As a reminder, the Environmental Protection Agency (EPA) proposed a rule last month that would enhance (1) reporting of perfluoroalkyl and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) and (2) related supplier notification requirements. The deadline to comment on EPA’s proposed rule is February 3, 2023.

The EPA’s 2021 PFAS Strategic Roadmap detailed EPA’s intention “to propose a rulemaking in 2022 to categorize the PFAS on the TRI list as ‘Chemicals of Special Concern’ and to remove the de minimis eligibility from supplier notification requirements for all ‘Chemicals of Special Concern.’” The proposed rule advances those intentions.

First, facilities in various industries currently report to EPA annually quantities of TRI-listed chemicals that were released into the environment or otherwise managed as waste. Issued under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA), the current proposal would primarily eliminate a longstanding de minimis exemption that applied to facilities where PFAS chemicals were used in small or even negligible concentrations. Companies would be prohibited from excluding chemicals with concentrations below 1% in mixtures/products from their calculation determining whether they exceed the reporting threshold. In addition, facilities cannot avail themselves of reporting PFAS on the simplified reporting form, Form A (Alternate Threshold Certification Statement). All said, many companies will be required to annually report PFAS data if the proposed rule is adopted.

Second, under the de minimis exemption to the Supplier Notification Requirements, suppliers are not required to notify purchasers over mixtures or trade name products containing the listed toxic chemicals if the chemicals were present at concentrations below 1% of the mixture. EPA now proposes to 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, including certain PFAS that the proposed rule would deem Chemicals of Special Concern.   The bottom line: if your company manufactures, imports, or processes a TRI-listed PFAS, and sells or otherwise distributes (including via intra-company transfers) any mixtures or trade name products containing that TRI-listed PFAS, the EPA’s proposed rule will likely add to your annual reporting and notification obligations. While the proposed rule does not identify an effective date for the changes, it may be prudent to plan ahead for the 2024 reporting year.