Posted on October 13, 2023 by Jennifer Nijman
Just this month, on October 11, 2023, EPA issued its final rule under the Toxic Substances Control Act (TSCA) requiring a wide range of companies to report and retain records of extensive PFAS data. The rule will take effect November 13, 2023. It initially may seem like a good idea, except that the scope of the reporting appears nearly impossible to achieve. And to what end?
First, the rule applies to any company that manufactures (or did manufacture) PFAS chemicals for a commercial purpose – including importation, commercial distribution, test marketing, and use in research and development and as an intermediate. The reporting applies to PFAS chemicals in mixtures or compounds and even articles containing PFAS chemicals. Will a company even know if it is affected?
Second, the scope of the chemicals to be reported is vast. EPA estimates that more than 1,462 chemicals will be affected and broadly defines PFAS as any chemical substance or mixture containing a chemical substance that structurally 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; and CF3C(CF3)R’R’’, where R’ and R’’ can either be F or saturated carbons. Who at a reporting company is going to figure out what they need to look for? And how?
The third issue is timing. The rule takes effect quickly and states that “Any entities, including small entities, that have manufactured (including imported) PFAS in any year since 2011 will have 18 months following the effective date of this rule to report PFAS data to EPA.” It requires reporting of information back to January 1, 2011. Who will be able to find those records, when PFAS weren’t even on the radar?
Fourth, the obligation to find information is difficult, at best. In addition to requiring regulated companies to report information in their possession and control, companies must also report “all information that a reasonable person similarly situated might be expected to possess, control, or know.” EPA explains that this requires due diligence, recognizing that the level of effort will vary from case-to-case. EPA notes that inquiry may be required from “the full scope of their organization” not just managerial or supervisory employees, and may expand to inquiries outside the organization. Who is going to decide whether the appropriate level of investigation is performed?
Fifth, the type of information to be reported is extensive. It includes the chemical identity and molecular structure, how the reporting entity (and consumers) used it, quantities, health effects and environmental effects, and disposal, among others.
There is no doubt that complying with this reporting effort will require a team of professionals (legal and technical). Perhaps, instead, more attention should be given to what the regulated community can actually DO about PFAS – which EPA recognizes are ubiquitous and “forever.” With this rule, we will know through reporting who used PFAS (almost everyone) and how, which will give good fodder to enforcement and cost-recovery litigation. But we still don’t know what to do.