Bradley R. Sugarman & Michael Chambers: New EPA regulations require robust PFAS reporting

Under the Biden Administration, the United States Environmental Protection Agency (EPA) has finalized numerous significant administrative rules and has signaled significant policy shifts important to virtually every sector of the economy.

According to the “Unified Agenda of Regulatory and Deregulatory Actions” maintained by the Office of Management and Budget, EPA had 116 regulatory actions in various stages of development as of the last quarter of 2023. Those regulatory actions fall within one of seven priority areas established by the EPA, including: tackling the climate crisis; taking “decisive action to advance Environmental Justice and Civil Rights;” enforcing environmental laws and ensuring compliance; ensuring clean and healthy air for all communities; ensuring clean and healthy water for all communities; safeguarding and revitalizing communities; and ensuring safety of chemicals for people and the environment.

This article briefly addresses two final rules EPA has recently published that fall under the latter priority area, ensuring chemical safety, and are designed to mine information regarding how and where per-and polyfluoroalkyl substances (PFAS) are used in the stream of commerce. On the surface, these two actions may seem unremarkable, but placed into the context of EPA’s “PFAS Strategic Roadmap,” they are precursors to expanded governmental regulation and litigation exposure for a growing list of companies that may have used PFAS in their manufacturing process.

Both rules have their origin in the National Defense Authorization Act for Fiscal Year 2020 (the NDAA) signed into law by then-President Trump on Dec. 19, 2019. The NDAA added 172 PFAS to the list of chemicals on USEPA’s Toxics Release Inventory (TRI), a program established under the Emergency Planning and Community Right-to-Know Act (EPCRA).

The NDAA then prescribed a framework that allows for additional PFAS to be automatically added to the list on an annual basis. EPCRA requires facilities that manufacture, process, or otherwise use TRI-listed chemicals to report “releases” of those chemicals that exceed certain thresholds.

For those unfamiliar with TRI reporting, a “release” is broadly defined to include almost any method that results in the chemical entering the environment. (It even includes sending waste containing the TRI chemical off-site for disposal or recycling.); EPA uses “release” interchangeably with “emission” and “discharge.”

The NDAA set the threshold for reporting PFAS releases at any amount over 100 pounds. EPCRA also requires facilities that manufacture, import or process a TRI-listed chemical, or who sell or otherwise distribute a mixture or other trade-name product containing the TRI-listed chemical, to notify their customers (called “supplier notifications”). The NDAA left in place de minimis exemptions to these supplier notifications (i.e. thresholds below which no notification is required).

Finally, the NDAA amended Section 8(a)(7) of the Toxic Substances Control Act (TSCA) and required EPA to promulgate a rule “requiring each person who has manufactured a chemical substance that is a (PFAS) in any year since Jan. 1, 2011,” to report certain information required by TSCA § 8(a)(2)(A)-(G).

With that brief background, the first regulatory action addressed in this article was a final rule EPA published on Oct. 31, 2023, that modified TRI reporting requirements for PFAS announced in the NDAA (the “TRI Rule”). (See 88 Fed. Reg. 74,360 (Oct. 31, 2023).) The rule requires that all PFAS on the TRI should be classified as “chemicals of special concern” because those chemicals are persistent, bioaccumulative, and toxic.

This classification eliminates the availability of the de minimis exemption discussed above and requires the use of a specific reporting form (called a Form A) for the listed PFAS substances instead of the more general reporting form (known as the Form R). By requiring use of the Form A for reporting, EPA hopes to “increase the number of TRI reports on listed PFAS and the amount of information provided on such reports, resulting in more information on the waste management of these chemicals (becoming) available to the (EPA) and the public.” (Id. at 74361.)

Similarly, by eliminating the exemption to Supplier Notification, EPA is seeking to ensure that “purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they use.” The rule became effective November 30, 2023, and applies to the 2024 reporting year with TRI reports due on July 1, 2025.

The second regulatory action is EPA’s final rule establishing the reporting and recordkeeping requirements for PFAS under TSCA as required by the NDAA (the “TSCA Rule”). (See 88 Fed. Reg. 70516 (Oct. 11, 2023).) The TSCA Rule requires regulated entities to submit retrospective reports providing information on the manufacturing or importation of PFAS for each year in which PFAS or PFAS-containing articles were manufactured or imported for commercial purposes between Jan. 1, 2011, and Dec. 31, 2022.

The scope of EPA’s reporting rule is quite broad. For instance, the rule defines “manufacturing for commercial purposes” as “to import, produce or manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer.” (Id. at 70549.) The definition includes substances that are produced coincidentally during manufacturing, processing, use or disposal of another substance or mixture.

Moreover, the TSCA Rule covers a vastly larger number of PFAS than the TRI Rule. EPA has published a list of PFAS falling under the TSCA Rule that includes over 1,200 individual PFAS.

Finally, EPA’s rule does not contain exemptions for de minimis usage, small businesses, or reporting on imported articles.

While the rule does not require reporting for use or processing of PFAS purchased domestically, it nevertheless requires reporting if the use or processing of the domestically purchased PFAS results in the manufacture of another PFAS. Moreover, the manufacture of PFAS as an impurity, a byproduct, for research and development, or as a non-isolated intermediate requires reporting under the rule. Similar to the stated purpose of the TRI Rule, the purpose of the TSCA Rule is to “improve the (EPA’s) understanding of PFAS in commerce and to support actions to address PFAS exposure and contamination.”

For most companies, the submission period commences on Nov. 13, 2024 (one year after the TSCA Rule’s effective date) and lasts through May 8, 2025. Small importers of articles have until Nov. 10, 2025, to report.

These two regulatory actions make it abundantly clear that EPA is just getting started when it comes to regulating PFAS. With the information generated, EPA will have a greater understanding of the breadth of the use and potential releases of PFAS. While this may be a very good thing for purposes of shaping regulatory policy, it is also inevitable that much of the information obtained through implementation of the TSCA and TRI Rules will find its way to the public and spawn even more PFAS-related litigation.•

Bradley R. Sugarman is chair of the Environmental Law Group at Bose McKinney & Evans LLP. Michael Chambers is a partner in the Bose McKinney & Evans Environmental Group. Opinions expressed are those of the authors.