In July 2022, we reported on the EPA’s issuance of a final rule adding five PFAS to the list of PFAS chemicals subject to the Toxics Release Inventory (TRI) reporting requirements. The total PFAS subject to the TRI now exceeds 170 separate PFAS. TRI reporting is an issue that has recently seen significant attention by environmentalists who claim that the EPA has not added enough PFAS to the TRI, and that there are too many loopholes in the reporting requirements for the PFAS that are on the list. On such PFAS reporting obligation for companies that is seen as a loophole is the de minimus reporting threshold for PFAS, which does not requires any reporting of PFAS information for use of the chemicals below a certain threshold.

Today, the EPA sent its notice of intent to the the White House Office of Management and Budget (OMB) to remove the exemption from TRI reporting requirements. The removal of the exemption will continue to broaden the impact on industry to comply with the significant PFAS reporting obligations. For any company that manufactures, imports, or utilizes PFAS, it is critical to pay attention to these developments, as well as take a forward-looking compliance assessment approach to likely future expansion of the PFAS TRI reporting requirements.

PFAS Reporting Obligation On Companies

The final rule, published in the July 18 Federal Register, adds five PFAS to the TRI reporting requirement. The fiscal year 2020 National Defense Authorization Act (NDAA) added 172 PFAS to the TRI, but as we previously reported, it also requires that any PFAS with a final toxicity value, subject to a SNUR, or added to the TSCA inventory be added to the TRI. Typically, additions to TRI require a notice and comment period, but in the EPA’s comments in the Federal Register, it specifically notes that it is using the “good cause” exception to forgo the notice and comment period on the rule. “Good cause” in this instance is that the NDAA mandates the addition of PFAS to the TRI.

Currently, any company that uses 100 pounds or more of any of the PFAS on the TRI must report releases of the PFAS to the EPA. In addition, the companies are required to provide reporting to the EPA on the PFAS disposal or recycling. The proposal today by the EPA to eliminate the de minimus exemption would eliminate the  thresholds for reporting, thereby increasing the number of companies that would be subject to TRI reporting obligations.  The EPA’s timeline for removal of the exemption is to put forth its proposed rule in September 2022, and then have a final rule in place by November 2023. This timeline is dependent on the OMB acting quickly and approving the EPA’s plan by next month, however.

Impact On Businesses

The EPA’s recent actions with respect to PFAS and the TRI have continued to increase the number of PFAS subject to TRI reporting requirements, and the EPA now seeks to broaden the reporting obligations even further by eliminating the de minimus exemption. The goal of the EPA is to obtain as much data as possible regarding use, discharge, and disposal of the listed PFAS as possible so that it can understand use and pollution risks of the PFAS. Businesses utilizing any of the PFAS on the TRI must undertake every step necessary to comply with the reporting requirements set forth under the TRI. Companies utilizing PFAS not yet on the TRI must look to the future and prepare now for the possibility that additional PFAS will be added to the TRI, thereby increasing the company’s reporting burdens and increasing the risk for potential lawsuits by citizens, interest groups, or regulatory agencies for pollution.