Yesterday the U.S. Environmental Protection Agency (EPA) proposed to reclassify per- and polyfluoroalkyl substances (PFAS) as chemicals of special concern under the Toxics Release Inventory (TRI). PFAS are widely used chemicals, some of which have been linked to certain adverse health effects. This proposed rule is expected to increase reporting of PFAS under the TRI by eliminating the de minimis exemption, an exemption that does not require facilities to report information on chemicals listed on the TRI when the chemicals are used in de minimis concentrations.

Under the Emergency Planning and Community Right-to-Know Act (EPCRA), the EPA requires that certain industry sectors (i.e., large manufacturing facilities, metal mining facilities, electric power generating facilities, hazardous waste treatment facilities) and federal facilities report the amount of each TRI-listed chemical that they release into the environment and/or manage each year.

Since 2020 the EPA has added 180 PFAS to the TRI with the intent of collecting information about PFAS usage, management, and release. However, because PFAS are used in small concentrations in many products, some facilities have not had to report their PFAS usage and management. Currently, the de minimis exemption does not require facilities to report on most TRI-listed PFAS if PFAS make up 1% or less of a product (the de minimis threshold for PFOA is 0.1%). The proposed rule would list all 180 TRI-listed PFAS as chemicals of special concern, rendering them ineligible for the de minimis exemption.

The EPA is also proposing to remove the de minimis exemption for all chemicals of special concern for purposes of the Supplier Notification requirements. Currently, the de minimis exemption allows suppliers to refrain from providing notification when a product contains less than 1% of a chemical of special concern. By removing the de minimis exemption, the EPA hopes to ensure that purchasers of products containing PFAS chemicals are informed of the presence of PFAS in the products they purchase.

Members of the public have until February 3, 2023, to comment on the proposed rule.