We have previously written regarding EPA’s efforts to create new PFAS rulemaking under the Toxic Substances Control Act (TSCA). On September 28, 2023, EPA released its TSCA PFAS final rule, which significantly expanded reporting and recordkeeping practices related to PFAS. A common misconception is that TSCA’s PFAS rules only apply to PFAS manufacturers or companies importing PFAS for various uses; however, this is only part of the picture.

The TSCA PFAS final rule applies to PFAS manufacturers and importers for PFAS made or imported between January 1, 2011 and the effective date of the rule. Such companies will be required to disclose PFAS identification information, production volumes, uses (including industrial, commercial and consumer), specific information related to PFAS byproducts, employee exposure data, disposal quantities and practices, and information related to environmental and health impacts of PFAS.

The TSCA PFAS rule also applies to manufacturers of products that contain PFAS, as well as importers of products (referred to as “articles” under TSCA) that contain PFAS. The reporting requirements are triggered regardless of whether the PFAS were intentionally added to the products or not, and regardless of whether PFAS were intentionally added to any manufacturing processes for the products or not. TSCA’s new PFAS rule also applies to certain waste companies that import PFAS in certain waste products or that produce PFAS due to the disposal of another chemical.

In many instances, companies importing certain chemicals or products will face difficulty in obtaining information regarding PFAS content of the item. Many overseas companies simply do not disclose chemical information in their products, as there is no requirement to do so in many countries globally. Companies in the U.S. must, under TSCA, make “reasonable efforts” to determine whether PFAS are in items that are manufactured or imported. While information that is known or within a company’s control is relatively easy to ascertain for company’s for purposes of reporting, TSCA also contemplates an element of required due diligence to fulfill reporting obligations. In circumstances of alleged TSCA violations, EPA will consider a company’s actions on a case-by-case basis to determine whether it met the “reasonable efforts” standard.