On September 5, 2024, the EPA issued a direct final rule related to a rule previously published in the Federal Register in October 2023, which requires the reporting of data related to the manufacture or import of Perfluoroalkyl and Polyfluoroalkyl Substances (“PFAS”). The new direct final rule will delay the reporting period for records and data related to PFAS required by the prior rule, codified at 40 CFR Part 705. The Toxic Substances Control Act (“TSCA”) authorizes the EPA to maintain a database of all chemical substances manufactured in or imported to the United States, excluding food, drugs, cosmetics and pesticides.
The 2020 National Defense Authorization Act added Section 8(a)(7) to the TSCA statutory scheme. The new law requires any person or entity who has manufactured any substance or good containing PFAS to report and maintain records regarding the manufacture of PFAS or import of articles containing PFAS. Unlike many rules promulgated under the TSCA, the current rule applies to small businesses as well as others, including entities engaged in construction, manufacturing, wholesale and retail trades, and waste management and remediation services.
The reporting requirement of Section 8(a)(7) of the TSCA includes past information from the years 2011 to 2022. The information to be reported includes company and plant site information; chemical-specific data including the physical form of the substance and its chemical makeup; categories of use; manufactured amounts; byproducts resulting from the manufacture, processing, use, or disposal of each PFAS; environmental and health effects; worker exposure data; and disposal data.
A direct final rule is generally used when the agency publishing the rule does not expect adverse comment on it; the rule is non-controversial. The EPA stated it does not expect adverse comment on the rule because it simply changes the time for reporting of the period from 2011 through 2022 and makes one minor technical correction. The reporting period was set to begin November 12, 2024, and run six months, through May 8, 2025. The new period also lasts six months, July 11, 2025, through January 11, 2026. Small businesses have a longer period to report, lasting from July 11, 2025, through July 11, 2026.
The EPA moved the reporting period because it expects a colossal amount of data due to the extensive reporting requirements and effective time period. The Agency said that budget constraints prevented it from developing and implementing the technical infrastructure required to maintain the electronic system through which entities are expected to report their activities related to PFAS.