Less than one month ago, EPA released its final reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). A Taft PFAS Insights post on that rule is available here. Now, just a few short weeks after issuing that rule, which imposed a one-time reporting requirement for PFAS uses, production volumes, manufacturing byproducts, disposal practices, and PFAS exposures from 2011-2022, EPA is set to issue a final rule that amends reporting requirements for PFAS under the Toxics Release Inventory (TRI).

The TRI, created by the Emergency Planning and Community Right-to-Know Act (EPCRA), is a collection of information gathered from the reporting of toxic chemical releases and pollution prevention activities, as required of industrial and federal facilities. Facilities that manufacture, process, or otherwise use notable quantities of any of the over 780 TRI-listed chemicals must report annually the quantities of those chemicals released into the environment or otherwise managed as waste. The vast majority of the 189 chemicals in the PFAS family were added to the TRI list for the 2021 reporting period, and since that time facilities have been required to file an annual report for the TRI if they manufactured, processed, or otherwise used more than 100 pounds of those chemicals in the annual reporting period. Facilities that fell under that volume (the de minimis amount) were previously exempt from the PFAS reporting requirements.

EPA’s new proposed rule, which was approved by the White House Office of Management and Budget on October 17, 2023, and is set to be published soon in the Federal Register, will classify all 189 PFAS chemicals on the TRI list as “chemicals of special concern,” making them ineligible for the de minimis reporting exemption. The new proposed rule will also eliminate the de minimis exemption for purposes of supplier notification requirements to downstream facilities for all chemicals on the list of chemicals of special concern, including the 189 PFAS chemicals on the TRI list. The new rule will thus require reporting of the manufacture, processing, or use in any amount of these 189 PFAS chemicals, and will also require disclosure of even small amounts of these PFAS chemicals in mixtures and in finished products.

Although the final rule has not yet been published in the Federal Register, the pre-publication version, which is not the official version, can be found here. For manufacturers that manufacture or use any of the 189 PFAS chemicals in their processes or products, the new rule will impose additional TRI reporting and disclosures to downstream users. And for those companies that purchase mixed chemicals or finished components/products, the new rule will require additional transparency concerning the presence of PFAS chemicals.

Photo of Michael Meyer Michael Meyer

Michael is an experienced litigator and trial lawyer and represents clients in civil matters in state and federal courts across Ohio, Indiana, and in multiple other jurisdictions nationwide. He has considerable experience representing manufacturers in a variety of industries in cases involving product…

Michael is an experienced litigator and trial lawyer and represents clients in civil matters in state and federal courts across Ohio, Indiana, and in multiple other jurisdictions nationwide. He has considerable experience representing manufacturers in a variety of industries in cases involving product liability and personal injury claims. He has also represented clients in the commercial development and construction industries in matters involving construction defect and delay claims. Michael also counsels clients in a wide range of commercial and industrial settings on issues involving insurance coverage for a variety of claims under general commercial liability policies.