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EPA's Long-Awaited Final PFAS Reporting Rule: Wide-Ranging Impact, Extensive Reporting Obligations

Expanded PFAS Definition, Twelve-Year Reporting Period, No Small Business or De Minimis Exceptions

An encore presentation with Live Q&A.

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, February 27, 2024

Recorded event now available

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This CLE webinar will guide practitioners through the EPA's recently released final PFAS reporting rule. The panel will discuss who is subject to the rule, the scope of reportable information, the level of due diligence to be performed by submitters when gathering data, and other requirements. The panel will address the possible effects of the wide-ranging rule on future EPA PFAS rulemaking and PFAS litigation and describe best practices for compliance.

Description

On Sept. 28, 2023, the EPA released its long-awaited final PFAS reporting rule "Toxic Substances Control Act (TSCA) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)." The final rule revises the 2021 draft rule in significant ways, is wide-ranging in impact, and may affect companies that do not even realize they are subject to the rule.

The final rule expands the definition of PFAS using a structural definition, rather than a discrete list of chemicals, to avoid inadvertently limiting the scope of reporting. The rule requires that any entity that has manufactured or imported PFAS will have either 18 or 24 months from the final rule's Nov. 13, 2023, effective date to submit a report of PFAS usage for a 12-year period (2011-2022).

The rule provides the categories of information that should be produced and describes the reporting standard as information "known to or reasonably ascertainable by" the submitter. While this standard is narrower than the scope originally proposed in the draft rule, covered entities will still need to carefully perform their due diligence, examining internal records and undertaking external outreach to suppliers. The rule does not exempt small businesses or include de minimis exceptions. Therefore, compliance may prove to be a challenge for companies that generally have not kept records of such information.

Given the significant scope of information to be produced and the risk of penalties for noncompliance, counsel should be familiar with the rule and how to best advise clients to begin gathering the data required in order to meet the EPA's deadline.

Listen as our expert panel guides practitioners through the EPA's impactful final PFAS reporting rule and provides best practices for compliance.

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Outline

  1. History of EPA's PFAS reporting rule
  2. Final PFAS reporting rule
    1. Expanded PFAS definition
    2. Covered entities, activities, and products/substances
      1. Manufacturing and importing during calendar years 2011-2022
      2. Covered products/substances
      3. No small business or de minimis exceptions
    3. Reporting standard
      1. Information known to or reasonably ascertainable by the submitter
      2. Level of due diligence required
    4. Reportable information
    5. Reporting deadlines: 18 vs. 24 months
    6. Confidential business information claims
    7. Recordkeeping requirements
    8. EPA enforcement penalties
  3. Possible effects on future EPA rulemaking and PFAS litigation
  4. Best practices for compliance

Benefits

The panel will review these and other key issues:

  • Who is required to submit PFAS reports under the final rule?
  • What is the scope of information required to be reported?
  • How will submitters satisfy the information "known to or reasonably ascertainable by" standard required for gathering data?
  • How may the rule impact small businesses?
  • What are the penalties for noncompliance?

An encore presentation featuring Live Q&A.

Faculty

Pollack, James
James Pollack

Attorney
Marten Law

Mr. Pollack leads the firm’s consumer products regulatory practice. He helps consumer product manufacturers in...  |  Read More

Neuschafer, Brandon
Brandon W. Neuschafer

Partner
Arnold & Porter Kaye Scholer

Mr. Neuschafer’s practice draws on his diverse experience advising clients on operational, regulatory and...  |  Read More

Thurlow, Matthew
Matt Thurlow

Partner, Co-Chair Environmental Team
Baker & Hostetler

Mr. Thurlow is an environmental litigator with significant experience in environmental matters brought under the Clean...  |  Read More

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