Reporting Requirements of materials that may contain PFAS

By Dan Reinke

The US EPA is requiring all US manufacturers to spend hundreds to thousands of labor hours to generate reports identifying all materials and articles they imported between January 1, 2011 and December 31, 2022 that contained any per- and polyfluoroalkyl substances (PFAS). PFAS, a broad family of chemicals including fluoropolymers like PTFE (aka Teflon) is a top priority of the EPA. The reporting rule, contained in 40 CFR 705, was issued on October 11, 2023. In September 2024 the reporting deadline was extended from May 2025 to January 2026, with a six-month extension for small companies that only need to report based on imported articles. EPA estimates there are 225,000 companies that have imported articles during the time period and of these 131,000 have imported PFAS in articles that will trigger submitting a report.

In addition to the import reporting requirement, companies must also report on any manufacturing of PFAS materials during the same time period. EPA estimates 250 companies will be subject to the more extensive manufacturing reporting requirements. The focus of this article is on the importing requirements.

This article is to alert US companies, including manufacturers of energetics, of their reporting requirement. Further information can be obtained at https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-8a7-reporting-and-recordkeeping.

To guide companies in preparing these reports, EPA has developed a reference listing the types of materials that may contain PFAS. These include:

• Wire and cable
• Coatings
• Paints
• Lithium batteries
• Printed circuit boards
• Cable and wire insulation, gaskets and hoses
• Ammunition

So, if your US company has imported any items between 2011 and 2022, inclusive, that contain wires, coatings, paints, batteries, circuit boards, etc. you may need to submit a report. Importing can be for purchase of a raw material, machinery, tooling, etc., or it can also be receiving returned products that your firm may have sent to international customers if you are the importer of record.

EPA requires companies meet a standard of “reasonably ascertainable” when gathering information for this report. EPA defines “known to or reasonably ascertainable by” to mean all information in a person's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know. Testing and chemical analysis is not required by the standard but if you do not know information on the chemicals used in articles you imported and fluorinated chemicals are often used in those articles EPA has noted an expectation that you contact the supplier(s) to determine the name, CASRN, and molecular structure of the chemicals used in the article.

So, how might you comply with the review and reporting requirement? Below is one approach based on current available EPA guidance. Consultant and/or legal advice is recommended to ensure you meet regulatory requirements as reports will likely be reviewed by third parties interested in taking legal action against significant sources of PFAS in the environment. There are limited opportunities to claim information submitted as confidential.

Step 1: Determine what materials and articles you have imported during 2011-2022

Depending on how many ERP or purchasing systems you have used over this time period, this can be an IT nightmare. The first step is to identify non-US suppliers in your purchasing systems. For each non-US supplier you then need to identify all shipments from those suppliers where your organization was the importer of record. When systems are queried you should document the review process that was used.
Organizations may have other imported materials that will also need to be documented and evaluated. These can include inter-company shipments between non-US and US locations, foreign samples or raw materials acquired outside of the purchasing systems, or company products returned from foreign customers or used in international demonstrations or trade shows. Information on these transactions can come from interviews with key employees and reviews of freight forwarder records. All interviews should be documented to demonstrate adherence to the reasonably ascertainable standard.

Step 2: Determine which, if any, of the imported items contain or may contain a PFAS and what PFAS(s) is present

If, after reviewing all reasonably ascertainable information, you determine that no imported items contain PFAS as defined under the TSCA regulation, you are done at this step. Sources of information on PFAS content can include safety data sheets, product documents or supplier websites. If after reviewing all available information you are unsure, for example, if the wires you bought from Canada have a coating that may contain a PFAS, EPA’s guidance notes you need to contact the supplier to attempt to obtain information on the contents of the articles. If you have many foreign suppliers and purchases it may be worth engaging a consultant to support this information gathering and review process.

If a foreign supplier has the specific information on the PFAS used but is not willing to share it, the supplier can submit a confidential joint submission.

While articles obtained from US suppliers are exempt from the reporting requirement, if you purchase US-supplied articles for inclusion in your products, ship your products outside the US and then have them returned, such as for servicing in the US, this will then trigger that you reasonably ascertain any PFAS contents of all articles and materials used in your products.

For all imported PFAS you must identify the specific types and amounts of PFAS materials imported and report that for each year.

Step 3: Identify the types and amounts of PFAS materials imported by year

For articles, you can report the volume of the article imported rather than attempting to calculate the volume of PFAS contained within the articles. You may report this as the total weight of the PFAS-containing articles or the quantity of the article imported (e.g. the number of vehicles).

The TSCA report is completed for each specific PFAS and includes the identify (e.g. CASRN) and properties of each PFAS. If the specific identify is not able to be identified, provide the generic chemical name or description of the PFAS instead.

For businesses that import but do not manufacture PFAS, these three steps get you most of the information needed to complete the streamlined report. Reports are to be submitted electronically, using EPA’s Central Data Exchange (cdx.epa.gov).

Businesses that manufacture PFAS compounds, either intentionally or unintentionally, have to gather and submit additional information including how the material is used including if it is in a product intended for use by children, production and waste volumes, how many workers are exposed to the PFAS and for how long, if any wastes are incinerated on-site, etc.

The recent extension of the reporting deadline provides US businesses time to conduct a thorough review of their import records and gather the information required for their submittals.