/>iWhile the Trump Administration’s deregulatory efforts create uncertainty regarding oversight of per- and polyfluoroalkyl substances (PFAS), EPA remains active in addressing these toxic chemicals.
Under the Biden Administration, EPA established regulatory frameworks for PFAS under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Clean Water Act (CWA); Resource Conservation and Recovery Act (RCRA); Safe Drinking Water Act (SDWA); Toxics Release Inventory (TRI) (under EPCRA); and Toxic Substances Control Act (TSCA), among others. As of today, EPA has delayed a number of these PFAS rulemakings by extending comment periods.
Importantly, in a March 12 list of 31 deregulatory actions and a memorandum revising the National Enforcement and Compliance Initiatives (NECI), EPA offered direction in its push to pare back regulations. Notably, EPA did not list PFAS rulemakings in this list of deregulatory targets, nor did EPA revise the Biden-era PFAS and drinking water NECIs. This suggests that actions to revise or rescind recently promulgated PFAS requirements are possibly lower on the list of deregulatory priorities. This may change.
In the meantime, the TSCA PFAS Reporting Rule remains in full force and effect and its reporting deadlines are fast approaching. The PFAS Reporting Rule was mandated by Congress in the National Defense Authorization Act (NDAA) of 2020 that amended TSCA section 8(a)(7). 88 Fed. Reg. 70,516 (Oct. 11, 2023). EPA later promulgated a final rule establishing the reporting period to begin on July 11, 2025, and to conclude for most businesses on January 11, 2026; some small businesses can report on or before July 11, 2026. 89 Fed. Reg. 72,336 (Sept. 5, 2024).
The TSCA rule requires manufacturers and importers of PFAS to report various data looking back twelve years to 2011. The PFAS Reporting Rule applies to manufacturers of PFAS substances and mixtures, including PFAS in byproducts and impurities. The rule also requires importers to report PFAS substances and mixtures, including articles containing PFAS (e.g. components, materials and products).
In addition to the unprecedented look-back period, the PFAS Reporting Rule requires companies to conduct a diligent inquiry into the presence of PFAS at their facilities and supply chains, assessing information that is “known or reasonably ascertainable” from upstream suppliers and downstream customers. Both internal and external inquiry is required. The rule will require thousands of businesses that have never reported under TSCA to conduct diligent inquiries of this type.
Unless or until EPA acts additionally to extend the deadlines or revise the reporting requirements of the PFAS Reporting Rule, businesses are required to comply. There is still time to gather and process the necessary information. Even amid regulatory uncertainty, businesses are encouraged to be prepared and avoid possible noncompliance risks. Also, several states have enacted or proposed reporting for PFAS in products, including some restrictions or outright prohibitions. States may also petition EPA to regulate PFAS further; some are already doing so regarding PFAS air emissions.
Businesses are urged to use the TSCA diligence and information gathering process to both collect information to comply with federal and state PFAS regulatory requirements and to establish an in-house knowledge base. Liabilities from PFAS exposures and contamination from third-party and governmental enforcement actions, distinct from reporting requirements, are expected to only amplify in the coming years.
