We reported earlier this year that the Environmental Protection Agency’s (EPA) proposed rule would require stricter (1) reporting of perfluoroalkyl and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) and (2) supplier notification requirements. After receiving 36 comments, the EPA made no substantive changes to the proposed rule. We distill the final rule into its main components below.
First, under two federal statutes, the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA), facilities across different sectors currently submit annual reports to the EPA on the amounts of TRI-listed chemicals they have released or managed as waste. The final rule applies to the reporting year beginning January 1, 2024, with reports due July 1, 2025. The final rule removes a longstanding exemption that allowed facilities to exclude from reporting PFAS chemicals used in minimal concentrations. Companies can no longer use the de minimis exemption to disregard chemicals with concentrations below 1% in mixtures/products when determining if they surpass the EPCRA reporting threshold. As such, facilities are precluded from using the simplified Form A (Alternate Threshold Certification Statement) for PFAS reporting and must instead file the lengthier Form R report. More companies will therefore need to report PFAS data annually, and more detail will be required.
Second, the de minimis exemption to the Supplier Notification Requirements allows suppliers to skip purchaser notifications for mixtures or trade name products with listed toxic chemicals if those chemicals make up less than 1% of the mixture. In the final rule, the EPA has now eliminated the de minimis exemption under the Supplier Notification Requirements for PFAS on the list of Chemicals of Special Concern (i.e., a list of chemicals subject to lower reporting thresholds), no longer exempting mixtures or trade name products with small PFAS concentrations. If your company supplies, imports, or handles a TRI-listed PFAS and either sells or otherwise distributes (even within the company) any mixtures or trade name products with that PFAS, the EPA’s final rule will likely increase your yearly reporting and notification responsibilities – possibly to a significant degree.