The US Environmental Protection Agency (EPA) published on January 26, 2024 a list of specific per- and polyfluoroalkyl substances (PFAS) that trigger reporting requirements under EPA’s recently promulgated Toxic Substances Control Act (TSCA) Section 8(a)(7) PFAS reporting rule. The list is intended to clarify the chemicals that EPA considers PFAS to help the regulated community identify which manufactured or imported PFAS chemicals and PFAS-containing articles are subject to the reporting requirements.
The reporting rule, which was finalized in September 2023 and published in the Federal Register on October 11, 2023, will impact businesses engaged in any form of importing or manufacturing, given both the breadth of the rule and the ubiquity of PFAS chemicals in manufactured and imported products.
The rule requires that regulated entities submit a retrospective report providing information relating to the manufacture and import of PFAS chemicals for each year in which PFAS or PFAS-containing articles were manufactured or imported between January 1, 2011 and December 31, 2022.
Because the rule does not contain exemptions for small businesses, de minimis usage, or reporting on finished end-use articles (as opposed to chemical products), it is anticipated that many of the entities falling under the rule’s purview will have never before faced similar reporting obligations and may require more guidance than the text of the regulations offer. EPA appears to have recognized this and recently announced that it is working on additional guidance concerning the implementation of the new TSCA reporting rule, which it hopes to release in summer 2024.
Guidance on which PFAS qualify under the reporting rule is particularly important because the rule uses a “structural definition” of PFAS rather than a discrete chemical list. [1] In other words, it is up to regulated entities to determine whether any chemical substance or mixture used in a manufactured or imported article meets the rule’s technical definition and must be reported to EPA.
That determination will in many instances require specialized knowledge that may not be readily accessible to some regulated entities. The newly published list is an effort to reduce some of that ambiguity and put regulated entities on alert as to particular PFAS that fall under the reporting obligations.
The new list identifies “PFAS chemicals identified in CompTox [an online database of chemical compound, toxicity, and exposure information maintained by EPA] and on the TSCA Inventory as meeting the TSCA [Section] 8(a)(7) data collection structural definition.” While the list can be used to assist potentially affected entities, EPA cautions that it is not exhaustive and that chemicals not on the list may still trigger reporting obligations.
In fact, there are estimated to be thousands of PFAS that could trigger reporting obligations that are not on EPA’s list, and more may be discovered in the future. Adding to the uncertainty, EPA has previously stated that the number of PFAS chemicals meeting the rule’s definition is 1,462, yet the published list contains 1,224 individual chemicals—611 whose specific identities are claimed to be confidential, and 613 that are not.
Pending further clarification from EPA, any entity that has manufactured or imported any product that could conceivably contain a PFAS chemical during the 2011-2022 reporting window would be well advised to proceed with caution and seek the input of experts as to the identification of covered PFAS chemicals, particularly if there is any ambiguity as to whether a particular PFAS chemical not on the list meets the structural definition.
The PFAS list is published on EPA’s website and may be accessed here. The deadline to submit PFAS reports under the TSCA Section 8(a)(7) reporting rule is May 8, 2025, or November 10, 2025 for entities that meet certain conditions.
[1] For purposes of the reporting rule, a PFAS chemical is “any chemical substance or mixture containing a chemical substance that structurally contains at least one of the following three sub-structures:
- R-(CF2)-CF(R′)R″, where both the CF2 and CF moieties are saturated carbons.
- R-CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons.
- CF3C(CF3)R′R″, where R′ and R″ can either be F or saturated carbons.”
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