On September 5, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a direct final rule announcing an 8-month extension to the PFAS reporting deadline under the Toxic Substances Control Act (TSCA). The reporting period, originally set to begin November 12, 2024, will now commence on July 11, 2025. This extension provides companies with much-needed additional time to navigate the complex reporting obligations for PFAS. The direct final rule is effective November 4, 2024, unless EPA receives "adverse" comments on a separately published proposed rule. EPA has stated that it will withdraw this direct final rule in that scenario; as a result, some uncertainty remains - at least for now - as to the actual final deadlines for the TSCA PFAS Reporting Rule.
Who Does This Apply To?
The PFAS Reporting Rule was established under Section 8(a)(7) of TSCA, pursuant to the National Defense Authorization Act of 2020. Known as the "forever chemicals," PFAS (i.e., per- and polyfluoroalkyl substances) are a group of synthetic strongly-bonded chemicals that have been used for more than half a century in various industrial applications and consumer products. The PFAS Reporting Rule applies to entities that have manufactured or imported any PFAS or any articles containing PFAS in any amount a tany time since January 1, 2011. These entities must submit a one-time report to EPA, which may include detailed information on PFAS uses, production volumes, disposal methods, exposures, and hazards—for each relevant PFAS chemical.
What Is New?
EPA's final rule gives most companies until January 12, 2026, to file their PFAS reports, with the six-month reporting period now starting July 11, 2025. (The longer, twelve-month reporting period for certain eligible "small manufacturers" would now run from July 11, 2025 through July 11, 2026.)
EPA cited budget constraints leading to the delay of reporting software as the primary reason for the extension in the direct final rule. EPA received a significant number of comments on the proposed version of the original TSCA PFAS reporting rule in 2022, and has addressed the complexity of the reporting requirements in multiple guidance documents and webinars.
What Level of Due Diligence Does EPA Expect of Companies?
The scope of this reporting obligation is broad, with no minimum concentration thresholds—meaning any trace of PFAS could trigger a reporting obligation. However, EPA only requires information that is "known to or reasonably ascertainable by" the entity. But what does this really mean for a company and how far up its supply chain must a company seek information about PFAS content? Generally, EPA has suggested that companies complete a "reasonable inquiry" into all information that may be in the "possession or control" of the company—which may include information that is held by a subsidiary or parent company. Although EPA has made clear that the rule requires no product testing to identify PFAS content in articles, companies should strongly consider conducting supply chain surveys, internal records audits, company-wide surveys, or other reasonable inquiry methods to verify whether any PFAS substances have been manufactured or imported since 2011.
Certain exceptions may apply, which may vary on a case-by-case basis. For example, companies that merely process, use, or dispose of PFAS are not subject to the rule. Additionally, small manufacturers may qualify for streamlined reporting requirements or extensions.
Conclusion
Much of the review required by companies and the due diligence threshold for reporting will vary based on the specifics of your company and may require a case-by-case analysis. With this extension, however, companies will have additional time to assess and review their reporting obligations under this rule.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.