TSCA PFAS Final Rule Released

Section 8(a)(7) Reporting and Recordkeeping

The Environmental Protection Agency (EPA) released the final rule for reporting and recordkeeping for Per- and Polyfluoroalkyl Substances (PFAS) on September 28, 2023, as part of the Toxic Substance Control Act (TSCA). The goal of this ruling is for the EPA determine the quantities and use of PFAS in the United States.

The new ruling was created to help the EPA gather data on “forever chemicals”. The current list of PFAS chemicals contains over 1,460 PFAS chemicals.

The definition of “PFAS” was another concern raised during the rule making process. The proposed rule used a “structural definition” of PFAS as opposed to a discrete chemical list, leading some industry observers to note that entities without sophisticated knowledge of the chemistry of their products may not be aware that certain articles are covered. EPA acknowledges the concern in the final rule but retains the same, albeit slightly expanded, “structural definition” approach to avoid limiting the scope of information gathered. [1]

Background

According to JDSUPRA, "Following several extensions to its statutory deadline, the US Environmental Protection Agency (EPA) released its final Toxic Substances Control Act (TSCA) Reporting and Recordkeeping Requirements for Per- and Polyfluoroalkyl Substances (PFAS) on September 28, 2023. While the final rules largely track the draft rules released in June 2021, they include changes to address concerns raised during the comment period about the rule’s potential breadth and associated compliance burdens and a slightly expanded definition of what PFAS are covered by the new rule."

Final Ruling Requirements

The TSCA PFAS final rule applies to PFAS manufacturers and importers (importers of products referred to as “articles”) between January 1, 2011, and September 28, 2023, as well as all use after that date.

Reporting includes production volumes, PFAS uses, exposures, disposals, and associated hazards. All manufacturers have 18 months to report the use of PFAS to the EPA. The only exception is small manufacturers who are not subject to the same reporting requirements. They likely will have 24 months.

Collecting long term data on PFAS chemicals enables local, state, and federal governments to enact better policies and laws to minimize the negative side effects from these chemicals.

How This Impacts Manufacturers

Major challenges to reporting include the ability to collect material information from suppliers, especially those overseas not in scope of chemical regulations. The EPA states that U.S.companies must make “reasonable efforts” to determine if PFAS is in any product they manufacture or sell.

As with all compliance regulations, understanding what constitutes due diligence to the regulation is important. All companies must meet compliance obligations in order to continue manufacturing and selling product in the United States. Companies must have documentation that validates material content, supplier declarations, data collection practices, and systems for managing and controlling compliance.

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Links

National Law Review - EPA Releases Final TSCA Section 8(a)(7) Reporting Rule for PFAS

EPA : Pre-Publication Notice Toxic substance Control Act Reporting

Arnold & Porter - EPA Issues Exhaustive Requirements for Collecting Detailed Information on PFAS