The rule itself adds 189 PFAS to the list of chemicals of special concern.
On October 20, 2023, the U.S. Environmental Protection Agency (EPA) issued a final Toxics Release Inventory (TRI) rule eliminating the de minimis exemption for reporting of per- and polyfluoroalkyl substances (PFAS) subject to reporting mandates under the Emergency Planning and Community Right-to-Know Act. The rule designates PFAS as “chemicals of special concern,” meaning that the de minimis exemption is no longer applicable to PFAS. Additionally, the rule makes the de minimis exemption unavailable for purposes of supplier notification requirements to purchasers and downstream manufacturers for all chemicals of special concern, including mercury, lead, dioxin and polychlorinated biphenyls. Companies that fail to comply with the new rule may be required to correct their reports or face civil penalties, including monetary fines.
PFAS are often used in small concentrations, appearing in everyday products like carpets, clothing, furniture fabrics, paper and food packaging, cosmetics, cleaning products, paint, cookware and electronic components. The de minimis exemption previously allowed facilities to disregard amounts of PFAS in chemical mixtures at concentrations below 1 percent—or 0.1 percent for carcinogens—in the materials they use for manufacturing, so these facilities were rarely required to submit PFAS reporting forms. In fact, out of the 75,980 total entries reported in 2021 to TRI from nearly 21,000 facilities, only 92 were PFAS reporting forms. However, since the new rule designates PFAS as chemicals of special concern and thereby eliminates the ability of facilities to rely on the de minimis exemption, facilities will now need to make detailed calculations concerning the amount of PFAS in their products, and the number of PFAS reporting forms required by EPA is expected to increase significantly.
The rule itself adds 189 PFAS to the list of chemicals of special concern. These chemicals—in addition to their exclusion from the de minimis exemption for calculating threshold quantities—are subject to more burdensome reporting requirements. They have lower reporting thresholds (10 or 100 pounds), may not be reported on Form A (Alternate Threshold Certification Statement) and have limits on the use of “range reporting” (i.e., estimating concentrations between high and low ranges). The additional reporting requirements could be particularly challenging for manufacturers that were not previously subject to TRI reporting or notification requirements. Moreover, many manufacturers may not be aware that their products contain PFAS, which might be present as part of a proprietary mixture.
The final rule also makes the de minimis exemption unavailable for purposes of supplier notification requirements to purchasers and downstream manufacturers for all chemicals of special concern, including mercury, lead, dioxin and polychlorinated biphenyls. Similar to the de minimis exemption for calculating threshold amounts discussed above, the de minimis exemption to the supplier notification requirements allows suppliers to omit TRI notifications for mixtures or trade name products containing small concentrations of chemicals. This will impose additional notification requirements on suppliers of products containing chemicals of special concern in small concentrations and require these suppliers to make revisions to product safety data sheets. Downstream manufacturers that receive these revised notifications will, in turn, need to reevaluate their own reporting obligations under TRI.
EPA believes these changes will help “ensure that purchasers of mixtures and trade name products containing these chemicals are informed of their presence in mixtures and products they purchase.” However, the rule is likely to trigger lawsuits challenging EPA’s authority under the Administrative Procedure Act. Opponents are expected to argue EPA failed to show that the PFAS on the TRI list met criteria reserved for certain chemicals barred from using the de minimis exemption. If and when such lawsuits are filed, we will continue to monitor and report on them.
Additionally, the agency’s decision to eliminate the de minimis exemption for PFAS coincides with its recent issuance of a final Toxic Substances Control Act rule requiring companies that have manufactured or imported PFAS for a commercial purpose—whether as a chemical substance or in a mixture or article—to report on their use or importing of PFAS since January 1, 2011. More information on this rule can be found in our October 11 Alert. The two rules are expected to vastly increase the amount of industry reporting related to PFAS.
The TRI reporting rule discussed in this Alert becomes effective 30 days after its publication in the Federal Register, which is expected by the end of the year. It will apply for the reporting year beginning January 1, 2024, with the first reports due July 1, 2025. The pre-publication version of the rule can be found on EPA’s website.
For More Information
If you have any questions about this Alert, please contact Lindsay Ann Brown, Sharon L. Caffrey, Brad A. Molotsky, J.J. Larkins, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.