EPA Finalizes Regulations on PFAS Reporting, Including Reporting of Imported Articles that Contain PFAS Since 2011

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Nov. 28, 2023
By: Frederic D. Van Arnam, Jr.

The Environmental Protection Agency (“EPA”) recently finalized its regulations for reporting per- and polyfluoroalkyl substances (“PFAS”). PFAS, also known as forever chemicals, are thousands of synthetic chemicals used for years in a wide variety of industrial and consumer products. Products include, but are not limited to, textiles, electronics, wire and cables, pipes, cooking and bakeware, automotive products, and food contact substances. Also, PFAS are used in the manufacture of other chemicals, which in turn are used in other products. PFAS, including those found in products, can be released into the environment, where some have been linked to harmful health effects in humans and animals.

This article focuses only on the regulations impacting articles containing PFAS.  It does not address the impact of the regulations on the manufacture or import of bulk chemicals.

What Obligations Do the New Regulations Create for PFAS in Articles?

The new regulations create reporting requirements for manufacturers and importers of PFAS and PFAS-containing articles, who must report certain required data regarding PFAS use, disposal and hazards to the EPA. The reporting requirement is a one-time submission covering the period January 1, 2011, through the last calendar year prior to November 13, 2023. This means that manufacturers and importers of covered articles containing PFAS must use due diligence to report the required information for those products since 2011.

What PFAS are Covered by the Reporting Requirement?

The EPA will be providing a list of substances on its website that will trigger the reporting requirement. This list, however, is not dispositive, as the EPA has defined a PFAS as any substance containing at least one of the following three structures:

1.    R-(CF2)-CF(R’)R”, where both the CF2 and CF moieties are saturated carbons;

2.    R-CF20CF2-R’, where R and R’ can either be F, O, or saturated carbons; or,

3.    CF3C(CF3)R’R”, where R’ and R” can either be F or saturated carbons.    

What Must an Importer of a Finished Article Report?

The EPA has created a “streamlined” reporting form option for article importers if they do not know or cannot reasonably ascertain information requested on the longer form. Thus, if an importer determines that merchandise it has imported since 2011 contains a covered PFAS, then at a minimum the importer needs to report: 1) the chemical identity (specific, generic and trade names; chemical identification number; representative molecular structure); 2) processing and use information (type of use; sectors and functional categories; percent of production volume per use; maximum concentration product), and 3) production volume (quantity of the imported product). To the extent that the reporter has information not requested on the streamlined form but would be necessary for completion of the longer form, then that information may be added in the “optional” information field.

No de minimis threshold exists for either production or import units or for the amount of PFAS found in an article. If the article contains PFAS, then it must be reported.

Since 2011? How Does One Get that Information?

The regulations only require an importer or manufacturer to be responsible for submitting information that is “known or reasonably attainable.” This means information “in a person’s possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know.” Due diligence must be exercised when searching for relevant information, including third-party references like Dun & Bradstreet, the Chemical Abstract Services Registry, and the manufacturer’s safety data sheet.

Are Certain Articles Exempt from the Reporting Requirements?

Yes. The PFAS reporting regulations are required under the Toxic Substances Control Act (“TSCA”). The TSCA excludes certain items, including foods, drugs, cosmetics, and medical devices regulated by the FDA. Thus, importers or manufacturers of these FDA regulated items need not comply with the PFAS reporting requirement.

Timeline for Roll Out.

Everything is tied to the November 13, 2023, start date. The earliest anyone can report is one year later, on November 13, 2024, and the reporting period expires May 8, 2025. Small businesses as defined under the EPA regulations who are engaged solely in importing articles containing PFAS must report no later than November 12, 2025.

If you have any questions about the application of these regulations to your business, do not hesitate to contact any attorney at Barnes, Richardson & Colburn, LLP.