On October 18, U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention submitted a final rule for publication in the Federal Register, amending 40 CFR Part 372, involving reporting requirements for per- and polyfluroalkyl substances (PFAS) and supplier notifications for chemicals of special concern. The rule becomes effective 30 days after publication and applies to the reporting year 2024, with reports due July 1, 2025.
According to the summary of the rule change, “the EPA is adding per- and polyfluoroalkyl substances (PFAS) subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA), pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). These PFAS already have a lower reporting activity threshold of 100 pounds. The addition of these PFAS to the list of chemicals of special concern means such PFAS are subject to the same reporting requirements as other chemicals of special concern (i.e., it eliminates the use of the de minimis exemption and the option to use Form A and would limit the use of range reporting for PFAS). Removing the availability of these burden-reduction reporting options will result in a more complete picture of the releases and waste management quantities for these PFAS. EPA is removing the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern. This will help ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase to better inform any TRI reporting obligations.” This is a prepublication version of the rule, and although EPA has taken steps to ensure its accuracy, it is not the official version.
The elimination of the de minimis exemption and the more robust reporting requirements could be transformative in both the additional burden placed upon manufacturers of these products, but also in terms of product management for facilities or end users who process or utilize them. According to EPA, the costs of this action will be approximately $3,318,492 and $10,733,149 in the first year of reporting and approximately $1,580,214 and $5,111,044 in the subsequent years. The rule utilizes North American Industry Classification System (NAICS) coding to further define affected industries. Based on the comments included in the prepublication rule, the majority suggest that EPA underestimated the burden of compliance, and many of the commenters suggest that EPA had not demonstrated that PFAS met the criteria to classify as chemicals of special concern.
EPA is adding all PFAS included on the Toxics Release Inventory (TRI) list, pursuant to Sections 7321(b) and 7321(c) of the NDAA (see 40 CFR 372.65(d) and (e)), to the list of chemicals of special concern at 40 CFR 372.28.