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22 December 20225 minute read

EPA's Toxics Release Inventory Proposed Rule seeks to increase PFAS reporting

Under federal law, companies that manufacture, process, or otherwise use hundreds of compounds known as per- and polyfluoroalkyl substances (PFAS) already must report that activity under the Toxics Release Inventory Program. On December 5, 2022, the U.S. Environmental Protection Agency proposed a new rule that would substantially expand those reporting requirements for listed PFAS chemicals.

As a result of the PFAS Act in 2019, there are nearly 180 PFAS compounds subject to TRI reporting, with a reporting threshold of 100 pounds. Under the new rule, EPA would reclassify all listed PFAS to the Chemicals of Special Concern list. A chemical on this list has heightened reporting requirements: it is no longer eligible for the de minimis exemption that allows facilities to disregard small concentrations of TRI chemicals when making threshold reporting determinations, it is no longer eligible for simplified reporting under TRI Form A, and it is no longer allowed to be reported based estimates or ranges and instead must be reported with precise quantities.

The new rule proposes to also erase the de minimis exemption for supplier notifications to purchasers for all Chemicals of Special Concern. Currently, suppliers are exempted from providing notifications for mixtures or trade name products containing a listed chemical if the chemical was present in only small concentrations. If passed, suppliers would have to provide notification to the purchaser regardless of the concentration and regardless of the quantity for any chemical on the Chemicals of Special Concern list.

EPA’s proposed rule, if adopted, will significantly increase PFAS reporting requirements for companies. EPA estimates that an additional 605 to 1,997 reports will be filed annually and will impact 467 to 1,313 small businesses. Public comments must be received by February 3, 2023.

  • Toxics Release Inventory Program (TRI)

    Under the 1986 Emergency Planning and Community Right-to-Know Act (EPCRA), EPA uses the TRI public database to track certain chemicals, support emergency planning, and provide the public with information on chemicals in their communities. EPCRA requires industrial and federal facilities engaged in manufacturing, metal mining, electric power generation, chemical manufacturing, and hazardous waste treatment to annually report environmental releases and waste management quantities of TRI chemicals above reporting thresholds. EPCRA also requires companies to disclose how much of each chemical is released into the environment and/or managed through recycling, energy recovery, and treatment, along with pollution prevention and recycling data.

    The PFAS Act of 2019 added nearly 160 PFAS compounds to the TRI list as of January 1, 2020, with others being added later based on set criteria. Currently, nearly 180 PFAS compounds are listed, among them PFOA and PFOS.

    The reporting limit was set at 100 pounds and the de minimis exemption was available, which “allows facilities to disregard concentrations of TRI listed chemicals below 1% (0.1% for carcinogens) in mixtures or other trade name products they import, process, or otherwise use in making threshold calculation and release and other waste management determinations.”

    In the first year of PFAS reporting, EPA received 89 reports from 38 facilities covering 43 PFAS.

  • Proposal to add PFAS to list of Chemicals of Special Concern

    Under the new rule, EPA proposes to reclassify PFAS as Chemicals of Special Concern, designated by EPA as persistent, bioaccumulative, and toxic (known as, “PBT” chemicals) such that lower reporting thresholds are justified.

    Off the bat, this reclassification would eliminate the de minimis exemption for PFAS chemicals. Significantly, the reclassification would also eliminate the possibility to report using the simplified Form A, or to use range reporting (i.e., 1-10 pounds, 11-499 pounds, and 500-990 pounds) rather than reporting with precision and based on data.

  • Proposal to remove de minimis exemption from supplier notification requirement for Chemicals of Special Concern

    Further, the concentration-based de minimis exemption described above implicates the Supplier Notification Requirement for the Chemicals of Special Concern. Namely, the exemption allows suppliers not to notify for mixtures or trade name products containing listed Chemicals of Special Concern, if the chemicals are present at concentrations below 1 percent of the mixture (0.1 percent for carcinogens).

    Importantly, this aspect of the de minimis exemption does not concern the quantity of a listed chemical, but rather its concentration. Under the new rule, for PFAS in particular, this would result in a significant increase in reporting requirements, as PFAS are often used in products at very low concentrations, below the established de minimis levels.


While EPA aims to develop a more comprehensive picture of the PFAS environmental release and waste management in the US, the proposed rule would dramatically increase reporting obligations for many companies. Comments to the proposed rule are due by February 3, 2023.

Please reach out to any of the authors for further information.