Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Complying With EPA’s New PFAS Reporting and Recordkeeping Requirements

Author: Daniel T. McKillop

Date: August 6, 2024

Key Contacts

Back
Complying With EPA’s New PFAS Reporting and Recordkeeping Requirements

The 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.

EPA Stepping Up PFAS Regulation

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 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;
  • The 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.

PFAS Reporting Obligations Under Final Rules

The EPA finalized the PFAS reporting rule on October 11, 2023. Below are several key provisions that potentially impacted businesses must understand:

  • PFAS Definition: Rather than providing a discrete list of chemicals, the EPA has established a structural definition under which PFAS is defined as including at least one of these three structures: R-(CF2)-CF(R′)R′′, where both the CF2 and CF moieties are saturated carbons; R–CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons; CF3C(CF3)R′R′′, where R′ and R′′ can either be F or saturated carbons. The EPA has identified at least 1,462 PFAS under this structural definition.
  • Reporting Threshold: There is no minimum reporting threshold or concentration for PFAS under the Final Rule. Any amount of PFAS manufactured (including imported) for commercial purposes in any year since January 1, 2011, is reportable.
  • Reporting Entities: Anyone who has manufactured (including imported) a PFAS for a commercial purpose in any year since January 1, 2011, is covered by the Final Rule. Notably, the term ‘‘manufacture for a commercial purpose’’ is not limited to intentional PFAS manufacturing, but also includes the coincidental manufacture of PFAS as byproducts or impurities. The Final Rule does not apply to entities who have only processed, distributed in commerce, used, and/or disposed of PFAS. For instance, if a wastewater treatment plant is simply processing PFAS they received domestically, and not also manufacturing PFAS, including as a byproduct, then the entity is not covered by the rule. Additionally, non-commercial R&D activities, such as science experimentation, research, or analysis conducted by academic, government, or independent non-profit research organizations, are also excluded.
  • Definition of “Importer”: Because the Final Rule requires manufacturers and importers to report PFAS, the definition of “importer” is significant. Under the Final Rule, importer means: (1) any person who imports any chemical substance or any chemical substance as part of a mixture or article into the customs territory of the United States, and includes: (i) The person primarily liable for the payment of any duties on the merchandise, or (ii) An authorized agent acting on his behalf. (2) Importer also includes, as appropriate: (i) The consignee. (ii) The importer of record. (iii) The actual owner if an actual owner’s declaration and superseding bond have been filed in accordance with 19 CFR 141.20. (iv) The transferee, if the right to draw merchandise in a bonded warehouse has been transferred in accordance with subpart C of 19 CFR part 144.
  • “Known or Reasonably Ascertainable” Information: Information must be reported to the extent it is known or reasonably ascertainable, which includes all information in a person’s possession or control and all information a reasonable person similarly situated may be expected to possess, control, or know. According to the EPA’s Frequently Asked Questions document, when determining whether they have imported a PFAS-containing article, an article importer should consider information such as their knowledge of the material and chemicals in the articles they have imported, existing records in their company related to those imports (e.g., import records, communications with suppliers, SDSs, invoices or receipts), knowledge of the supplier’s operations or materials sources, and information gleaned from outside sources (e.g., conferences, technical publications). The EPA has also acknowledged that this standard “carries with it an exercise of due diligence, and the information-gathering activities that may be necessary for manufacturers to achieve this reporting standard may vary from case to case.”
  • Required Reporting: Entities subject to the EPA’s Final Rule must submit a report that includes, for every year since January 1, 2011, detailed information on manufactured or imported PFAS, including company and site information, chemical-specific information, categories of use, total amounts manufactured/imported of each PFAS (including the amounts manufactured in each calendar year for each category of use), number of individuals exposed, byproducts and disposal information, and health and environmental effects. 
  • Recordkeeping Obligations: Entities subject to the Final Rule must retain records that document information reported to EPA for five years, which is calculated from the last date of the information submission period.
  • Penalty for Violations: Separate violations of the TCSA reporting requirement are subject to a maximum penalty of $46,989 per violation per day, and this amount will be adjusted upwards for inflation no later than 2025.

PFAS Reporting Timeline

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.

Additional Considerations for Impacted Entities

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.

Next Steps for Impacted Entities

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Stablecoins and the GENIUS Act: How New Global Rules Are Reshaping Compliance post image

Stablecoins and the GENIUS Act: How New Global Rules Are Reshaping Compliance

Stablecoins Leave the Grey Zone Stablecoins were supposed to be the “boring” part of crypto: digital dollars that just work. Yet for years they have lived in a regulatory no-man’s-land, classified one day as securities, the next as commodities, and sometimes as something regulators had not even named yet. That uncertainty is finally starting to […]

Author: Bryce S. Robins

Link to post with title - "Stablecoins and the GENIUS Act: How New Global Rules Are Reshaping Compliance"
Don’t Overlook the Importance of Business License Management post image

Don’t Overlook the Importance of Business License Management

If you operate a business without the proper license, you risk fines, insurance issues, reputational harm, and even business closure. Even innocent mistakes, like forgetting to renew a license, can have significant consequences, such as losing your lawsuit for payment of services that are unlicensed, which makes it imperative to have business license management procedures […]

Author: Dan Brecher

Link to post with title - "Don’t Overlook the Importance of Business License Management"
Failing to Comply With NJ Rent Control Exemption May Prove Costly post image

Failing to Comply With NJ Rent Control Exemption May Prove Costly

What Developers Need to Know About New Jersey’s Rent Control Exemption Law to Ensure Entitlement to Exemption for Newly Constructed Multi-family Housing.  A property owner in Jersey City is facing a $400 million federal class action lawsuit alleging that the landlord did not follow the procedural steps required to be eligible for exemption from local […]

Author: Patrick T. Conlon

Link to post with title - "Failing to Comply With NJ Rent Control Exemption May Prove Costly"
Crypto Securities Law: When Tokens Become Investment Contracts post image

Crypto Securities Law: When Tokens Become Investment Contracts

The application of traditional federal securities laws to crypto assets continues to evolve. In some cases, the Securities and Exchange Commission (SEC) considers tokens and other digital assets to be securities. This makes them subject to federal securities law, including the Securities Act of 1933 and the Securities Exchange Act of 1934. This classification has […]

Author: Bryce S. Robins

Link to post with title - "Crypto Securities Law: When Tokens Become Investment Contracts"
The Due Diligence Process for NY Condominiums and Cooperatives post image

The Due Diligence Process for NY Condominiums and Cooperatives

While the New York City real estate market can be extremely competitive, moving too quickly often backfires. Before purchasing a condominium or cooperative in New York City, it is important to do you homework. Purchasing property in NYC can involve a dizzying number of legal issues. These include condo and co-op rules, rent restrictions, and […]

Author: Jesse M. Dimitro

Link to post with title - "The Due Diligence Process for NY Condominiums and Cooperatives"
Smart Contract Legal Issues: Drafting Agreements for Blockchain post image

Smart Contract Legal Issues: Drafting Agreements for Blockchain

Smart contracts feature a unique blend of legal agreement and technical code. This innovation has the potential to reshape how business is conducted. At the same time, smart contract legal issues around enforceability, jurisdiction, identity, and compliance are common. The legal framework for these self-executing agreements is still evolving. What Are Smart Contracts? Smart contracts, […]

Author: Bryce S. Robins

Link to post with title - "Smart Contract Legal Issues: Drafting Agreements for Blockchain"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!