August 13, 2021
by John Kowalski, senior regulatory specialist, Supply Chain division
On June 28, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) proposed reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS). More specifically, the EPA proposed requirements under TSCA Section 8(a)(7) for PFAS manufactured in any year since Jan. 1, 2011. The Agency has stated that it proposed this action to fulfill statutory obligations under TSCA and to obtain certain known or reasonably ascertainable information from manufacturers of PFAS. TSCA Section 8(a)(7) requires EPA to publish a final rule no later than Jan. 1, 2023.
If finalized as proposed, this rule could impact companies that have not been subject to TSCA in the past. That’s because the term “manufacture” is defined under TSCA to include import. Also, for purposes of the proposed rule, articles containing PFAS, including imported articles, are included in the scope of reportable chemical substances. This would potentially encompass a wide range of consumer products, including cleaners, paints, carpets, clothing, sporting goods, furniture, electronics and household appliances.
The EPA has proposed that companies that have manufactured or imported any PFAS at any time since Jan. 1, 2011, would report during a six-month submission period, which would begin six months following the effective date of the final rule. Therefore, companies would ultimately have one year following the effective date of the final rule to collect and submit all required information to the Agency.
The proposed rule applies to all substances and mixtures that are PFAS, as defined within the rule, and the rule defines PFAS as follows. PFAS means any chemical substance or mixture that structurally contains the unit R-(CF2)-C(F)(R′)R″, where both the CF2 and CF moieties are saturated carbons. Furthermore, none of the R groups (R, R′ or R″) can be hydrogen. This definition includes, but is not limited to, more than 1,300 PFAS listed or otherwise described in the rule.
The proposed rule would require all manufacturers (including importers) of PFAS in any year since 2011 to report information related to chemical identity, categories of use, volumes manufactured and processed, by-products, environmental and health effects, worker exposure, and disposal. It would also require companies subject to the reporting requirements to retain records that document any information reported to the EPA for a period of five years beginning on the last day of the submission period.
With certain exceptions, the proposed rule would allow companies to assert confidentiality claims for information submitted under the rule. However, most such claims would require substantiation at the time of submission. Finally, all information would have to be submitted electronically using a reporting tool within the Agency’s Central Data Exchange.
Opportunity for public comment
Companies potentially impacted by this proposed rule may choose to submit comments on the rule, either directly or through their trade associations. The EPA has specifically requested comments on whether imported articles containing PFAS should be within the scope of the rule. The comment period, which was originally set to close on Aug.27, 2021, has been extended until Sept. 27, 2021.
This document is for general information purposes only and is not intended to constitute a definitive or complete statement of the law or regulation on any subject and should not be relied upon for legal or regulatory compliance purposes. UL, its subsidiaries, employees and agents shall not be responsible to anyone for the use or nonuse of the information contained in this document, and shall not incur any obligation or liability for damages, including consequential damages, arising out of or in connection with the use, or inability to use, the information contained in this document