NASF Submits Comments on PFAS Reporting Requirements

On June 28, 2021 proposed Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) pursuant to TSCA Section 8(a)(7).  NASF submitted comments indicated that the proposed rule did not consider the significant impact on small business, was overly broad, and would be unduly burdensome to the surface finishing industry.  A summary of the NASF comments is provided below.

EPA Failed to Account for the Impact on Small Business - The proposed rule would require manufacturers and importers of PFAS (including importers of articles containing PFAS) to report information from the past ten years for each substance and mixture related to:

• chemical identity and molecular structure;
• categories of use;
• volumes manufactured and processed;
• byproducts resulting from the manufacture, processing, use and disposal;
• environmental and health effects;
• worker exposure; and
• method of disposal. 

This includes information on all PFAS without any exemptions for de minimis amounts, small businesses or articles containing PFAS.  EPA failed to account for the substantial impacts that this rule will have on small business and the surface finishing industry.  Before finalizing the rule, EPA must comply with its statutory requirements to gather input from small businesses potentially impacted by this proposal and consider options to minimize the burdens of the proposed rule on small businesses.

EPA Should Limit the Substances Subject to Reporting - EPA identified 1,346 PFAS on the TSCA Inventory, but in the preamble to the proposed rule EPA stated that this was not a comprehensive list of all PFAS subject to the rule.  Manufacturers would be required to determine whether additional substances are subject to reporting, thereby significantly increasing the burden of reporting and adding to the uncertainty of the proposal.  

NASF requested that EPA limit reporting requirements to those PFAS known to be in commerce or a subset of those known to pose public health and environmental concerns.   

EPA Should Provide Typical Exemptions for Reporting Requirements - The proposed rule does not include exemptions for reporting requirements that are typically provided for EPA reporting rules such as exemptions for de minimis levels, small businesses, and articles.  To minimize the unnecessary burdens of this rule, NASF made several requests:

• EPA should limit reporting to those substances manufactured or imported in excess of threshold based on sound science policy and risk and appropriate policy considerations

• EPA should exclude small businesses from reporting based on the number of employees and revenues, consistent with other TSCA reporting requirements. 

• Despite no mandate to include articles, EPA has determined that articles containing PFAS should be included in the scope of reportable chemical substances, even while acknowledging that some article manufacturers, including article importers, may not have such information.   Manufacturers and importers of articles containing PFAS should not be subject to the reporting requirements.

For some metal plating applications, fume suppressants containing very small amounts of PFAS are used in the finishing process.  To demonstrate that no amount of any PFAS is on the plated part or article, companies could be subject to expensive testing requirements to confirm that reporting is not necessary.

Requiring reporting by manufacturers and importers of articles that contain PFAS will increase the number of entities subject to this reporting rule by thousands, particularly if all large and small businesses must report any amount of any PFAS in articles.  Given the burdens associated with subjecting articles containing PFAS to reporting requirements and EPA’s failure to include the costs associated with reporting imported articles containing PFAS, EPA should delete the requirement for reporting of articles containing PFAS from the proposed rule.

The Ten-Year Reporting Period is Unduly Burdensome - EPA proposed that persons who have manufactured or imported PFAS over the past ten years would report to EPA for each PFAS.

Given the broad scope of chemistries covered by the definition of PFAS, gathering all the available requested data for ten years would represent an overwhelming burden to many companies subject to reporting. 

Phased Approach to Reporting Is Appropriate - The proposed rule requires reporting that can impose a significant burden on a large number of entities. NASF requested that EPA consider requesting this data in a phased approach, whereby only the largest manufacturers and importers of PFAS are subject to the reporting requirements.  If the exemptions, clarifications, and revisions that NASF requested were implemented, EPA could significantly reduce these burdens on a large number of small businesses, without substantially reducing the amount of critical information it collects on the manufacture and import of PFAS.  By streamlining the reporting to the most useful and scientifically valid information in the first place, EPA can better fulfill the mandate to estimate the rulemaking’s economic impacts and burden. 

EPA must complete the final reporting and recordkeeping requirements by January 1, 2023.  NASF will continue to work cooperatively with EPA and other industry trade groups on this proposal.  If you have any questions, would like additional information, or would like to discuss these comments, please contact Jeff Hannapel (jhannapel@thepolicygroup.com) of The Policy Group on behalf of the NASF.

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This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.