PFAS “Lookback” Reporting: Delayed in the US, Moving Ahead in Canada

As regulatory activity and litigation concerning per- and polyfluoroalkyl substances (“PFAS”) continue to pick up across the U.S. and around the world, recent developments in North America highlight one of the challenges faced by companies with international operations and supply chains—preparing for and complying with diverging requirements in different jurisdictions. In particular, the U.S. Environmental Protection Agency (“U.S. EPA”), pursuant to the Toxic Substances Control Act (“TSCA”), and the Government of Canada, pursuant to the Canadian Environmental Protection Act (“CEPA”), both recently established “lookback” reporting requirements related to PFAS. While the details differ, both requirements aim to collect historical information related to PFAS from manufacturers and importers of PFAS or PFAS-containing articles in each jurisdiction, and both rules established reporting deadlines in 2025. Recently, however, the U.S. EPA has amended its rule, pushing deadlines to 2026, leaving some companies wondering how to strategically manage the diverging reporting obligations on both sides of the U.S.-Canadian border.

U.S. EPA TSCA Section 8(a)(7)

As noted in a prior Clark Hill alert, the U.S. EPA published a final rule on Oct. 11, 2023, under TSCA requiring PFAS manufacturers (defined under the rule to include importers) to submit a one-time report looking back at their commercial use of PFAS for the time period from 2011 through 2022.

PFAS manufacturers were given 12 months to collect the necessary information (i.e., Nov. 12, 2024), followed by a six-month reporting period (i.e., reports were to be submitted to U.S. EPA by May 13, 2025). Additionally, “small manufacturers” solely reporting data on imported PFAS contained in manufactured articles would have six months beyond that to report. The rule is a one-time reporting obligation under TSCA Section 8(a)(7), but it encompasses any PFAS with one of three molecular sub-structures described in the rule and provides virtually no exemptions or minimum thresholds for reporting. As such, the reporting rule impacts a wide range of businesses and requires extensive data gathering, including documentation of due diligence efforts to gather that information. Given the challenges related to this rule, the U.S. EPA has issued various guidance documents to aid with compliance, including TSCA Section 8(a)(7) Rule Frequently Asked Questions, updated Instructions for Reporting PFAS Under TSCA Section 8(a)(7), and a Public List of TSCA PFAS for 8(a)(7) Rule.

Most recently, however, the U.S. EPA announced, via direct final rule, its modification of the deadlines under the rule, including shifting the start of the data submission period from Nov. 12, 2024, to July 11, 2025, and shifting the reporting deadline from May 13, 2025, to Jan. 11, 2026 (with an additional six months for small importers of PFAS-containing articles). The U.S. EPA explained that it was “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., developments to U.S. EPA’s Central Data Exchange (“CDX”) system. The agency also used the direct final rule to correct an unrelated typing error in the text.

Canada’s Notice with Respect to PFAS

Parallel to the TSCA rulemaking developments in the U.S., the Government of Canada has also moved ahead with TSCA reporting obligations affecting manufacturers and importers in Canada, publishing the Notice with respect to certain per- and polyfluoroalkyl substances (PFAS) in the Canada Gazette, Part I on July 27, 2024, pursuant to paragraph 71(1)(b) of CEPA. The Notice requires certain Canadian manufacturers, importers, and users of the listed types of PFAS to submit a report by Jan. 29, 2025, for activities conducted in the 2023 calendar year. This lookback period is, of course, significantly shorter than the relevant time period under the U.S. rule. Additionally, the listed types of PFAS number 312, a much shorter list than the list of substances encompassed by the U.S. rule, and the Canadian Notice provides for various exclusions and exemptions, unlike the U.S. rule.

Similar to the U.S. EPA, however, the Government of Canada has provided resources to aid businesses with compliance, including a Guidance manual for responding to the: Notice with respect to certain per- and polyfluoroalkyl substances (PFAS) and a generic form to help businesses with collecting information from their foreign suppliers (Request for information from foreign suppliers). Reporting in Canada will be done electronically using the provided Excel Reporting File, which must be timely submitted through the online reporting system of Environment and Climate Change Canada (“ECCC”). Businesses required to report may request an extension in advance of the Jan. 29, 2025 deadline should they require more time to respond to the notice. Section 5 of the Guidance manual addresses the necessary method and contents of such requests.

Next Steps

Companies affected by one or both of these “lookback” reporting rules should continue to work on gathering the required information and taking necessary steps to meet their compliance obligations. In terms of timing, while the U.S. EPA’s deadline extension appears fairly certain, it is worth noting that the agency has reserved the right to withdraw this direct final rule if it “receives adverse comments by Oct. 7, 2024.” This means there remains a possibility that the general deadline will revert to May 13, 2025, if anyone objects to the action taken by the U.S. EPA by Oct. 7, 2024. Moreover, the looming Jan. 29, 2025, reporting deadline in Canada means companies affected by both rules must continue to look forward and develop their reporting strategies in coordination with legal counsel. Clark Hill’s Environmental & Natural Resources team offers seasoned, effective assistance to clients facing developing and diverging legal obligations related to PFAS and emerging contaminants.

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