TSCA PFAS Reporting: Implications Of EPA's New Statutory Interpretation On Articles

Headlines regarding the U.S. Environmental Protection Agency's (EPA) most recent proposed update to the one-time per- and polyfluoroalkyl substances (PFAS) reporting rule under Toxic Substances Control Act (TSCA) Section 8(a)(7) have been dominated by the rule's new exemptions and the significant narrowing of responsibility and burden that industry stakeholders will face if the rule becomes final. But, buried in the preambular text — Unit III.A.2 to be precise — are a few paragraphs that caught our attention: a proposed interpretation that EPA lacks statutory authority to require reporting by those who import PFAS in articles.

EPA now states that the law is "best read as excluding articles and targeting the reporting requirement to manufacturers of the PFAS themselves." EPA rationalizes that Congress "could have said so" if it desired the reporting requirements to extend to those who import articles containing PFAS. In EPA's words: "[w]here Congress omits