We have previously reported on EPA’s PFAS TRI efforts, which during the current Biden administration have seen an significant expansion in the number of PFAS regulated. Now, the EPA is proposing to go even further – in fact, the furthest thus far in broadening its regulatory reach over PFAS. On October 2, 2024, EPA proposed adding 16 individual PFAS and 15 categories of PFAS to the Toxic Release Inventory (TRI). In total, the proposal seeks to add over 100 PFAS to the TRI list. The PFAS TRI expansion will have enormous impacts on numerous companies from a compliance standpoint, as well as increase risk for future PFAS litigation. However, it is also critical to note the EPA’s effort to regulate PFAS in categories – a critical tactic EPA is choosing to take with respect to PFAS that attempts to find a middle ground between “test each PFAS individually” and “regulate them all as a single class” approaches. Even this middle ground approach will have significant impacts on companies.

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 193 PFAS on the TRI list currently and EPA proposing to add over 100 more, 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 of every year 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.

Finally, the “regulation by category” approach to PFAS is something we have predicted that EPA would attempt to do for some time now. Realistically, there is no way to test every PFAS in existence for toxicity or biopersistence issues – there are simply far too many of them to do so. EPA has also shown a reluctance, at least to date, to regulate all PFAS chemicals as a single class and apply regulations to all equally. For the past three years, EPA officials have spoken about attempts to create specific categories of PFAS, which essentially groups various PFAS together due to similarities in how they act, their toxicity potential, etc. As litigation related to PFAS accelerates and expands, it will be interesting to see down the road how these regulatory categories are challenged and whether in personal injury lawsuits, for example, such an approach is held to be sound science from a judicial perspective.

In the meantime, companies are left to figure out (and quickly!) how to properly conduct due diligence to determine compliance needs under TRI and other EPA PFAS regulations. With increasing difficulties in obtaining information related to PFAS from supply chain, the hurdles companies need to overcome to achieve compliance goals get tougher by the month.