EPA Will Add PFAS Subject to TRI Reporting to List of Chemicals of Special Concern

The U.S. Environmental Protection Agency (EPA) announced on October 20, 2023, the release of a final rule that is intended to improve reporting on per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) by eliminating an exemption that allowed facilities to avoid reporting information on PFAS when those chemicals were used in small concentrations. The final rule will add PFAS subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). The final rule notes that PFAS already have a lower reporting activity threshold of 100 pounds. The addition of these PFAS to the list of chemicals of special concern means such PFAS are subject to the same reporting requirements as other chemicals of special concern (i.e., it eliminates the use of the de minimis exemption and the option to use Form A and limits the use of range reporting for PFAS). The final rule states that “[r]emoving the availability of these burden-reduction reporting options will result in a more complete picture of the releases and waste management quantities for these PFAS.” The final rule will remove the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern, “help[ing] ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase to better inform any TRI reporting obligations.” The final rule will be effective 30 days after publication in the Federal Register. It will apply for the reporting year beginning January 1, 2024 (reports due July 1, 2025). EPA has posted a pre-publication version of the final rule. More information about the proposed rule is available in our December 7, 2022, memorandum.