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April 26, 2024 - Consumer Products, Environmental Law

Now is the Time for PFAS Manufacturers and Importers to Prepare for TSCA's Retrospective Reporting Requirements

Per- and Polyfluoroalkyl Substances

Manufacturers and importers of Per- and Polyfluoroalkyl Substances (“PFAS”) must report information regarding all PFAS produced or imported since January 1, 2011, by either May 5, 2025, or November 10, 2025.

The EPA recently finalized a rule requiring certain reporting and recordkeeping for PFAS under section 8(a)(7) of the federal Toxic Substances Control Act (“TSCA”). This rule requires any entity that manufactures or has manufactured PFAS or PFAS-containing articles in any year since January 1, 2011, to electronically report certain information to the EPA.

Under TSCA, the term “manufacture” means to manufacture, produce, or import for commercial use. Thus, importers of PFAS or PFAS-containing articles are also required to report under this rule, but mere processors, distributors, users, and disposers of PFAS or PFAS-containing articles need not report. Companies should be aware, however, that this rule also covers incidental manufacturing and byproducts. If a company knows that it is manufacturing or has manufactured PFAS or PFAS-containing articles, or such information is reasonably ascertainable, it must report.

There is no minimum volume or concentration exemption—any amount of PFAS known is reportable.

Though the initial deadlines are over a year away, given the broad, retrospective reach of the rule, companies within scope of the rule should start preparing now for compliance. For many manufacturers and importers, complying with the rule will require the time-intensive task of gathering data from historical records.

The rule requires companies to report, for each individual PFAS and for each individual year in which any PFAS was produced or imported since January 1, 2011, information including:

  • The covered common or trade name, chemical identity, and molecular structure of each chemical substance or mixture;
  • Categories or proposed categories of use for each substance or mixture;
  • Total amount of each substance or mixture manufactured or processed, the amounts manufactured or processed for each category of use, and reasonable estimates of the respective proposed amounts;
  • Descriptions of byproducts resulting from the manufacture, processing, use, or disposal of each substance or mixture;
  • All existing information concerning the environmental and health effects of each substance or mixture;
  • The number of individuals exposed, and reasonable estimates on the number of individuals who will be exposed, to each substance or mixture in their places of work and the duration of their exposure; and
  • The manner or method of disposal of each substance or mixture, and any change in such manner or method.

Most entities will have until May 8, 2025, to submit the required information, 18 months following the effective date of the final rule. Small manufacturers reporting exclusively as article importers will have until November 10, 2025, to submit the required information, 24 months following the effective date of the final rule. There is then a five-year record keeping period after submission to support future EPA activities informed by the data it receives pursuant to this rule.

The EPA has non-exhaustively identified at least 1,462 PFAS covered under this rule, 770 of which are actively circulated in U.S. commerce.

MoFo’s team of environmental attorneys regularly advises clients on compliance with TSCA and related regulations and are ready to assist companies that produce or import PFAS to comply with the EPA’s reporting and recordkeeping requirements.