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If your business imports articles containing PFAS, you may be entirely exempt from future reporting requirements. The U.S. Environmental Protection Agency (EPA)'s newly proposed changes to the Toxic Substances Control Act (TSCA) could significantly reshape reporting obligations for manufacturers and importers of PFAS and PFAS-containing articles.
What's the TSCA?
Through TSCA, the EPA regulates commercial uses of chemical substances that are not regulated by other federal statutes. As originally drafted, the 2023 "Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)" rule issued under TSCA Section 8(a)(7) required all manufacturers and importers of PFAS and importers of PFAS-containing mixtures or articles to report information about their PFAS-related activities between 2011 and 2022.
What's Changing?
On Nov. 10, the EPA proposed significant TSCA exemptions. They could bring reporting relief for article importers, manufacturers of products containing de minimis concentrations of PFAS or certain byproducts, impurities and non-isolated impurities, and manufacturers who produce PFAS solely for research and development. Here's a quick snapshot of the proposed changes.
1. Article Importers Exemption
Companies that import PFAS as part of articles, also known as "article importers," would be exempt from reporting under the new rule. An "article" is defined as a manufactured item with a specific shape or design, whose function depends on that shape/design, and which does not change chemical composition during use.
EPA's proposal recognizes that article importers are unlikely to have—or be able to obtain—reliable information about PFAS in imported articles for the entire reporting lookback period, which runs from Jan. 1, 2011, through Dec. 31, 2022.
2. De Minimis Exemption
Products that contain PFAS concentrations below 0.1% would be considered "de minimis" under the proposed rule. Manufacturers of these products would also be exempt from the TSCA reporting requirement, regardless of the total volume of the mixture or article involved.
EPA set the de minimis threshold at 0.1% because during the initial reporting lookback period, companies typically did not track or label PFAS at such low concentrations, acknowledging that identifying the use or presence of PFAS below 0.1% in past products would be impractical and burdensome for manufacturers.
3. Byproducts, Impurities and Non-Isolated Intermediates
Manufacturers of products that contain PFAS in the form of byproducts, impurities and non-isolated impurities would also be exempt from the reporting requirements, as long as the PFAS in their products were not intentionally produced or used for commercial purposes. Manufacturing activities where PFAS byproducts are later used for commercial purposes would remain reportable. The EPA's goal with this exemption is to focus reporting on PFAS with greater commercial relevance and potential exposure, while reducing administrative burden.
4. Research and Development
PFAS manufactured or imported solely for research and development purposes would also be exempt from reporting obligations under the proposed amendments to TSCA. This exemption has no numeric threshold but would only apply to quantities reasonably necessary for research and development activities.
What Happens Next?
The EPA encourages stakeholders to submit public comments on the proposed rule until Dec. 29. After reviewing these comments, the EPA may finalize the rule as proposed or make further changes. The final rule will set new compliance deadlines and requirements.
What Should You Do?
Both manufacturers and importers should review the new exemptions to determine whether their reporting obligations are impacted.
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.
