What Is in the Environmental Protection Agency's Billion Dollar Pfas Reporting Rule?

• Publication year: 2023

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Victor Y. Xu and James B. Pollack ^*

In this article, the authors discuss a proposed reporting rule requiring U.S. manufacturers of any product containing per- and polyfluoroalkyl substances—known as PFAS—and any U.S. importer of articles containing any PFAS to investigate and certify to the Environmental Protection Agency the amount of PFAS that they have manufactured or imported into the United States for the past 12 years.

Manufacturers and importers of products containing per- and polyfluoroalkyl substances—known as PFAS—will face new and substantial costs for recordkeeping and reporting if an Environmental Protection Agency (EPA) rule designed to collect comprehensive data on PFAS is finalized as proposed. The proposed reporting rule requires U.S. manufacturers of any product containing PFAS and any U.S. importer of articles containing any PFAS to investigate and certify to the EPA the amount of PFAS that they have manufactured or imported into the United States for the past 12 years (beginning January 1, 2011). ¹ The EPA estimates industry-wide compliance costs to be up to $876 million and up to $1.8 million for each manufacturer or $224,000 for each article importer. ²

Despite a year-end Congressional deadline, ³ the EPA is still working on the rule and has recently proposed several potential revisions, including revisions to exempt some small businesses and to narrow the set of PFAS covered by the rule. The EPA sought comments on the potential revisions through December 27, 2022. ⁴

EPA's Proposed PFAS Reporting Rule

The proposed PFAS reporting rule, issued June 28, 2021, applies broadly to any businesses that currently or previously manufactured or imported PFAS "between January 1, 2011 and the effective date of the final rule." ⁵ The rule covers manufacturers

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of PFAS chemicals as well as product manufacturers and product importers of articles containing PFAS. With the ubiquity of PFAS in consumer products—including apparel, food packaging, cookware, carpets, and even automobiles—this rule has the potential to cover large swaths of the economy. There is no exemption for businesses below a certain size. Manufacturers or importers that incidentally produce PFAS as a "byproduct" during the production or disposal of another substance or product are also required to report. ⁶ The only excluded entities in the proposed rule are manufacturers and importers of PFAS that are regulated under other statutes like the Food, Drug, and Cosmetic Act or the Federal Insecticide, Fungicide, and Rodenticide Act. ⁷

The EPA issued the proposed rule under Section 8(a) of the Toxic Substances Control Act (TSCA), which authorizes the EPA to promulgate rules that require businesses to maintain and submit records on the production, import, processing, or mixture of specified chemicals. ⁸ In December 2019, Congress amended Section 8 of the TSCA to compel the EPA to promulgate a rule requiring PFAS manufacturers and importers to report information on PFAS produced or imported for every year since January 1, 2011. ⁹ Although Section 8(a)(1) of TSCA—the general grant of authority to the EPA to promulgate these sorts of reporting rules—contains an exemption for "small manufacturer[s] or processor[s]," ¹⁰ Congress's directive to the EPA to study PFAS was not so limited.

The EPA's proposed reporting rule raises many questions about how a product manufacturer or importer should collect and report such detailed information. The EPA provides only limited guidance on the topic. The EPA requires a covered business to supply the...