UPDATE: On October 30, 2023, the EPA released the public inspection version of the final rule “Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting.”

EPA will publish the final rule on October 31, 2023, in the Federal Register and it becomes effective on November 30, 2023. It will apply for the reporting year beginning January 1, 2024, with initial reports due July 1, 2025.

On October 18, 2023, the U.S. Environmental Protection Agency (EPA) released a new final rule that categorized as chemicals of special concern all per- and poly-fluoroalkyl substances (PFAS) that industry must currently report in the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA). This rule expands the reporting of listed PFAS by eliminating the de minimis exemption for the 189 PFAS that must be reported in the TRI. EPA stated that increased reporting will enable the agency to better examine the uses, releases, and waste management quantities of these PFAS. The rule becomes effective January 1, 2024, and requires covered facilities to report to EPA by July 1, 2025. The rule is expected to be published in the Federal Register soon.

Who Is Affected?

The rule requires reporting from a wide variety of industries, including companies that manufacture, process, import, or use PFAS listed under 40 CFR 372.28. Specific exemptions exist for some NAICS codes, which EPA provides here. Companies should carefully assess whether reporting is required.

Background

The National Defense Authorization Act for Fiscal Year 2020 (NDAA) added specific PFAS to the list of chemicals subject to TRI reporting. EPA implemented the NDAA by adding 172 PFAS to the TRI list in June 2020. The NDAA requires that PFAS that meet the criteria set forth in the NDAA be automatically added to the TRI list the year after the specific criteria are met. Some criteria are that the substance has a final toxicity value, a significant new use rule addressing the substance, addition of a substance to an existing significant new use rule, addition as an active chemical substance, or a substance added to the list under TSCA. To date, EPA has added 189 PFAS to the TRI list as a result of the NDAA. The NDAA also established a 100-pound reporting threshold, which applies to both PFAS that are currently on the TRI list and future PFAS added to the list as a result of the NDAA.

New Rule

The new rule identifies all PFAS currently listed on the TRI list as chemicals of special concern. The rule also requires that any additional PFAS listed as a result of the NDAA be identified as chemicals of special concern in the future. The reporting threshold for chemicals of special concern is lower than other TRI reporting thresholds and is excluded from TRI’s de minimis exemption, which would otherwise exempt entities from having to report negligible amounts of substances under 1%.

Because the rule identifies these PFAS as chemicals of special concern, the de minimis exemption is no longer available for TRI reporting, likely resulting in more entities reporting on PFAS. The de minimis exemption for Supplier Notification Requests is also unavailable for chemicals of special concern. EPA is eliminating the supplier notification de minimis exemption to collect more information on the amounts of PFAS released.   

Conclusion

This new rule highlights EPA’s continued emphasis on PFAS and will affect many parties using, manufacturing, or processing PFAS due to the low reporting threshold as well as the elimination of the de minimis exemptions that previously applied.

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical and products companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. Our Consumer Products and Product Stewardship, Global Supply Chains practices work with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.