 2026, identifies four issues on appeal:

  1. First Amendment. The rule requires manufacturers to affix a PFAS label—an Erlenmeyer flask bearing the term “PFAS”—to products containing any substance meeting HB 212’s definition of PFAS.  The appellant argues that the definition is among the broadest in use by any government or regulatory body, and “encompasses substances whose status as PFAS is subject to robust scientific debate, compelling businesses to make untrue and misleading claims on their products.”
  2. Exceedance of statutory authority—exemptions. HB 212 expressly exempts sixteen categories of products from its prohibitions and reporting requirements.  The appellant contends that the rule nevertheless requires labeling for most of those exempt products, extending the rule’s reach beyond the enabling statute.
  3. Arbitrary deadline. The rule requires labels on products manufactured on or after January 1, 2027, less than nine months after the rule’s adoption.  According to the appellant, relabeling requires packaging redesign, legal and regulatory review, coordination with printers and suppliers, and production schedule alignment.  The administrative record showed manufacturers need at least 18 months to comply, but the EIB arbitrarily rejected that evidence, the appellant argues.
  4. Exceedance of statutory authority—fees. The rule imposes fees for PFAS reporting submissions, currently unavoidable use applications, and label waivers.  The appellant contends that HB 212 does not grant the EIB authority to impose fees.

The case is Diamond Vogel, Inc. v. New Mexico Environmental Improvement Board, No. A-1-CA-43483 (N.M. Ct. App.), filed 05/22/2026.

Minnesota Excludes Older Products from PFAS Reporting

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Minnesota has amended its PFAS reporting requirements to exclude products manufactured before July 1, 2023.

The amendment does not change what must be reported or when.  The reporting deadline remains September 15, 2026 (or December 14, 2026, for manufacturers who request and receive a 90-day extension).

Under the revised requirements, manufacturers or their representatives must report products that:

  • Were manufactured after July 1, 2023
  • Are sold, offered for sale, or distributed in Minnesota
  • Contain intentionally added PFAS

In an email, the Minnesota Pollution Control Agency (MPCA) said the revision “is the result of the MPCA’s conversations with product manufacturers, especially those responsible for replacement parts made years ago that are still available for purchase.”

The amendment was included in omnibus Health and Human Services supplemental appropriations legislation (SF4612), signed into law on May 26, 2026.

For more on the reporting requirements, see our MN PFAS archive.

New Mexico PFAS in Products Rule Appealed

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A legal challenge has been filed in state court against New Mexico’s PFAS in products rule, which was finalized last month.

As noted in a recent Chemical Watch article, concerns include product labeling issues and timelines that emerged during the rulemaking process.  The final rule’s labeling requirements apply to all products containing intentionally added PFAS manufactured on or after January 1, 2027, with narrow exceptions.

More details will become available after the appellant files a docketing statement, due within 30 days of the suit’s filing on May 22, 2026.  The notice of appeal can be found here.

For more on the rulemaking, view our New Mexico PFAS archive.

New Jersey Considers Expanding PFAS Ban to Apparel

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New Jersey lawmakers are weighing a ban on PFAS in apparel, which has already passed the state’s upper house unanimously.

The bill, S1281, would prohibit the manufacture or sale of apparel containing intentionally added PFAS two years after passage.  Apparel is defined broadly, encompassing items such as diapers, footwear, and outdoor apparel for severe wet conditions.  PPE, military apparel, and protective apparel designed to be used for the safe operation of a motorcycle or off-highway vehicle would be exempt.

S1281 builds on legislation New Jersey enacted earlier this year—the Protecting Against Forever Chemicals Act—which prohibits intentionally added PFAS in cosmetics, carpets, and food packaging.  The apparel bill would be integrated into that same framework, inheriting its definition of PFAS as “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” as well as its exemption for technically unavoidable trace quantities.

The Protecting Against Forever Chemicals Act was signed into law on January 12, 2026.  Its sales prohibitions and a PFAS labeling requirement for cookware will take effect on January 12, 2028.

S1281 passed the New Jersey Senate on March 23, 2026, and referred to the Assembly.  The companion Assembly bill, A5048, was introduced May 11, 2026.

Senator Introduces CRA Resolution to Nullify EPA’s PFAS Reporting Extension

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Update (August 28, 2026)

On August 5, 2026, a motion to proceed to consideration of the resolution failed in the Senate 48-50.  Sen. Susan Collins (R-ME) joined all Democrats in supporting the motion.

