On January 6, 2023, the EPA issued an announcement that it would add nine types of PFAS as subject to the Toxics Release Inventory (TRI) reporting requirements. The total PFAS subject to the TRI now exceeds 180 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. 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 TRI reporting requirements.

Newest TRI Reporting Notice

The EPA added nine PFAS types to the TRI reporting requirements, which triggers a requirement for companies to begin collecting the required data in 2023, with reporting forms due July 1, 2024. The nine PFAS added to the TRI by the EPA are:

• Alcohols, C8-16, γ-ω-perfluoro, reaction products with 1,6-diisocyanatohexane, glycidol and stearyl alc. (2728655-42-1)
• Acetamide, N-[3-(dimethylamino)propyl]-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs. (2738952-61-7)
• Acetic acid, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., 2-hydroxypropyl esters (2744262-09-5)
• Acetamide, N-(2-aminoethyl)-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., polymers with N1,N1-dimethyl-1,3-propanediamine, epichlorohydrin and ethylenediamine, oxidized (2742694-36-4).
• PFBA (375-22-4)
• Perfluorobutanoate (45048-62-2)
• Ammonium perfluorobutanoate (10495-86-0)
• Potassium perfluorobutanoate (2966-54-3)
• Sodium perfluorobutanoate (2218-54-4)

As part of EPA’s PFAS Strategic Roadmap, the Agency also proposed a rule in December 2022 to enhance PFAS reporting to TRI by eliminating an exemption that allows facilities to avoid reporting information on PFAS when those chemicals are used in small, or de minimis, concentrations.

Impact On Businesses

While the TRI reporting expansion does not add a significant number of PFAS to the TRI, it nevertheless 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 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.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.