Lynn L. Bergeson Quoted in Chemical Watch Article "EPA prepares to issue TSCA PFAS reporting rule proposal"

On April 9, 2021, Chemical Watch featured comments by Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®) regarding a proposed per- and polyfluoroalkyl substance (PFAS) reporting rule under the Toxic Substances Control Act (TSCA), requiring manufacturers to submit detailed information on these compounds to guide potential regulatory action.

The US EPA is nearing completion of a proposed per- and polyfluoroalkyl substance (PFAS) reporting rule under TSCA, requiring manufacturers to submit detailed information on these compounds to guide potential regulatory action.

"This is a pretty big rule", possibly entailing a great deal of time-consuming reporting on the EPA’s Central Data Exchange (CDX) site, said Lynn Bergeson, managing partner at Bergeson & Campbell. Involved parties should carefully read and comment on the proposal and proactively devise compliance strategies. 

The National Defense Authorization Act (NDAA) for fiscal year 2020 amended TSCA section 8(a) with a one-time disclosure obligation for PFASs manufactured and imported after 1 January 2011. The EPA has sent a proposed reporting rule to the White House Office of Management and Budget for review. The proposed rule is expected to be released by next month, Ms Bergeson told Chemical Watch.

The final rule, which is due by 1 January 2023, could require companies to file a report covering each year they produced, processed or imported any of thousands of types of PFASs, said Ms Bergeson. Required information could include a substance’s trade name, chemical identity, molecular structure, use categories, estimated total quantity made or imported, environmental and health impacts, and disposal and exposure data. The rule also may not include a minimum disclosure threshold, Ms Bergeson added.


The agency seeks a "baseline calculus" of manufactured, processed and imported PFASs, Ms Bergeson noted, wielding its TSCA "recordkeeping and reporting authority to try to get a handle" on the amount of these substances in the economy. 

Studying the information, Ms Bergeson added, the EPA will probably focus on long-chain PFASs’ various uses and fate, including their role in water contamination, and look at uses to regulate or ensure are safe.

The rule will not be "a walk in the park" because PFASs "have never been subject to this type of reporting", Ms Bergeson noted, and companies must create robust, consistent data collection and disclosure systems to avoid liability. 

Ms Bergeson recommends taking the proposed rule as a basic approximation of the finalised one while designing and piloting these processes. Such preparation can yield insightful comments on how to strengthen the rule and "provide information that is more useful for EPA rulemaking purposes" without unnecessarily burdening industry, she told Chemical Watch.


Ms Bergeson said businesses should also start "identifying product lines that might include manufacturing or processing these substances" and updating supplier certifications to enable PFAS disclosure and accurate reporting. However, Ms Bergeson noted, if manufacturers and processors must furnish details on the same compounds, which may change form across supply chains, reporting complications and inflated figures could result.

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