“Forever Chemicals” – Final Reporting Rule

By Ferraiuoli LLC

On September 28, 2023, the United States Environmental Protection Agency (EPA) issued its final PFAS reporting rule, titled “Toxic Substances Control Act (TSCA) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)”, which are often dubbed as “forever chemicals”.

This rule, which significantly diverges from the 2021 draft, mandates manufacturers (including importers) of PFAS and PFAS-containing items, to furnish specific information to the EPA, retroactive to 2011. Among other things, the information required encompasses chemical identity, usage details, production volumes, byproducts, environmental and health ramifications, worker exposure and disposal methods. Below, you will find a comprehensive summary of the key points:

-The final rule broadens the definition of PFAS to prevent unintentional limitations to reporting. As such, the new definition encompasses an additional 41 identified chemical substances, bringing the total subject to the rule to at least 1,462 PFAS.

-Entities that have manufactured or imported PFAS must submit reports on their usage within either eighteen (18) or twenty-four (24) months of the rule’s effective date, which was November 13, 2023.
One of the most important aspects are the reporting requirements, which include, but are not limited to:

a. Comprehensive account of manufacture, import, or production dating back to 2011;
b. Detailed chemical-specific information, encompassing chemical identity and molecular structure;
c. Insights on industrial processing and utilization by the regulated entity;
d. Data on consumer and commercial utilization, including downstream users and purposes;
e. Explanation of byproducts resulting from PFAS chemical manufacturing, processing, use, or disposal, along with information on environmental releases and disposals of PFAS;
f. Compilation of all available information regarding the environmental and health effects of relevant PFAS chemicals within the company’s possession or control, spanning beyond data published since 2011; and
g. Details of worker exposure, their activities, and exposure duration.

-Regulated companies are required to report both the information already within their possession or control and any data that a reasonable person in a similar situation would be expected to have. It is important to note that small businesses are not exempt.