New EPA reporting rule is expansive, including companies that may not be familiar with Toxic Substances Control Act compliance
In September 2024, the Environmental Protection Agency ("EPA") announced an extension to the reporting period for its new Per- and Polyfluoroalkyl Substances ("PFAS") reporting and recordkeeping requirements under the Toxic Substances Control Act ("TSCA").[1]
As extended, the EPA is now requiring any person that manufactures (including imports) or has manufactured (including imported) PFAS[2] or PFAS-containing articles in any year since January 1, 2011, to electronically report information regarding the article or PFAS uses, production volumes, disposal, exposure, and hazards by January 11, 2026.
This reporting rule is expansive, and its reach includes companies that may not have had to address TSCA compliance before. Companies that import PFAS-treated products or products in packaging that contain or have been treated with PFAS will need to report before the deadline. PFAS are ubiquitous in hundreds of everyday products including cookware, waterproof fabrics used for raincoats and luggage as well as the paint used on some zippers.[3] Considering the number of companies that are potentially covered by these requirements and the long look-back period, it is critical that covered entities assess their obligations as soon as possible.
Who Must Report
These requirements apply to all "manufacturers," which the rule defines to include entities that import PFAS and PFAS-containing articles in addition to those involved in domestic production and manufacturing. What makes this reporting rule particularly sweeping is its inclusion of "PFAS-containing articles," which generally include all manufactured goods and finished products that have been treated with certain PFAS to, for example, repel water or stains, prevent sticking, or strengthen the packaging or product. As a result, many more entities, including small businesses, may be covered by this rule than is typical for TSCA regulations.
Given the EPA's extension until January 11, 2026, and the broad coverage of these requirements, covered entities that manufacture or have imported products that contain PFAS should begin reviewing their records as soon as possible for any products manufactured or imported during the reporting window that could be included in these reporting and recordkeeping requirements. Reporting is done through the EPA's Central Data Exchange ("CDX"); early registration and preparation for that database's use is highly recommended.
[1] See 40 CFR Part 705; see also 89 FR 72336.
[2] The EPA has defined PFAS broadly in this rule to include any chemical substances or mixture that contain one the following three structures:
- R-(CF2)-CF(R')R", where both the CF2 and CF moieties are saturated carbons;
- R-CF2 OCF2 -R', where R and R' can either be F, O, or saturated carbons; and
- CF3 C(CF3)R'R", where R' and R" can either be F or saturated carbons.
While the EPA has published a list of PFAS that meet the above structural definition (TSCA 8(a)(7) PFAS Chemicals - List Details - SRS | US EPA), the EPA does not purport to have identified all potentially covered PFAS that could be included in these requirements and potentially covered entities should carefully review their records to determine if they are required to report.
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