Another Change to PFAS Regulation: EPA Lowers the Toxic Release Inventory Reporting Thresholds

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Authors: Bonnie Allyn Barnett , Aaron L. Szabo , Amy L. Waite

At a Glance

This rule adds more than 2,000 facilities reporting to EPA, and applies to the reporting year starting January 1, 2024 (reports due July 1, 2025).
A facility must report to EPA if it manufactures, processes or uses more than 100 pounds of any of the listed Per- and Polyfluoroalkyl Substances (PFAS) in a year.
This rule does not change which PFAS must be reported, just the thresholds that trigger reporting.
The Toxic Release Inventory (TRI) program currently covers 189 PFAS, and changes under this rule would apply to any future PFAS added to the TRI program.
This rule defines PFAS as a “Chemical of Special Concern,” which includes chemicals such as mercury and lead.
This rule requires companies to report even trace (de minimis) amounts of PFAS, including amounts left over as impurities.
Companies will also be required to notify downstream customers, even if a mixture only includes a small concentration of a “chemical of special concern.” Therefore, downstream customers are more likely to trigger the TRI reporting thresholds.

Background

On October 31, 2023, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register titled, “Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting” (TRI PFAS Reporting rule).

The TRI PFAS Reporting Rule was issued in response to Section 7321(b) and 7321(c) of the National Defense Authorization Act for Fiscal Year 2020 (PL 116-92). Section 7321 of NDAA added requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA).

EPA states that the collection of information will be used in future EPA rulemakings under other environmental statutes such as the Clean Water Act; Comprehensive Environmental Response, Compensation, and Liability Law (CERCLA); and Toxic Substances Control Act (TSCA).

What Are the Changes to the PFAS Reporting Requirements?

EPA is adding certain PFAS subject to TRI reporting to the list of “chemicals of special concern.” The reporting threshold for manufacture, processing or use of a specific PFAS remains at 100 pounds.

Therefore, companies can no longer use the de minimis threshold for PFAS reporting and must report even small concentrations of PFAS to EPA. This includes, but is not limited to, small impurities within products that can change from product to product.

Companies who must report under the TRI are also no longer allowed to use streamlined reporting forms and are required to use the more detailed reporting forms that will result in additional analysis and cost.

Additionally, EPA removed the de minimis concentration (1% of the mixture or 0.1% of the carcinogen) for when companies that report under TRI must notify downstream customers of “chemicals of special concern” in the products. The result of this provision is that downstream customers will receive more information on chemicals of special concern, and with their lower reporting thresholds this could trigger TRI reporting requirements for those customers.

Overall, this will result in:

more information being reported by companies that already must report under TRI,
more information on downstream customers that have small concentrations of “chemicals of special concern” within their products, and
downstream customers that have never needed to report, now being required to report.

Who Is Covered by This Rule?

EPA estimates that up to an additional 2,000 facilities (about a 10% increase) will be required to report under the TRI program due to this rule, and it will add an additional $6 million a year in costs.

More than 20,000 facilities have submitted data to EPA under the TRI reporting program. A facility is required to report if:

it meets the chemical activity threshold; and
is either:
- a covered industry source and exceeds the employee threshold; or
- is specifically required to report based on a determination by EPA under Section 313(b)(2) of EPCRA.

There are many sectors of the economy that are covered under the TRI reporting program. Whether a facility is required to report depends on which Standard Industrial Classification (SIC) and North American Industry Classification System (NAICS) code the facility falls under. EPA has provided the full list of SIC and NAICS codes, as well as any potential exemptions, in 40 C.F.R. 372.23. This rule did not add, remove or modify any SIC or NAICS code.

In addition, federal facilities are also covered under the TRI reporting program.

What PFAS Are Covered by TRI?

This rule does not change which PFAS must be reported, just the thresholds that trigger reporting. To date, EPA has added 189 PFAS to the TRI list.

EPA periodically adds additional specific PFAS to be reported under TRI and codifies them in 40 C.F.R. § 372.65(d) and (e). EPA is currently working on a regulation that would potentially add more PFAS to the TRI program.