EPA Proposes Retroactive PFAS Reporting

On June 28, 2021, the U.S. Environmental Protection Agency ("EPA") published a proposed rule that would require a one-time report from companies that manufactured or imported per- and polyfluoroalkyl substances (PFAS) in any year since January 1, 2011. The proposed rule would require regulated entities to provide an expansive suite of information, including the specific chemical identity, categories of use, production volume, byproducts, environmental and health effects, number of persons exposed and duration of exposure, and disposal.  EPA noted that the intent of the proposed rule is "to better characterize the sources and quantities of manufactured PFAS in the United States."

As we reported in June of 2020, EPA previously added 172 PFAS to the list of chemicals that required reporting on the Toxics Release Inventory (TRI).  In contrast, this proposed report would cover a much broader range of chemicals that fall within the PFAS family.  Specifically, EPA has identified at least 1,364 chemical substances and mixtures that would potentially be subject to reporting under the rule.

In addition, we previously identified several concerns regarding reporting PFAS on the TRI that are relevant to this proposed rule.  Specifically, some businesses, particularly importers, may not know PFAS are present in a chemical mixture when, for example, very low levels may not be listed on safety data sheets (even if they should be), but nonetheless exceed de minimis concentrations, or where certain PFAS information is withheld by a supplier or manufacturer as a trade secret.  EPA acknowledges that it is possible that an importer of articles containing PFAS may not know that they have imported PFAS and thus not report under the proposed rule.  To this end, the proposed rule would require manufacturers and importers report information to the extent that the information is known or is reasonably ascertainable.  The latter requirement means businesses must conduct a reasonable inquiry within their organization and may entail inquiries outside the business to upstream suppliers or downstream users of their products.  This would suggest that regulated entities document their due diligence efforts to defend against future allegations that they failed to submit the required report because of an insufficient inquiry.

Although only a one-time report, the scope of information being sought is extensive.  Regulated entities should submit comments to EPA regarding the proposed rule, particularly information that would assist EPA in assessing the challenges companies would face in complying with the rule as currently proposed.

Comments are due by August 27, 2021, and may be submitted here.