USA: EPA published PFAS reporting rule under TSCA

OCTOBER 2023 - ELECTRICAL AND ELECTRONICS, HARDLINE, SOFTLINE, TOYS AND CHILDREN'S PRODUCTS

The United States (US) Environmental Protection Agency (EPA) published the final rule¹ for one-time reporting and recording keeping requirements for per- and polyfluoroalkyl substances (PFAS) under Toxic Substances Control Act (TSCA) Section 8(a)(7). The reporting will start on 12 November 2024.

Companies that manufacture or import for each PFAS, for each year since 1 January 2011 are obliged to submit information to EPA. This rule is also applicable to companies importing articles containing any amount of PFAS. Reports are due 18 months following the effective date, but small companies will have an additional 6 months to report.

According to the National Defense Authorization Act (NDAA) for Fiscal Year 2020², EPA must publish a rule to collect PFAS data information about chemical identity, uses, volumes made and processed, byproducts, environmental and health effects, worker exposure, and disposal. It helps EPA to better characterize the sources and quantities of manufactured or imported PFAS in the US. The detailed requirements can be found in Table A.

PFAS are a group of man-made articles which have been in use since the 1940s. These substances offer characteristics such as heat, stain, water, and electrical resistance, which make them useful in various commercial and industrial sectors. However, some PFAS are harmful and persistent chemicals. As a result, various countries across the globe are proposing legislation to control the use of PFAS.

Article importers may find this rule challenging to identify the use of PFAS in supply chains. EPA will publish a Small Entity Compliance Guide³. A spreadsheet⁴ containing the reporting requirements is also available.

Table A. Summary of PFAS reporting and recordkeeping under TSCA Section 8(a)(7)

Parameters	Requirement
Definition of PFAS substances	A chemical substance or mixture containing a chemical substance that structurally contains at least one of the following three sub-structures: (1) R-(CF2)-CF(R’)R’’, where both the CF2 and CF moieties are saturated carbons; (2) R-CF2OCF2-R’, where R and R’ can either be F, O, or saturated carbons; (3) CF3C(CF3)R’R’’, where R’ and R”” can either be F or saturated carbons.
Covered companies	Companies that manufacture (including import) any PFAS at any period from January 1, 2011, through the end of the last calendar year prior to November 13, 2023, for commercial purposes. Note: Imported articles are also covered. This includes PFAS present in mixtures or articles even as byproducts or impurities.
Reporting information	A) PFAS substances’ manufacturers or importers to the US Company and plant site information; Chemical-specific information: common or trade name of the chemical, CAS no.; Categories of use and concentration ranges; Manufactured/imported amounts; Byproduct reporting; Environmental and health effects; Worker exposure data; Disposal data. B) PFAS-containing article importers (Streamlined report form) Company and plant site information; Chemical-specific information: common or trade name of the chemical; Categories of use and estimated maximum concentration; Imported article production volume; Additional article data. Remarks: A) If manufacturers do not know nor can reasonably make estimates for certain data elements, except for production volume, they may indicate such information as “Not Known or Reasonably Ascertainable (NKRA). B) EPA promulgated streamlined reporting obligations for manufacturers (including importers) of R&D substances below 10 kilograms. Details can be referred to § 705.18(b).
Record keeping	Relevant records must be retained for a period of 5 years beginning on the last day of the submission period.
Timeline of reporting	All reports must be submitted through EPA’s central data exchange (CDX) portal⁵. The submission period will begin one year following 13 November 2023, and last for six months: 12 November 2024, through 8 May 2025. Small manufacturers (as defined at 40 CFR 704.3) have 12 more months to report: 12 November 2024, through 10 November 2025.

[1] Federal Register

[2] National Defense Authorization Act (NDAA) for Fiscal Year 2020

[3] TSCA 8a7 Small Entity Compliance Guide

[4] Data elements about the PFAS reporting requirements

[5] EPA CDX portal

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