Lynn Bergeson explains how software development delays prompt eight-month extension, giving manufacturers and importers crucial extra time to prepare for complex TSCA requirements.
EPA Extends PFAS Reporting Deadline: The EPA delayed the Toxic Substances Control Act (TSCA) PFAS reporting deadline by eight months, from May 8, 2025, to January 11, 2026, with an extended deadline for small manufacturers reporting as article importers.
Broad Reporting Requirements: PFAS reporting under TSCA Section 8(a)(7) includes even small amounts, impurities, or byproducts, posing significant challenges for companies, especially importers who may not have detailed knowledge of their product's chemical makeup.
Software Development Delays: The extension was primarily driven by delays in developing and testing the software needed for PFAS data collection, ensuring smoother reporting and compliance once the system is fully operational.
We heard a loud, collective sigh of relief when the U.S. Environmental Protection Agency (EPA) unexpectedly published a direct final rule on Sept. 5, delaying the Toxic Substances Control Act (TSCA) perfluoroalkyl and polyfluoroalkyl substances (PFAS) reporting deadline by an additional eight months.
The rule delayed the deadline from May 8, 2025, to January 11, 2026. For any company reporting exclusively as an article importer and is also considered a small manufacturer, the submission period will end on July 11, 2026. As discussed below, this is welcome news, and entities subject to the reporting obligation are urged to use the additional time wisely.
Background
To summarize what is required, TSCA Section 8(a)(7) mandates the EPA to collect information on chemical substances manufactured and imported for commercial purposes, including substances present in mixtures, that are defined by the EPA as PFAS under the rule. Unlike other TSCA reporting rules, there are essentially no reporting exemptions.
PFAS present as impurities, byproducts, contained in articles, or found in trivial amounts are included in the scope for the reporting obligation. To compound the complexity, the rule defines PFAS in narrative form as chemical structures and reporting entities must assess whether their substances fit within the narrative definitions, which is not easy. Reference to an explicit list of substances alone will not confirm the scope of a reporter’s obligation. These inconvenient facts have made entities subject to the reporting obligation very anxious.
As readers know, the reporting obligation is hitting article importers especially hard, as typically importers are not aware of the chemical components of what they’re importing. When the EPA announced the delayed reporting deadline, some people thought the agency delayed the deadline based on its recognition of the extraordinary due diligence burden the rule created and its determination that more time was needed.
While the EPA may well be aware of this burden and even sympathetic to it, the delayed reporting was necessitated for another reason. According to the direct final rule, the EPA “is compelled to take this action in response to constraints on the timely development and testing of the software being developed to collect information pursuant to this reporting rule (i.e., the rule’s reporting application).”
The EPA noted that the postponement of the submission period will result in additional time for the reporting application to be completed and sufficiently tested “to ensure that reporting entities do not experience issues that prevent their submission of data … .” the EPA “further anticipates” being able to review submitted data, including confidential business information (CBI) claims and prepare non-CBI data for broader dissemination more efficiently, if the full data collection infrastructure is established prior to the start of the submission period.
The EPA states that this action is consistent with the public interest “because it is designed to facilitate compliance with the rule and to ensure that the collection includes accurate data on manufactured PFAS in the United States. Any impact on the regulated community is expected to be beneficial given that the extension provides additional time to submit accurate reports to EPA.”
The delay also allows the EPA to take action to correct an error in the rulemaking by revising the text “published study reports” under the requirement to submit Organization for Economic Co-operation and Development’s (OECD) Harmonized Templates (OHT) to the correct requirement of submitting OHTs for “unpublished study reports.”
The EPA states that there are no other changes to the reporting and recordkeeping requirements in the existing rule.
The direct final rule will be effective Nov. 4.
Using the Additional Time Wisely
Because entities are overwhelmed with reporting obligations of all sorts, chemical data reporting, state PFAS reporting obligations, and the many other routine submissions required by government authorities, the reporting reprieve might invite a false sense of security. There literally is no time to relax and enjoy the reprieve.
Consider taking these measures in the meantime:
First, ensure your PFAS reporting protocol is written, compliant with the due diligence standard set out in the rule and aligned with other reporting protocols the company observes.
Second, consider structuring the reporting function as an exercise under the direction of legal counsel to enable the assertion of the attorney-client privilege and other privileges as appropriate. This will help protect collected information and the interpretation of this information by counsel from discovery by third parties in litigation contexts.
Third, consider structuring the TSCA reporting exercise in a way that also facilitates the collection of other PFAS reporting and regulatory obligations to minimize the number of supplier surveys and other due diligence measures that must be taken. By thoughtfully and strategically thinking though multiple reporting obligations, organizations can more efficiently address their reporting burdens.
The additional eight months is a welcome reprieve. Use the time wisely.
About the Author
Lynn L. Bergeson, Compliance Advisor columnist
LYNN L. BERGESON is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.
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