EPA Adds Nine New PFAS to List of Chemicals Subject to Toxic Chemical Release Reporting Under the Emergency Planning and Community Right-to-Know Act and The Pollution Prevention Act
On January 6, 2025, the EPA published a final rule adding nine per- and polyfluoroalkyl substances (PFAS) to the Emergency Planning and Community Right-to-Know Act (EPCRA) section 313 list of reportable chemicals (more commonly known as the Toxics Release Inventory (TRI)).
The following PFAS are affected:
- Ammonium perfluorodecanoate (PFDA NH4) (CASRN 3108-42-7)
- Sodium perfluorodecanoate (PFDA-Na) (3830-45-3)
- Perfluoro-3-methoxypropanoic acid (377-73-1)
- 6:2 Fluorotelomer sulfonate acid (27619-97-2)
- 6:2 Fluorotelomer sulfonate anion (425670-75-3)
- 6:2 Fluorotelomer sulfonate potassium salt (59587-38-1)
- 6:2 Fluorotelomer sulfonate ammonium salt (59587-39-2)
- 6:2 Fluorotelomer sulfonate sodium salt (27619-94-9)
- Acetic acid, [(γ-ω-perfluoro-C8-10-alkyl)thio] derivs., Bu esters (3030471-22-5)
Under EPCRA section 313, facilities meeting the following conditions must report the annual quantity of such chemicals entering each environmental medium:
(1) included in Standard Industrial Classification codes
- 20–39, 10 (except 1011, 1081, and 1094),
- 12 (except 1241), 4911 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce),
- 4931 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce),
- 4939 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce)
- 4953 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. section 6921 et seq.),
- 5169,
- 5171, or
- 738;
(2) with 10 or more full-time employees; and
(3) manufacturing, processing, or otherwise using listed toxic chemicals.
Such facilities must also report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of the Pollution Prevention Act, 42 U.S.C. 13106. The rule adding the above PFAS applies to the 2024 reporting year, meaning data on these PFAS will be due to the EPA on July 1, 2025, and the maximum penalty for failure to timely report is $71,545 per violation per day. 40 CFR § 19.4.
Further, because PFAS are designed as “chemicals of special concern,” the de minimis exemption under EPCRA does not apply to PFAS. Notably, PFAS contained in articles may be exempt from reporting if a facility uses but did not manufacture the article. To qualify for the article exemption, the article must: (1) be formed to a specific shape or design during manufacture, (2) have end use functions dependent in whole or in part upon its shape or design, and (3) not release a toxic chemical under normal circumstances of processing or otherwise using the item at the facility.
This rule is the latest in the EPA’s efforts to regulate PFAS, which include measures such as the recent reporting rules under the Toxic Substances Control Act (TSCA).
Time is Running Out for PFAS Manufacturers and Reporters to Prepare for TSCA Retrospective Reporting Requirements
The deadlines for manufacturers and importers of PFAS to report information pursuant to the EPA’s TSCA PFAS reporting rule are fast approaching, with the first potential deadline (which covers most reporters) coming up on January 11, 2026. While slightly over a year may seem like a long time to gather data, the rule requires reporting of a large amount of data regarding all PFAS produced or imported since January 1, 2011. Entities subject to this rule should begin collecting data as soon as possible to ensure they are ready for the upcoming deadlines.
The rule requires companies to report, for each individual PFAS and for each individual year in which any PFAS was produced or imported since January 1, 2011, information including:
- The covered common or trade name, chemical identity, and molecular structure of each chemical substance or mixture;
- Categories or proposed categories of use for each substance or mixture;
- Total amount of each substance or mixture manufactured or processed, the amounts manufactured or processed for each category of use, and reasonable estimates of the respective proposed amounts;
- Descriptions of byproducts resulting from the manufacture, processing, use, or disposal of each substance or mixture;
- All existing information concerning the environmental and health effects of each substance or mixture;
- The number of individuals exposed, and reasonable estimates on the number of individuals who will be exposed, to each substance or mixture in their places of work and the duration of their exposure; and
- The manner or method of disposal of each substance or mixture, and any change in such manner or method.
All manufacturers of PFAS or PFAS-containing articles in any amount are covered by the rule, and TSCA’s definition of “manufacture” means to manufacture, produce, or import for commercial use, meaning importers are covered as well. Crucially, this also includes incidental manufacturing and byproducts. If a company knows it is manufacturing or has manufactured PFAS or PFAS-containing articles, or such information is reasonably ascertainable, it must report the above information.
Most manufacturers must report by January 11, 2026, though small entities reporting only on importing PFAS contained in articles will have until July 11, 2026 to report.
Given the breadth of the information the rule requires and the 16-year lookback period, it could take manufacturers a considerable amount of time to collect the data required to comply with the rule. Manufacturers should begin collecting such data as soon as possible, if they have not already started.
See our deep dive into the reporting rule for more information on the rule’s requirements, but note that the reporting deadlines have been updated since its publication.
Covered entities are also encouraged to read the final rule and review the EPA website regarding the rule.
MoFo’s team of environmental attorneys regularly advises clients on compliance with TSCA and related regulations and are ready to assist companies that produce or import PFAS to comply with the EPA’s reporting and recordkeeping requirements.
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