The EPA recently published a proposed rule to add 16 per- and polyfluoroalkyl substances (PFAS) and 15 PFAS categories to the Toxics Release Inventory (TRI), which is a list of toxic chemicals subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) to comply with the National Defense Authorization Act (NDAA) for fiscal year (FY) 2020. The proposed rule also addresses how PFAS categories should be treated.
The EPA also outlines what events may trigger the automatic addition of PFAS to TRI under the NDAA.
“This discussion does not propose to list chemicals to TRI pursuant to the NDAA, but rather describes what EPA documents and activities involving PFAS would trigger an automatic addition under the NDAA,” according to the proposed rule.
Comments will be accepted on the proposed regulation until December 9, 2024.
Reporting deadline extension
The EPA also announced it has delayed the reporting period for the October 2023 final rule requiring companies to report on PFAS under the Toxic Substances Control Act (TSCA). The reporting period was scheduled to begin on November 12, 2024, but the final rule delays the beginning of the reporting period until July 2025 due to resource constraints.
The reporting rule under Section 8(a)(7) of TSCA is a statutory requirement established by the FY 2020 NDAA that requires all manufacturers (including importers) of PFAS and PFAS-containing articles in any year since 2011 to report information related to chemical identity, uses, volumes made and processed, byproducts, environmental and health effects, worker exposure, and disposal to the EPA.
The “EPA’s TSCA program has had resource constraints for years, which has delayed a number of important efforts, including full implementation of the reporting rule,” states the Agency webpage. “In March 2024, the [FY] 2024 program area budget that includes EPA’s TSCA program was reduced by $5 million compared to what was enacted in the FY 2023 budget, and the agency needed to make difficult choices to ensure that it would be able to continue its work to protect human health and the environment from the risks presented by toxic chemicals.
“As a result of competing priorities, many of which related to meeting statutory deadlines, EPA’s TSCA program significantly reduced its IT operating budget in FY 2024 to prevent overspending of resources, which resulted in less funding for the contractual support EPA relies on for much of its IT efforts. The budget reductions stopped ongoing software development and impacted operations and maintenance activities associated with both the Central Data Exchange and TSCA confidential business information-based applications, which are critical to the agency’s TSCA data collections, including for this rule. As a result, the agency software application that will collect the PFAS data will not be ready by the original November 2024 reporting period opening date and it will thus be impossible for submitters to begin to submit data on that date.”
Most reporters will be required to submit the required information by January 11, 2026, although small businesses reporting data solely on importing PFAS contained in articles will have until July 11, 2026.
This PFAS data reporting rule is extensive. Many companies that have never had to deal with TSCA compliance will be subject to this rule.
“Companies that import PFAS-treated products or products in packaging that contain or have been treated with PFAS will need to report before the deadline,” advises law firm Davis Wright Tremaine LLP in an article published by Lexology. “PFAS are ubiquitous in hundreds of everyday products including cookware, waterproof fabrics used for raincoats and luggage as well as the paint used on some zippers. Considering the number of companies that are potentially covered by these requirements and the long look-back period, it is critical that covered entities assess their obligations as soon as possible.”
The EPA has prepared several guidance documents to assist regulated entities with reporting requirements:
- TSCA Section 8(a)(7) Rule, Frequently Asked Questions
- Instructions for Reporting PFAS Under TSCA Section 8(a)(7)
- TSCA 8a7 Small Entity Compliance Guidance
- Public List of TSCA PFAS for 8(a)(7) Rule
- Materials from a public webinar
The EPA expects to launch a new webpage on the TSCA guidance database (TSCA GuideME) and add electronic reporting resources to the regulatory resources, including shorter video recordings, fact sheets, and guidance, to further support entities that must report under this rule.
The EPA also plans to host a series of webinars on technical topics identified as challenges by reporting entities that will begin before the reporting period opens and will continue through the reporting period.