EPA to delay implementation of new PFAS reporting rules

The U.S. Environmental Protection Agency is delaying its new mandated reporting rule tied to the manufacture and usage of PFAS chemicals, a move that is supported by at least two business associations.

The EPA on Sept. 5 proposed amending its final rule from October 2023, which had called for manufacturers — including importers — of any PFAS and PFAS-containing articles since 2011 to report "information related to chemical identity, uses, volumes made and processed, byproducts, environmental and health effects, worker exposure, and disposal to EPA."

The reporting period was scheduled to begin Nov. 12, 2024, but the final rule delays the beginning of the reporting period until July 2025 due to budgetary constraints, according to an EPA posting in the Federal Register.

The rule falls under the Toxic Substances Control Act and is a requirement of the 2020 National Defense Authorization Act. The EPA said last year the new reporting would provide the agency, its partners and the public with the largest set of data for per- and polyfluoroalkyl substances made and used in the U.S.

But it now says that a delay is necessary so that its electronic system to collect information regarding uses of the "forever chemicals" — as well as production volumes, disposal, exposures and hazards — is ready to go.

"EPA has concluded that a change to the submission period is necessary and in the public interest as the reporting application being developed to collect this data will not be fully functional by November 2024," the agency said in the Federal Register. "The proposed revision of the submission period would facilitate compliance with the rule and help ensure that the collection includes accurate data on manufactured PFAS in the United States."

According to EPA, the organization's 2024 budget for the area that includes its TSCA program was reduced by $5 million compared with what was enacted in the FY 2023 budget, prompting some budgetary decisions on "competing priorities."

That included a reduction in the IT operating budget for TSCA, which stopped ongoing software development such as the app needed to collect the PFAS data. Because of this, the app will not be ready for the original November 2024 reporting period opening date, making it impossible for submitters to begin sharing data at that time.

EPA said it will take comments on the proposed change until Oct. 7. It will put the final rule into effect Nov. 4 unless it receives comments challenging this procedure by the comment deadline.

The amended final rule would change the data submission period to open July 11, 2025, when the EPA expects the software reporting app will be fully functional. Most reporters would be required to complete all reporting by Jan. 22, 2026.

Small businesses reporting data solely on importing PFAS contained in articles will have until July 11, 2026, to submit reports.

While the effective dates will be different, the contents of the rule itself and what it requires aren't changing.

The rule built on two years of work by members of President Joe Biden's administration and their plan to combat PFAS pollution, safeguarding public health and advancing environmental safety, according to the agency.

The term PFAS covers more than 10,000 chemicals that have been used in industrial and consumer products since the 1940s. Fluoroelastomers and fluoropolymers are included under PFAS-containing materials, though makers and users of these materials argue that the PFAS used there brings no threat to human health and the environment, and should be classified differently than applications that have been tied to a variety of adverse impacts.

The EPA proposed the rule in June 2021, and there were several opportunities for public comment and stakeholder input, including a Small Business Advocacy Review Panel in April 2022 and an Initial Regulatory Flexibility Analysis (IRFA) released for public comment in November 2022.

The final rule expands on the definition of PFAS in the proposed rule to include 41 additional PFAS of concern. EPA has determined that at least 1,462 PFAS that are known to have been made or used in the U.S. since 2011 will be subject to the final rule.

According to the IRFA, the EPA estimates the rule will result in $876 million in industry costs and $1.6 million in agency costs.

The rule mandates the following to be reported:

• The covered common or trade name, chemical identity and molecular structure of each chemical substance or mixture.
• Categories or proposed categories of use for each substance or mixture.
• Total amount of each substance or mixture manufactured or processed, the amounts manufactured or processed for each category of use and reasonable estimates of the respective proposed amounts;
• Descriptions of byproducts resulting from the manufacture, processing, use or disposal of each substance or mixture.
• All existing information concerning the environmental and health effects of each substance or mixture.
• The number of individuals exposed, and reasonable estimates on the number of individuals who will be exposed, to each substance or mixture in their places of work and the duration of their exposure.
• The manner or method of disposal of each substance or mixture, and any change in such manner or method.

The National Association of Manufacturers said that while the EPA date change is welcome, it also illustrates what a "massive administrative burden" the rule will be, without providing tangible benefits.

"We are pleased to see the EPA delay this retroactive reporting requirement — as the NAM has called for — which will temporarily prevent an increase in the regulatory burden facing manufacturers," Chris Phalen, NAM's vice president of domestic policy, said in a statement.

"More broadly, today's announcement reflects the massive administrative burden this proposal would impose on both the business community and regulators, while failing to provide insights for effective and prioritized public health efforts. We urge the agency to reverse course entirely, unless and until it has the capacity to effectively enforce the standard."

The American Chemistry Council said the change in the rule implementation allows for comprehensive testing of the central data exchange (CDX) system and stakeholder feedback to ensure data quality and protect confidential business information.

"We appreciate the EPA's willingness to collaborate with industry and downstream users of PFAS chemistries to ensure the CDX system is thoroughly tested and ready for data submission before opening this unprecedented and significant reporting," the ACC said in a statement.

The association said it previously had communicated to the EPA its concerns about the CDX not being properly tested to ensure functionality. With the large number of submitters, many not familiar with TSCA reporting, the ACC said it is critical that the system functions properly and safeguards confidential information, including trade secrets and national security interests.

"The EPA's proposal to delay the implementation of this reporting period can allow industry and the value chain time to beta test the reporting tool and to provide feedback on the functionality of the system and tools," the ACC said. "The EPA must assure stakeholders that its systems are fully functional and will not compromise confidential business information or trade secrets during these submission processes."

ACC added that its members are committed to enhancing the quantity and quality of information on PFAS, but they have concerns with the overly broad approach and the breadth of information requested by the rule.

"PFAS are a diverse group of chemistries integral to thousands of products we use daily," the ACC said. "They are an essential enabling technology for key sectors of the economy, including defense, automotive, semiconductors, electronics, alternative energy, pharmaceuticals, health care, building and construction, and agriculture.

"We look forward to engaging with this proposal and working to educate downstream users on this update."