Any PFAS import or manufacture since 2011, including articles, byproducts, and small quantities, must be reported.
It is expected that facilities involved in the following will be the hardest hit:
- Importers of materials/articles with water and stain-repellant properties
- Raincoats, shoes, other textiles
- Food contact material
- Pots, pans, appliances, and other non-stick items
- Semiconductor fabs
- Aerospace component manufacturers
- Chemical manufacturers
- Carpet makers
- Fabric finishers
The rule will require PFAS reporting in commercial sectors not presently subject to extensive PFAS compliance activities and significantly increase the compliance burden for many industries already adapting to recent PFAS rules.
On September 28, EPA released the pre-publication final rule for Toxic Substances Control Act (TSCA) Reporting and Recordkeeping Requirements for Per- and Polyfluoroalkyl Substances (PFAS). This rule is largely the same as the proposed rule in 2021, with only minor changes. Reporting will be required for facilities that have manufactured for commercial purposes a PFAS chemical at any period from January 1, 2011, through the end of the last calendar year prior to the effective date of the rule. For most facilities, reporting will be due 18 months from the date of the publication of the final rule.
Manufacturing for a commercial purpose is defined in the rule and includes importing. Byproducts and impurities are included in reporting regardless of status for affecting commercial value.
The rule also draws a line in the sand for a PFAS definition, and this definition is much broader than prior definitions of PFAS under TSCA. Since PFAS are a family of chemical compounds there is debate globally about how broadly to cast the net of scrutiny among varying molecular structures. The definition in the TSCA reporting rule uses descriptions of molecular structures rather than a list of specific chemicals, in contrast to the Toxic Release Inventory (TRI), which enumerates discrete toxic chemicals individually. The molecular structural definition of PFAS in the TSCA reporting rule is any chemical substance or mixture containing a chemical substance that contains at least one of the following three sub-structures:
- R-(CF2)-CF(R’)R’’, where both the CF2 and CF moieties are saturated carbons
- R-CF2OCF2-R’, where R and R’ can either be F, O, or saturated carbons
- CF3C(CF3)R’R’’, where R’ and R” can either be F or saturated carbons.
This definition is the broadest currently in US Federal rules and applies to thousands of known PFAS chemicals. It also aligns with the definition in the US Contaminant Candidate List (CCL) which is a list of contaminants in drinking water that are currently not subject to any proposed or promulgated national primary drinking water regulations but are known or anticipated to occur in public water systems and may require regulation under the Safe Drinking Water Act (SDWA). This TSCA and CCL definition is less extensive than other definitions such as in European Union REACH proposed PFAS bans or global trade references such as the Organisation for Economic Co-operation and Development (OECD) which generally consider any molecule with a single fully fluorinated carbon atom to be a PFAS.
Who does the rule apply to? Are there any exemptions or shortcuts?
The proposed rule is not industry specific and applies to any facility that has manufactured (including imported) PFAS for a commercial purpose. Current Chemical Data Reporting (CDR) under TSCA has a reporting threshold of 25,000 pounds (or 2,500 pounds for chemicals subject to certain TSCA actions), along with several reporting exemptions, including for imported articles, certain byproducts, non-isolated intermediates, and small quantities of R&D substances, while this reporting rule does not incorporate any such thresholds or exemptions. Similarly, there is no small concentration exemption such as the de minimis in TRI reporting.
All other facilities in any industry must evaluate if reporting is required. Of particular significance is that reporting can be triggered for the import of articles. PFAS are used in such a wide variety of materials that the import of PFAS-containing articles is expected to be a common reporting trigger for numerous industries.
Reporting is not required for the import of municipal solid waste streams for the purpose of disposal or destruction of the waste. Additionally, reporting is not required for a federal agency which imports PFAS when it is not for any immediate or eventual commercial advantage.
Streamlined reporting is available for the importing of articles and substances manufactured for Research and Development (R&D) purposes in small quantities. The scope of information required for reporting is not significantly reduced, though the streamlined reporting does make accommodations for anticipated data gaps specific to articles and R&D.
What information is required in reporting?
Information requirements are extensive. Those familiar with CDR will notice many similarities, although some differences exist. Information requirements are outlined as follows:
- Company and plant site information.
- Chemical-specific information.
- The common or trade name, the chemical identity, and molecular structure. Also, the physical form of the PFAS as it is sent off-site.
- Categories of use.
- Industrial processing and use information. Such as a reactant, formulation component, etc.
- Industrial sector and industrial sector function category.
- Consumer and commercial use information and applicable codes for each commercial and consumer products.
- Commercial and consumer products. Submitters must indicate, for each consumer and commercial product category, whether the use is a consumer or a commercial use, or both. Must also indicate if intended for use by children.
- Concentration of PFAS as a maximum weight percentage or range code.
- Manufactured amounts (including import) for each year since January 1, 2011.
- Including total volume, site designation, total produced by portion in each industrial sector and consumer product category. Also, an indication of whether the PFAS was site limited.
- Volume recycled on-site.
- Byproduct reporting. A description of the byproducts resulting from the manufacture, processing, use, or disposal of each PFAS.
- Byproduct identification.
- Releases. An indication of whether the byproduct is released to the environment, and if so, the environmental medium (a) to which it is released (i.e., air, water, land).
- Volume. For each year, the byproduct volume (in pounds) released to the environment.
- Environmental and health effects. All existing information concerning the environmental and health effects of such substance or mixture containing a chemical substance in the manufacturer’s possession or control. The scope of this information shall not be limited to studies conducted or published since 2011.
- Organization for Economic Cooperation and Development (OECD) Harmonized Templates.
- Human health data preliminary studies.
- Analytical test methods used to detect or otherwise test for the PFAS.
- Worker exposure data.
- Employment activities and exposure scenarios/durations for industrial and commercial sectors.
- Number of workers exposed in industrial and commercial sectors.
- Disposal data.
- Categories of disposal methods and description of disposal processes.
- Disposal volume and incineration volume.
Reporting information must be provided to the extent known to or reasonably ascertainable. The definition and explanation of this extent is detailed in the rule and rule preamble. In the event that actual data is not known or reasonably ascertainable by the submitter, then reasonable estimates may be submitted.
Trinity focus on new reporting rule
On December 12, 2023, Trinity will host a
webinar to walk through the reporting rule in greater detail. Particular focus will be on the extent of due diligence required to gather reporting information dating back to 2011 as well as provisions for confidential business information.
