We previously reported on the EPA’s expansion of the Toxics Release Inventory (TRI) reporting requirements to include 189 types of PFAS and the EPA’s proposal to the White House Office of Management and Budget (OMB) to curtail the “de minimus exemption” to TRI PFAS reporting. On Friday, October 20, 2023, the EPA finalized its rule that now officially ends the Trump-era TRI de minimus reporting threshold. The rule will have enormous impacts on numerous companies from a compliance standpoint, as well as increase risk for future PFAS litigation.

The EPA’s actions continue to broaden the impact on industry to comply with the significant 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 reporting requirements.

Newest TRI PFAS Reporting

The EPA added nine PFAS types to the TRI reporting requirements in January 2023, which triggered a requirement for companies to begin collecting the required data in 2023, with reporting forms due July 1, 2024. The total number of PFS now subject to TRI reporting obligations is 189.

At the end of July 2023, the EPA notified the OMB of its intent to send for OMB review a proposed rule that would eliminate the “de minimus exemption” to TRI reporting for companies that discharge less than 100 pounds of chemicals listed under the TRI annually. The proposal has now become a final rule as of October 20, 2023, as the EPA designated TRI-listed PFAS as “chemicals of special concern” (CSC). CSCs are automatically ineligible for the “de minimus exemption.” The rule will have an effective date of January 1, 2024, triggering reporting obligations for companies in the next annual TRI reporting date of July 1 2024. In addition, the final rule also makes the de minimis exemption unavailable for purposes of supplier notification requirements to downstream facilities for all chemicals deemed CSC, beyond just PFAS. This list includes chemicals that are persistent in the environment and bioaccumulate in the body, including PFAS, mercury, lead and dioxins.

It is likely that once published in the Federal Register, the new TRI reporting rule will trigger lawsuits challenging the rule. The focus of such lawsuits will likely be on the breadth of the EPA’s actions and whether it sufficiently provided evidence under federal law to justify the new TRI’s application to so many PFAS types at once. We will provide further articles on this topic once such lawsuits are filed.

Impact On Businesses

The TRI reporting expansion continues the EPA’s trend of added increasing numbers of PFAS to the TRI. 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 listed under the TRI must undertake every step necessary to comply with the reporting requirements set forth under the TRI. With 189 PFAS on the TRI list, companies must plan now for specific and targeted testing plans to ensure necessary TRI compliance. 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.

Companies must also consider that any PFAS information reported under the TRI in July 2024 and beyond will be discoverable information by plaintiffs’ attorneys looking for information to support environmental pollution lawsuits, including class action lawsuits brought by private citizens. Information about discharges will provide plaintiffs’ attorneys with a roadmap for determining “hot spot” litigation areas in the country. Companies must be aware of this likelihood and factor it into its internal risk assessment when considering action steps related to PFAS and TRI reporting.