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Senator Sheldon Whitehouse (D-RI) has introduced a joint resolution to disapprove EPA’s April extension of the start PFAS Reporting Rule’s reporting period start date.

The Congressional Review Act resolution, filed as S.J.Res. 187 on April 27, 2026, would immediately nullify EPA’s extension rule if passed.  The resolution currently has no cosponsors.

EPA’s extension pushed the start of the reporting period to January 31, 2027, or 60 days following the effective date of amendments narrowing the rule’s scope, whichever is earlier.  EPA proposed those amendments in November 2025, which would add exemptions for de minimis concentrations and imported articles, among others.

The extension was published on April 13, the same day the reporting period was scheduled to open.  EPA had already delayed the start of the period twice before, citing technical difficulties.

The PFAS Reporting Rule is a one-time PFAS reporting obligation under TSCA section 8(a)(7) for persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022.  More on the rule is available in our archive.

Texas AG Investigates Lululemon Over PFAS Concerns

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On April 13, 2026, Texas Attorney General Ken Paxton announced the issuance of a civil investigative demand against Lululemon as part of an investigation into the potential presence of PFAS in the activewear company’s apparel.

The investigation will examine whether Lululemon has misled consumers about the safety, quality, and health impacts of its products, prompted by “emerging research and consumer concerns” that “raised questions about the potential presence of certain synthetic materials and chemical compounds in their apparel.”  According to the press release, the company’s health-conscious customers would not expect PFAS in its products given Lululemon’s sustainability- and performance-focused marketing.

As part of the investigation, the office of the attorney general says it will review “the company’s Restricted Substances List, testing protocols, and supply chain practices to determine whether Lululemon’s products comply with its stated safety standards.”

Three days later, on April 16, Lululemon published a webpage entitled “Created without PFAS: What to know about lululemon’s products,” stating that the company does not use PFAS in its products today and requires vendors to conduct regular testing.  “Our ongoing focus is to help prevent the unintentional reintroduction of PFAS into our products through ongoing testing, monitoring, and collaboration with suppliers and third parties,” the page says.

The webpage also links to Lululemon’s restricted substances list, which sets a 50 ppm limit on all PFAS as measured by total organic fluorine and more stringent limits on specific compounds such as PFOS and PFOA.

Minnesota Delays PFAS Reporting Requirements

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Minnesota has extended the deadline for manufacturers to file initial reports on intentionally added PFAS in products from July 1 to September 15, 2026.

According to the Minnesota Pollution Control Agency (MPCA), the extension is intended to give manufacturers more time to:

  • Establish agreements with suppliers to report on their behalf as allowed in state rule
  • Become familiar with the reporting system, known as PRISM
  • Utilize support from the MPCA

Manufacturers may also request a 90-day extension request for the initial reporting requirement, which now corresponds with a deadline of December 14, 2026.

Additional information, including guidance on using PRISM, is available on the MPCA website.  Further details on the reporting requirements, which were finalized last December, are covered in a previous post.

MPCA is also developing new rules governing currently unavoidable uses of PFAS.  Information on that rulemaking is discussed in the latter half of a previous post.

PFAS Reporting Rule Delayed Again Amid Ongoing Rulemaking

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EPA has delayed the start of the PFAS Reporting Rule reporting period for the third time as the agency finalizes amendments that would narrow the rule’s scope.

The reporting period will now begin January 31, 2027, or 60 days following the effective date of the final rule implementing the amendments, whichever is earlier.  EPA says that it expects to release the final rule “well before” the January 31, 2027, fallback date.

The extension will be published in the Federal Register on April 13, 2026, the same day the reporting period had been scheduled to begin.

Background

Promulgated under section 8(a)(7) of the Toxic Substances Control Act (TSCA), the PFAS Reporting Rule requires all persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022 to report chemical information to EPA.  For most manufacturers and importers, the original reporting deadline was May 13, 2023.  However, EPA delayed the start of the reporting period in 2024 and again in 2025, citing technical difficulties with the reporting tool.

In the 2025 postponement, EPA also signaled that it was considering reopening the rule’s reporting requirements.  Subsequently, in November 2025, EPA released a proposed rule introducing various exemptions to the reporting requirements.  These include exemptions for mixtures and products containing de minimis PFAS concentrations, imported articles, and certain byproducts and impurities.

More on the PFAS Reporting Rule can be found in our topic archive.