On September 28, 2023, the U.S. Environmental Protection Agency (the “EPA”) finally finalized its rule requiring the reporting and recordkeeping of per- and polyfluoroalkyl substances (“PFAS”). The rule was posted on October 10, 2023, and provides the details of what is required to comply with the rule. This article will provide a high-level summary of the who, how, what, and when of this new rule in an effort to provide a basic guideline of what is expected for those who deal with and work with PFAS.
Who is subject to the rule?
From the outset, one can tell that it is very broad. The rule applies to anyone who has manufactured[1] PFAS for a commercial purpose “at any time since January 1, 2011.” The most likely affected industries include those in the construction, manufacturing, wholesale trade, retail trade, and waste management industries.
How is it to be reported?
The proposed rules do not appear to provide many details on this front. It simply says that a report must be filed with the Administrator of the Environmental Protection Agency for each year since January 1, 2011. However, it appears that the EPA will provide a publicly available spreadsheet containing the reporting requirements, which will allow for a more streamlined style of report.
What PFAS does this apply to?
The EPA defines PFAS as any compound that includes at least one of these three structures:
- R-(CF2)-CF(R′)R″, where both the CF2and CF moieties are saturated carbons;
- R–CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons; and
- CF3C(CF3)R′R″, where R′ and R″ can either be F or saturated carbons.
What must be reported?
The contents of the report appear to be rather robust. Each entity that manufacturers PFAS must report:
- The common or trade name, chemical identity and molecular structure of each chemical substance or mixture for which a report is required;
- 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.
When must it be reported?
The rule provides that the reports are due to the EPA within 18 months of the final rule’s effective date. The effective date is November 13, 2023, which means the report by date is May 7, 2025.
However, there is a six (6) month extension period for small businesses that are importing PFAS contained in articles. Therefore, small businesses that meet this criteria need to report by November 10, 2025.
Other points of interest
- Businesses can assert a confidentiality claim at the time they file to report. To do so, they need to comply with the additional requirements outlined in 40 C.F.R. § 705.35.
- Each person who submits a report is required to maintain a copy of that report for at least five years beginning on the last day of the submission period.
- Reporting is not required for a Federal agency that imports PFAS when the use is not for commercial purposes.
- Reporting under this new rule is not required for the import of municipal solid waste streams for the purpose of disposal or destruction of the waste.
Summary
This brief summary only touches the surface of what is required and each individual manufacturer subject to the rule ought to take a careful look at the new rules or consult with legal counsel before reporting. For instance, there are special rules for research and development-based entities as well as small manufacturers that mostly import PFAS. You can review the final rule here.
—
[1] The term “manufacture” also applies to the importation of goods into the territory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), produce, or manufacture. See 15 U.S.C. § 2602(9).
