In a new proposed rule, the U.S. Environmental Protection Agency (EPA) proposes adding 16 individual per- and polyfluoroalkyl substances (PFAS) and 15 categories of PFAS to the list of chemicals subject to reporting in the Toxic Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). EPA also proposes to clarify which EPA actions identifying toxicity vales for PFAS cause these PFAS to be subject to reporting in the TRI under the National Defense Authorization Act for Fiscal Year 2020 (NDAA). This proposed rule comes one year after EPA’s final rule categorizing all TRI-listed PFAS as chemicals of special concern, which eliminated the de minimis exemption for all PFAS subject to reporting in the TRI. Nearly 200 PFAS are subject to reporting in the TRI for reporting year 2024.

Proposed listing of 16 individual PFAS

EPA proposes to add the following individual substances to the list of chemicals subject to TRI reporting. Furthermore, the agency proposes identifying these PFAS as chemicals of special concern and setting the manufacturing, processing, or otherwise use reporting threshold for each chemical at 100 pounds. Finally, EPA proposes to begin reporting these substances in reporting year 2025.

• Broflanilide
• 6:2 Fluorotelomer alcohol (6:2 FTOH)
• Hexaflumuron
• Pyrifluquinazon
• 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4-nonafluoro-N-(2-hydroxyethyl-N-methyl- (MeFBSE)
• 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4-nonafluoro-N-methyl- (MeFBSA)
• Ethanesulfonamide, 1,1,2,2,-pentofluoro-N-[(pentafluoroethyl)sulfonyl]-, lithium salt 
• Pentane, 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-(trifluoromethyl)- 
• Perfluoro(2-ethoxy-2-fluoroethoxy) acetic acid ammonium salt (EEA-NH4)
• 2-Propenoic acid, 2 [methyl[(nonafluorobutyl)sulfonyl]amino]ethyl ester (MeFBSEA)
• Triethoxy(3,3,4,4,5,5,6,6,7,7,8,8,8-tri-deca-fluorooctyl)silane
• Trifluoro(trifluoromethyl) oxirane (HFPO)
• Cyclopentene, 1,3,3,4,4,5,5-heptafluoro (HFCPE)
• Fulvestrant
• Perfluorotridecanoic acid (PFTrDA)
• Tetraconazole

Proposed listing of 15 categories of PFAS

EPA proposes listing by category-specific PFAS plus their associated salts, acyl/sulfonyl halides, and anhydrides, as relevant to that chemical. In some cases, the new category includes additional forms of previously listed chemicals (e.g., perfluorooctanoic acid (PFOS)); in such cases, EPA proposes delisting the individual chemical. While EPA identifies examples for each PFAS category, the list will not be exhaustive, as the categories are open-ended. The 15 categories of PFAS in the proposed rule contain over 100 individual compounds. EPA proposes to identify each category as chemicals of special concern and set the manufacturing, processing, or otherwise use reporting threshold for each category at 100 pounds. Finally, EPA proposes that reporting of these chemicals would begin with reporting year 2025. The categories are:

• Perfluorobutanoic acid (PFBA)
• Perfluorodecanoic acid (PFDA)
• Perfluorohexanoic acid (PFHxA)
• Perflurononanoic acid (PFNA)
• Perfluorooctanesulfonic acid (PFOS)
• Perfluoroundecanoic acid (PFUnA)
• 9-chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9CL-PF3ONS)
• 11-chloroeicosafluoro-3oxaundecane-1-sulfonic acid (11CL-Pf3OUdS)
• 1H,1H,2H,2H-perfluorooctane sulfonic acid (6:2 FTS)
• hexafluoropropylene oxide dimer acid (GenX or HFPO-DA)
• Perfluorobutanesulfonic acid (PFBS)
• Perfluorododecanoic acid (PFDA)
• Perfluorohexanesulfonic acid (PFHxS)
• Perfluorooctanoic acid (PFOA)
• Perfluoropropanoic acid (PFPrA)

EPA estimates that this action would result in an additional 356 to 1,110 TRI reporting forms (i.e., Form Rs) being filed annually. EPA stated that it assessed a combination of human health and ecological risk assessments to evaluate the addition of each substance and category to the TRI list.

Proposed clarification of NDAA

EPA also proposes to clarify which events trigger the automatic (i.e., no rulemaking required) addition of PFAS to the TRI list under NDAA Section 7321(c). PFAS that meet one of the four criteria of Section 7321(c) will be added to the TRI list on January 1 of the following year. One of these criteria is the date EPA finalizes a toxicity value for a PFAS or category of PFAS. EPA proposes to clarify that the following actions by EPA qualify as finalizing a toxicity value under the NDAA for associated PFAS.

1. Publication of a final IRIS assessment that provides a toxicity value;
2. Publication of a final assessment under EPA's Provisional Peer-Reviewed Toxicity Values Program under the Superfund Program;
3. Publication of a final EPA Transcriptomic Assessment Product Report;
4. Publication of a final risk assessment for pesticide registration or registration review decision;
5. Publication of a final risk evaluation under the Toxic Substances Control Act, Section 6;
6. Publication of a final Toxicity Assessment or Health Effects Support Document under the Safe Drinking Water Act or Clean Water Act; and
7. Publication by EPA of other toxicity assessments that include toxicity values.

Additionally, EPA proposes that it will identify the relevant chemical as a PFAS, which is undefined, if the applicable EPA action “determines” that the chemical is a PFAS. EPA explains that this proposed change to the automatic listing process “recognizes that different programs may have reason to use different definitions of PFAS and that definitions of PFAS may evolve” and is intended to ensure consistent implementation of the automatic listing process under the NDAA.

Finally, EPA proposes that when an action that triggers the automatic listing applies to both the acid and associated salts and/or acyl/sulfonyl halides, EPA will interpret that triggering action to apply to the category of those substances. That category will then be automatically added to the TRI list.

The proposed rule and the change to the automatic listing process may affect those who manufacture, process, or otherwise use any PFAS. TRI reporting for the chemicals and categories that would be added by the rule likely would not be required until July 2026. However, any facility that would be required to issue supplier notifications for these newly listed chemicals and categories may need to do so as early as January 2025.

Comments on this rule must be submitted by December 9, 2024.

B&D's robust Chemicals and Litigation practices help companies and trade associations navigate the increasing regulation of emerging contaminants, including PFAS. We frequently assist clients in commenting on, and bringing administrative challenges to, EPA rulemakings. We also advise on TRI reporting and all aspects of chemical regulation under TSCA and other federal and state chemical regulations. For more information, please contact the authors.