The Perfect is Always the Enemy of the Good - TSCA’s Information Grab and the Expansive Ten-Year “Look Back” PFAS Reporting Requirement

October 23, 2023

Read the full article by Jeffrey Davidson and Susan Richardson (JD Surpa)

"In 2021, we alerted our readers to a concerning expansive TSCA proposed reporting requirement that could apply to a range of manufacturers and importers of products containing PFAS, potentially scooping up everyone from manufacturers and importers of such products as water-repellant t-shirts, nonstick cooking ware and high performance mountain gear and more. This new Part 705 to the Toxic Substances Control Act (TSCA) regulation (TSCA PFAS Reporting Rule) seeks to impose a one-time reporting requirement on all manufacturers and importers of PFAS or finished products containing PFAS to provide a wide variety of information regarding the PFAS dating back to January 1, 2011. We followed up in 2022 when it appeared that EPA, prompted by comments and concerns of the Small Business Administration, was taking a look at the scope of the rule and its anticipated costs. Our hope was that EPA would retreat from its previous broad applicability and look to include exemptions found under other TSCA programs, such as a minimum quantity threshold or an exemption for small businesses.

However, our high hopes for EPA were not to be fulfilled. EPA issued the final rule on October 11, 2023. The TSCA PFAS Reporting Rule continues in its broad form, making only slight modifications around the edges; none of which will provide material relief to the majority of entities subject to the rule. As a result, the TSCA Reporting Rule could reach a huge universe of potential reporters, many of which have never been subject to TSCA requirements."