Key Takeaways

• New PFAS reporting obligations are set to expand for chemical and product manufacturers in 2023
• De minimis use of PFAS in products may still trigger reporting obligations
• Some new reporting rules remain in flux as they come into effect

In recent months federal and state regulators have proposed or finalized new regulations that require chemical and product manufacturers to disclose the manufacture and use of PFAS (perfluoroalkyl and polyfluoroalkyl substances). These new notification requirements appear to be intended to make it easier for regulators and consumers to identify which PFAS are present in products, and at what volumes. Some new notification requirements will mandate that manufacturers identify historical and de minimis uses of PFAS. Other notification requirements will require manufacturers to establish robust compliance and recordkeeping protocols. Some of the new notification requirements, including Maine’s new rule, remain in flux even as they became legally enforceable.

In 2023, the regulated community must determine how to comply with an emerging landscape of complex, unclear and shifting PFAS notification rules that may disrupt product distribution and sales channels, alter consumer perception of products, and even expose companies to new product liability and regulatory risks.

Toxic Substances Control Act Section 8(a)(7) Reporting and Recordkeeping Requirements

On Nov. 25, 2022, the U.S. Environmental Protection Agency (EPA) solicited comment on its proposed rule addressing reporting and recordkeeping requirements for PFAS.[1] The underlying proposed rulemaking would require “all manufacturers of a chemical substances or a mixture containing a chemical substance that is a PFAS (including importers and article manufacturers) in any year since 2011 to report certain information to EPA. . . .”[2] That information would include the chemical identity of the PFAS, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal. EPA also has proposed a five-year retention period for all relevant records following the submission period.

The new rule notably extends PFAS reporting to the manufacturers not only of PFAS but also of articles that use PFAS in their manufacturing process. Additionally, the rule would require manufacturers to report all uses of PFAS since 2011 — an effort that may be difficult, if not impossible, for some companies. EPA has recently acknowledged the burden of compliance with its rule. In November, EPA updated its estimate of costs for the proposed rule from $10.8 million to $875 million in costs. It now expects that small businesses subject to the rule will incur nearly $864 million in costs for this one-time reporting effort. EPA therefore “is considering changes to the final rule from the regulatory proposal based on updates to the economic analysis. . . .”[3]

To assist in revising its rulemaking, EPA seeks comment on the number of potential small article manufacturers that will be subject to the rule, the number of hours small entities will spend on understanding the structural definition of PFAS, and the number of entities that would be affected by implementing a reporting threshold of either 2,500 pounds or 25,000 pounds manufactured per year.

The deadline for comment was Dec. 27, 2022. Members of the regulated community identified significant concerns about the scope and scale of the reporting obligations. The public comments included requests for exemptions for de minimis volumes, small businesses, finished articles, byproducts and impurities, and for eliminating or shortening the 12-year look-back period. Commenters also suggested that EPA establish a definitive list of PFAS subject to reporting so that companies can rely on clear guidance rather than vague definitions of the chemical class.

Emergency Planning and Community Right-to-Know Act (EPCRA) and the Removal of the de Minimis Exemption

On Dec. 5, 2022, EPA published a proposal that would eliminate the de minimis exemption for reporting small quantities of PFAS subject to the Toxics Release Inventory (TRI).[4] The proposal would add PFAS to the list of Chemicals of Special Concern and change reporting requirements for PFAS. EPA justified this proposal by claiming that it received a surprisingly low number of PFAS reports for the TRI 2020 reporting year because these entities relied upon the de minimis exemption.

Currently, the TRI program covers 180 specific PFAS chemicals. Entities that manufacture, process or otherwise use those PFAS chemicals are required to report that use if it meets the threshold of 100 pounds for each of the listed PFAS. However, the de minimis exemption allowed facilities reporting to TRI to disregard chemicals in mixtures or trade name products below 1 percent concentration for each of the TRI-listed PFAS, except for PFOA for which the concentration is set at 0.1 percent (as a potential carcinogen). This proposed rulemaking would eliminate that exemption and require facilities to report on PFAS regardless of its concentration in products. If this rule is finalized, many more manufacturers will be required to disclose the presence of PFAS in their products. The deadline to comment on this action is Feb. 3.

Maine PFAS Notification Requirements

Beginning Jan. 1, manufacturers that sell products in Maine must report the identity and amount of each PFAS intentionally added to those products.[5] Product manufacturers will be expected to work with supply chain partners to confirm whether their products contain intentionally added PFAS. Given the extensive detail required by these notification requirements and unfinished implementing regulations, many manufacturers could not meet these notification requirements by Jan. 1. Accordingly, the Maine Department of Environmental Protection granted six-month extensions to more than 1,000 different companies that requested extra time. To implement the product notification requirements, Maine is working with the Interstate Chemicals Clearinghouse to develop an online reporting database, which was not available before the reporting requirement became effective.

Meeting Notification Requirements

In addition to the new EPA and Maine notification requirements, numerous states have recently announced PFAS reporting requirements and bans for specific product categories (notably children’s products, carpets and cookware). The regulated community will need to monitor new reporting obligations and allow themselves time to comply with federal and state PFAS notification requirements. Some businesses may need to work with suppliers or other third parties to accurately fulfill their notification requirements.

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