EPA’s first major action under its February 2019 comprehensive Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (previously discussed in detail here) is out. On September 25, EPA sent a request for public input on whether EPA should add “certain PFAS chemicals” to the Toxics Release Inventory (TRI) to the Office of Management and Budget (OMB). EPA issues advance notices of proposed rulemaking to get a sense of public reaction before it initiates an important regulatory change, typically before it has conducted significant research or expended agency resources.

Scant details about the scope of EPA’s proposal are currently available, including the number of PFAS that EPA will propose to list. In particular, it’s not clear whether EPA will limit the listing to the most high-profile PFAS – PFOA and PFOS – or seek to cast a broader net. How broadly the Agency proposes to define PFAS in this action is key to its impact, since it will affect the number and type of businesses that would be subject to any reporting once a TRI listing is finalized. For now, EPA indicates that the proposed action may affect at least the following industries: petroleum refining; fabric, carpet, and furnishing manufacturing; manufacturing of chemicals; and cleaning services.

EPA created the TRI Program in 1986 under the Emergency Planning and Community Right-to-Know Act (EPCRA) to provide the public with information regarding the use and releases of chemicals that the Agency has concluded may pose a threat to human health and the environment. Facilities that manufacture and use listed chemicals above established threshold quantities must annually report to EPA the amounts released or otherwise disposed, and the law prescribes penalties for late or non-submissions. No PFAS are currently listed on TRI, which contains around 600 chemicals. To list a substance, EPA must first find that it causes significant adverse acute or chronic health effects or significant adverse environmental effects. As a result, third party plaintiffs historically have used companies’ TRI reports to support toxic tort claims.

Following its publication and receipt of public comments, EPA is expected to initiate a formal rulemaking process where it will solicit additional comments. Submitting comments on the scope of this proposal once it is published in the Federal Register, as well as submitting comments during any subsequent proposals, will be important to help shape the Agency’s ultimate action.