Importers/Manufacturers Face Unprecedented EPA Reporting of ‘Forever Chemicals’

Trade Update • October 17, 2023

he U.S. Environmental Protection Agency (EPA) has issued a final rule, that finalizes reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS), commonly known as ‘forever chemicals’ under the Toxic Substances Control Act (TSCA). The rule is unprecedented in its scope and compliance challenges. The definition of PFAs covers more than 9,000 unique chemical substances.

Reporting

Effective November 13, 2023, the EPA is requiring persons that manufacture (including import) or have manufactured these chemical substances in any year since January 1, 2011, to submit information to EPA regarding PFAS uses, production volumes, byproducts, disposal, exposures, and existing information on environmental or health effects. EPA is finalizing this rule both to fulfill its obligations under TSCA to create a more comprehensive database of previously manufactured PFAS to improve the Agency’s understanding of PFAS in commerce, better characterize the sources and quantities of manufactured PFAS in the United States and to support actions to address PFAS exposure and contamination.

The EPA is allowing affected entities until November 13, 2024, to collect data, followed by a six-month submission period with reports due on May 13, 2025. For small article importers and/or manufacturers, the submission period shall begin one year following November 13, 2023, and last for 12 months with reports due on November 10, 2025.

What are PFAS?

PFAS are a group of synthetic chemicals that have been in use since the 1940s and can be found in a wide array of industrial and consumer products. PFAS are synthesized for many different uses, ranging from firefighting foams to coatings for clothes and furniture, to food contact substances, to the manufacture of other chemicals and products. They are used in a wide variety of products, including textiles, electronics, wires and cables, pipes, cooking and bakeware, sport articles, automotive products, toys, transportation equipment, and musical instruments, which may be imported into the United States as finished articles. PFAS can be released to the environment throughout the lifecycle of manufacturing, processing, distribution, use, and disposal. There is evidence that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals, and that continued exposure above specific levels to certain PFAS may lead to adverse health effects.

Products Affected

This action may apply to you if you have manufactured (to include import) PFAS for a commercial purpose at any time since January 1, 2011. The following list of North American Industrial Classification System (NAICS) codes is to provide a guide to help industry determine whether this document applies to them. Potentially affected entities may include:

• Construction (NAICS code 23);
• Manufacturing (NAICS code 31 through 33);
• Wholesale trade (NAICS code 42);
• Retail trade (NAICS code 44 through 45); and
• Waste management and remediation services (NAICS code 562).

This list details the types of entities that EPA is aware could potentially be regulated by this action. Other types of entities not listed could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 705.10 and 705.12.