
Daniel T. McKillop
Partner
201-896-7115 dmckillop@sh-law.comFirm Insights
Author: Daniel T. McKillop
Date: August 6, 2024
Partner
201-896-7115 dmckillop@sh-law.comThe Environmental Protection Agency (EPA) has finalized reporting and recordkeeping requirements for Per- and Polyfluoroalkyl Substances (PFAS) under the Toxic Substances Control Act (TSCA). In accordance with obligations under TSCA, the EPA is requiring any person that manufactures (including import) or has manufactured (including imported) PFAS or PFAS-containing articles in any year since January 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures, and hazards.
For most impacted companies, the submission deadline is May 8, 2025. For a smaller number of impacted companies, the deadline is November 10, 2025. While these deadlines may seem far off, the time to start preparing is now.
As discussed in prior articles, the EPA continues to increase oversight over PFAS, with several significant rulemakings in recent years. According to the EPA, its Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (Final Rule) aims to better understand who is using PFAS, how they are being used, and in what quantities. While this is a laudable goal, the new reporting requirement creates significant compliance burdens for impacted entities.
TSCA section 8(a)(7) specifically required the EPA to promulgate a rule requiring each person who has manufactured (including imported) PFAS in any year since 2011 to report certain data to EPA, including:
The EPA finalized the PFAS reporting rule on October 11, 2023. Below are several key provisions that potentially impacted businesses must understand:
Most submitters have until May 8, 2025 (18 months following the effective date of the final rule) to submit their information to the EPA. Small manufacturers reporting exclusively as article importers have until November 10, 2025 (24 months following the effective date of the final rule) to report.
In preparing to comply with the new PFAS reporting obligations, impacted entities must devise a comprehensive due diligence protocol. To help ensure that this protocol stands up to legal scrutiny, it should be consistent across the organization and any subsidiaries. For example, if reasonable estimates will be used when exact calculations are unavailable, the methodology used should be the same across all divisions, departments, and subsidiaries. Care must also be taken to fully document the due diligence process.
Covered entities should also be prepared to address the consequence of their PFAS reporting disclosures, even if the company name is kept confidential in a submission. For instance, some companies may have been unaware that their products contain PFAS and may now need to disclose this information to customers, retailers, shareholders, employees, insurers, investors, and others.
Given the significant burden of compliance, the first step for any entity is to determine if you are subject to the new rule. If so, it is imperative to devise an action plan as soon as possible. For assistance navigating these significant new obligations please contact Daniel McKillop, a member of the Scarinci Hollenbeck Environmental Law Group.
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