Extracted from Law360
On Nov. 13, the U.S. Environmental Protection Agency proposed revisions to the Toxic Substances Control Act's per- and polyfluoroalkyl substances reporting rule that would substantially narrow reporting obligations, but would significantly accelerate the timeline for data submissions.
The proposal introduces six exemptions, shortens the submission period to three months, advances the start date, and provides several technical corrections and clarifications.
The EPA maintains that the changes — particularly the exemptions — will reduce industry costs and avoid duplicative reporting requirements. However, in the near term, companies will face a significant compliance burden, given the shorter submission period.
Businesses should assess how the proposal affects their reporting obligations, and consider submitting comments before the Dec. 29 deadline.
TSCA PFAS Reporting Rule
The TSCA PFAS reporting rule was promulgated in October 2023.
It requires manufacturers, including importers and small manufacturers, to electronically report PFAS data for any year from 2011 through 2022, including information on use, production volumes, disposal, exposures and hazards.
Previous Delays and Public Comments
The EPA has twice delayed the reporting deadline:
- In September 2024, the agency postponed the original start date of Nov. 21, 2024, to July 11 of this year.
- In May of this year, the agency issued an interim final rule that delayed the TSCA PFAS reporting rule submission period again, to April 13 to Oct. 13, 2026, with an April 13, 2027, deadline for small manufacturers reporting solely as article importers.
When announcing the interim final rule in May, the EPA also stated that it may reopen certain aspects of the rule to public comment, citing concerns about overburdening small businesses and article importers.
In response, stakeholders requested exemptions — for example, for article importers and for de minimis PFAS concentrations — and sought clarification on the "known or reasonably ascertainable" due diligence standard and concerns about the Central Data Exchange data submission platform.
On Aug. 29, the EPA sent a proposed revision to the White House Office of Management and Budget for review. The proposal was expected to be published this month, with a final rule anticipated in June 2026.
Proposed Exemptions and Other Changes
In the proposed rule, the EPA introduced six exemptions:
- PFAS manufactured or imported in mixtures or articles at concentrations below 0.1% — a de minimis exemption;
- PFAS imported as part of an "article," as defined in Title 40 of the Code of Federal Regulations, Section 704.3;
- PFAS solely manufactured as "byproducts," as described in Section 720.30(h), and not used commercially;
- PFAS present as an "impurity," as defined in Section 704.3;
- Non-isolated intermediates; and
- PFAS manufactured or imported in small quantities solely for research and development.
The EPA stated that these exemptions are intended to align with the TSCA chemical data reporting rule, with the addition of the de minimis exemption, which would apply regardless of total production volume of the mixture or article.
The agency also indicated it may consider future data requests for research and development chemicals if necessary.
The EPA also proposed adjustments to the reporting schedule. Under the proposal, the submission period will begin 60 days after the effective date of the final rule, and last for three months.
Because of the proposed exemption for article importers, the EPA would remove the later deadline for small manufacturers reporting exclusively as article importers. The agency explained that given the time that has passed since the 2023 rule was issued, reporting entities have had adequate time to prepare.
Additionally, the agency proposed a few technical corrections to clarify what must be reported in certain fields, including clarifications on the scope of environmental and health effects information and updates to product category names.
Reasons for the Proposed Changes
The EPA stated that the main reasons for the proposed changes are to reduce compliance costs and burdens on industry, and to avoid unnecessary or duplicative reporting. The agency emphasized that the proposed exemptions are the primary purpose of the proposed rule.
The EPA's express goal is to exempt "reporting on activities about which manufacturers are least likely to know or reasonably ascertain," and to apply reporting obligations to only those persons likely to have information relevant to the effective implementation of the TSCA.
The agency estimated cost savings of $786 million to $843 million, based on a reduction of 10 million to 11 million hours. It also reasoned that it may defer collecting certain information until there is a clear role for that information to support an agency mission.
What Did Not Change
The proposed rule would not disturb several other key elements of the existing rule, including:
- The lookback period (Jan. 1, 2011, to Dec. 31, 2022);
- The definition of PFAS;
- The specific data required to be reported; and
- The "known or reasonably ascertainable" due diligence standard.
The EPA's Request for Public Comment
The 45-day comment period is open through Dec. 29. The EPA requested public comment on certain issues, including:
- Whether the de minimis exemption should be 1% rather than the proposed 0.1%, or another appropriate level;
- Potential ways to consolidate the proposed exemptions while providing relief;
- Whether to continue requiring full study reports under Section 705.15(f) or to allow what it calls "robust study summaries," with full study reports available upon EPA request;
- Whether reportable chemicals should be limited to PFAS with a Chemical Abstracts Service Registry number, TSCA accession number or low-volume exemption number;
- Whether to add a production volume threshold below which reporting on a given PFAS would not be required, and what threshold would be appropriate; and
- Whether any assumptions or cost savings calculations in the EPA's economic analysis should be revised.
Impact on Industry
The proposed exemptions heed long-standing industry requests to ease burdens, and would minimize compliance costs for certain PFAS in imported articles; in de minimis concentrations; as impurities, byproducts and nonisolated intermediates; and for research and development uses.
At the same time, the accelerated submission period would introduce a near-term compliance burden. Instead of a six-month reporting period beginning April 13, 2026, companies would have only three months, starting 60 days after the final rule's effective date, likely in mid-2026.
Although the EPA maintains that businesses have had adequate time to prepare, the proposed changes will require businesses to act quickly in preparing their data for submission.
The condensed reporting schedule also raises concerns about whether the Central Data Exchange platform is prepared to receive large amounts of data from many reporting entities in a short period.
The EPA signaled a willingness to consider and potentially incorporate stakeholder input. Five of the six proposed exemptions were included in a May petition submitted to EPA Administrator Lee Zeldin by a coalition of chemical companies.
That letter also suggested several changes the EPA specifically sought further public comment on, such as the production volume threshold, and the option to provide robust study summaries in lieu of full study reports.
Although the agency decided not to propose a production volume threshold, as suggested in stakeholder feedback, the EPA indicated that it was still amenable to comments on the potential benefits and drawbacks of providing such a threshold.
Businesses should consider submitting public comments in an effort to help shape the final rule — including on the proposed exemptions, the adjusted data submission period or the technical clarifications.
Stakeholders may also find it beneficial to focus on the issues the EPA specifically sought input on, such as the appropriate de minimis level, and whether alternatives to full study reports should be allowed.