The Environmental Protection Agency (EPA) has extended the deadline for reporting on per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act. Our Environment, Land Use & Natural Resources Group discusses how the eight-month extension impacts businesses.
- The EPA has moved the reporting and recordkeeping deadlines from November 12, 2024 to July 11, 2025
- Businesses with complex supply chains need to thoroughly assess all potential sources of PFAS in their operations
- All affected businesses should proactively work to meet the new deadlines to ensure compliance and avoid penalties
On September 5, 2024, the Environmental Protection Agency (EPA) published a notice in the Federal Register extending the Toxic Substances Control Act (TSCA) reporting and recordkeeping deadlines for per- and polyfluoroalkyl substances (PFAS). The original reporting date for the rule was November 12, 2024. The EPA has extended the deadline by eight months to July 11, 2025.
The extension is due to increased agency responsibilities, technical difficulties, and budgeting shortfalls, according to the EPA. Businesses subject to this rule will now have additional time to come into compliance and make certain they are collecting accurate data on the manufacturing and importing of PFAS.
Despite this extension, businesses must remain diligent and thorough in their data collection and reporting efforts.
TSCA PFAS Reporting and Recordkeeping Rule
On October 11, 2023, the EPA published the final rule on the Toxic Substances Control Act reporting and recordkeeping requirements for PFAS. The rule requires each person that has manufactured (including imported) PFAS (as defined) or PFAS-containing articles for a commercial purpose since January 1, 2011 to provide information to the EPA on the uses, production volumes, disposal, exposures, and hazards. This reporting must include any amount of PFAS that were “known to or reasonably ascertainable by” the manufacturer, even if added accidentally or in trace amounts.
The EPA has identified the following nonexhaustive list of North American Industrial Classification System (NAICS) codes of potentially affected entities:
- Construction (NAICS code 23)
- Manufacturing (NAICS codes 31 through 33)
- Wholesale trade (NAICS code 42)
- Retail trade (NAICS codes 44 through 45)
- Waste management and remediation services (NAICS code 562)
This rule does not require reporting on substances that are excluded from the definition of “chemical substance” in TSCA section 3(2)(B), such as certain pesticides, medical devices, foods, and cosmetics.
Change to Submission Period
On September 5, 2024, the EPA amended the rule by shifting the start of the data submission period from November 12, 2024 to July 11, 2025, with a corresponding change made to the end of the submission timeline.
According to the EPA, the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act considerably expanded the scope of the EPA’s responsibilities under the TSCA. The agency also claims that its appropriated resources for implementing the TSCA have not kept pace with the agency’s activities and obligations under the amended TSCA. These responsibilities and reduced funding have forced the EPA to delay the original reporting start date of November 12, 2024.
In the direct final rule, the EPA explains that the amount of data expected to be submitted is unprecedented due to the number of chemicals and years of data for which this reporting requirement applies, highlighting the critical need to ensure the fidelity of the process and the data, which can only be achieved by delaying the start of the reporting period. In fact, the EPA is not confident that its electronic reporting platform can currently manage this volume of materials, and an industry testing period is required.
The EPA is unable to accept and confirm receipt of reported PFAS information at the original reporting start date. To make sure that the infrastructure underlying the data collection process is working optimally, the EPA is extending the start of the reporting period by eight months—ensuring, ultimately, public access to this information.
Implications for Regulated Businesses
The EPA’s extension should bring temporary relief to businesses affected by this unprecedented rule. The extension is certain to benefit businesses by giving them additional time to prepare and submit the required PFAS data.
Despite this relief, businesses should remain proactive in collecting the necessary information because the rule mandates reporting all data “known or reasonably ascertainable” by the organization. This requires a comprehensive internal review to make certain all relevant data is captured.
The rule’s broad scope is significant. It includes PFAS present as impurities, byproducts, or in trace amounts, unlike many state laws that focus only on intentionally added PFAS. Even trace amounts of PFAS in a single product or component could trigger reporting obligations, making it critical for businesses to carefully assess all potential sources of PFAS in their operations.
While the extension reduces the immediate pressure of the original deadline and minimizes the risk of incomplete data submissions due to technical delays, it also underscores the need for thorough due diligence. Businesses, particularly those with complex supply chains, may need several months to collect and verify the required data. It is crucial that companies continue their efforts to meet the extended deadlines to ensure full compliance and avoid penalties.
[View source.]
