The US Environmental Protection Agency (EPA) issued a direct final rule on September 5 that will delay the beginning of the per- and polyfluoroalkyl substances (PFAS) reporting period under the Toxic Substances Control Act (TSCA) until July 11, 2025. The reporting period was previously set to begin on November 12, 2024. Most companies reporting PFAS data under the TSCA rule will now have until January 22, 2026 to meet their reporting obligations.
The EPA’s TSCA Section 8(a)(7) PFAS reporting rule, published on October 11, 2023 (codified at 40 CFR part 705), requires any person that has manufactured or imported PFAS—including “articles” containing PFAS—in any year between 2011 and 2022 to electronically report certain information regarding PFAS to the EPA. The EPA expects reports submitted under the program to provide a vast amount of data about how (and in what products) PFAS are used. For additional information about the rule itself, refer to our October 2023 and February 2024 LawFlashes.
The proposed direct final rule provides for a one-time change to the data submission period for the rule. Specifically, the EPA is changing the start date to July 11, 2025, and making corresponding changes to the end dates for the submission period.[1]
Citing general budgetary issues and resource constraints, the EPA noted that budget reductions halted software development and maintenance activities necessary for the EPA to collect and process the vast amount of data that reporters will submit under the rule. The agency’s software application to collect PFAS data will not be ready by the original date for submissions, but the EPA does expect it to be “fully functional” when the new reporting window opens in July. Accordingly, regulated entities should prepare for reporting to go forward on the newly identified date, notwithstanding these delays and any potential implementation challenges. While the EPA has explained that this extension will help facilitate compliance with the PFAS reporting rule, whether this delay is an indication of potential future implementation challenges for the TSCA reporting rule remains to be seen.
TSCA regulation over domestic manufacturers and importers has increased in recent years, including through the National Defense Authorization Act of 2020 and strategic initiatives surrounding PFAS. The PFAS reporting rule, which does not include protections found in other TSCA regulations for de minimis PFAS producers or small businesses, has forced regulated entities to consider—for many, for the first time—not only whether their own operations involve “articles” that contain any amount of PFAS, but also whether the products within their broader supply chain might contain PFAS. For companies gathering more than a decade of PFAS reporting data (including for years where that information may not be readily available or widely reported), the delayed start of the reporting period is likely a welcome reprieve on a robust reporting obligation.
For companies still considering whether and how the reporting obligation applies to their operations, the delay from November’s imminent reporting start date presents an opportunity to conduct those evaluations. However, the window to perform such a large data collection and compile the mandatory report is quickly closing, notwithstanding the extension. The relatively short extension in the face of significant resource limitations also indicates the EPA’s steadfast dedication to proceeding with this reporting as initially proposed, even in the face of programmatic obstacles.
The EPA will receive comments until October 7, 2024. For more information, see the Federal Register. The EPA considers the PFAS reporting period delay to be noncontroversial and does not anticipate negative comments. The direct final rule to change the November 12, 2024 deadline to July 11, 2025 will be effective November 4, 2024 without further notice, but the direct rule reporting extension may be withdrawn if negative comments are received.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the authors or any member of our Chevron Task Force.
[1] The EPA is also correcting the text of the rule to identify “unpublished,” rather than “published,” study reports under the requirement to submit Organization for the Economic Cooperation and Development's (OECD) Harmonised Templates (OHTs). The EPA explains that it “intended to require OHTs only for unpublished study reports and is correcting the text accordingly.” 89 Fed. Reg. 72337 (Sept. 5, 2024). No other changes are being made to the final rule published at 40 CFR 705.