Duane Morris Energy and Environmental Blog

January 10, 2026May 14, 2026 by Duane Morris

Data Bytes – Data Center Marketplace Deals and Happenings

As part of our ongoing effort to focus on issues, incentives, acquisitions, joint ventures and the general comings and goings on in the data center arena, we thought it might be helpful to our readers to summarize some of the incredible deals that are occurring in the general data center marketplace.

While far from novel as we are aggregating stories of interest, given the speed and volume of deals, we hope that our quick overview of transactions might be helpful to those interested in learning more about the data center marketplace. If any of the stories pique your curiosity, feel free to email us and we will be happy to share information on the applicable article so you can dive deeper.

In no particular order, we saw the following:

Georgia – saw a $3.7 Billion-dollar data center proposed in Spalding County, Georgia;
Texas – saw a $1.5 Billion-dollar data center proposed in San Morcos, Texas;
Mississippi – saw Elon Musk’s XAI to invest over $20 Billion-dollars in a Southaven, Mississippi data center project;
Illinois – saw Hut 8 move to obtain zoning approvals on a $5 Billion-dollar data center in Logan, Illinois;
Europe – GTR obtained $2 Billion-dollars from KKR and Oak Hill Capital to expand their data center presence in Europe;
Capacity – estimates were issued showing data center capacity growing to over 200 Giga Watts by 2030, a massive increase;
Ohio – saw a $1 Billion-dollar, 500,000 SF data center being proposed in Scioto County, Ohio;
Pennsylvania – saw a $15 Billion-dollar, 16-building, 700-acre complex proposed in Carlisle, Pennsylvania;
Michigan – saw a $1 Billion-dollar data center proposed by Microsoft in Lowell Township, MI;
Google’s parent company, Alphabet, announced plans to acquire Intersect, a data center and energy infrastructure solutions company;
Capacity – data centers represented 40% of the PJM power capacity costs at the last PJM auction;
Washington, DC – Bisnow is hosting their National Datacenter – Construction Design, and Development conference in Washington, DC on February 18, 2026 – 7:30 EST; and
Iowa – Meta announced a purchase of a 328- acre site in Davenport, Iowa that is likely to be the home of a large data center.

The Quantitative/Qualitative Corner: This, friends, is like one week’s worth of deals – yes, a fast moving, large dollars being discussed and spent type of hyper frenzied marketplace. Our goal here is to continue to share deals in the space and where they are happening and we will share structure, power supply and financing strategies as the year progresses for those interested.

Duane Morris has an active team of lawyers who have been engaged in the review and dissemination of data center, digital infrastructure, real estate and incentives related alerts, blogs and advice on various topics. Please see our website for a few list of all available articles and blogs.

If you have any questions or thoughts, please contact Brad A. Molotsky, Robert Montejo, Darrick Mix, Paul Josephson or any of the Duane Morris lawyers you regularly engage with.

December 31, 2025May 14, 2026 by Seth v.d.H. Cooley

NJ Legislature Passes “Protecting Against Forever Chemicals Act”

Earlier this week, the NJ Senate and General Assembly passed the “Protecting Against Forever Chemicals Act” (the “PAFC Act”), following other state legislatures seeking to limit or eliminate the proliferation of forever chemicals in various products sold in the State of New Jersey. A copy of the FAFC Act can be found here. The PAFC Act has been delivered to Governor Murphy who is expected to sign it in the next few days.

Commonly referred to as PFAS or PFOS (standing for perfluoroalkyl and polyfluoroalkyl substances) are man-made compounds that have multiple flouring atoms bonded to a chain of carbon atoms. The substances are often referred to as “forever chemicals” as the bonds between the carbon and fluorine atoms are extremely strong and very difficult to break.

Due to impacts of PFAS and PFOS on waste streams, water, soil and the air, various studies have shown, and the New Jersey legislative history indicates that these forever chemicals bio accumulate in human blood and do not leave our bodies resulting in PFAS having been detected in 98% of humans who have been tested for this substance.

The PAFC Act focuses on the following types of products:
– carpet
– cookware
– cosmetics
– fabric treatments; and
– food packaging

and bans for sale, and the making of an offer to sell and distribute any these products that contain PFAS/PFOS, 2 years from the effective date of the statute – meaning by 2028. The Act also restricts manufacturers and distributors from adding PFAS to consumer products other than in di minimis quantities. Yes, you read that correctly – the PAFC Act BANS the above products from being sold in New Jersey if they contain PFAS/PFOS!

Products are defined to include not only the item manufactured, assembled, packaged or otherwise prepared for sale to consumers, but also includes personal, residential as well as commercial and industrial uses and restricts the addition of PFAS into these products.

Consumer Products do NOT include drugs, dietary supplements, medical devices, cosmetics covered by the Federal Food, Drug and Cosmetics Act, medical equipment, products regulated under the Federal Insecticide, Fungicide and Rodenticide Act, and certain products made with fluoropolymers.

Where the Division of Consumer Affairs (DCA) finds a person has violated the PAFC Act, the PAFC Act provides DCA with broad enforcement powers including bringing a civil action, levying a civil penalty, bringing an action for a penalty, and directing the manufacturer to cease offering the product for sale. The PAFC Act allows for civil penalties of between $1,000 per day up to $25,000 per day depending on the violation.

The Department of Environmental Protection (DEP) is also directed to create and implement a source reduction program within one (1) year from the effective date of the PAFC Act focusing on air, water, soil and bio-solids and to begin research and information sharing on the above PFAS levels within NJ’s air, water, soil, and bio-solids and to report and publish such findings yearly beginning in year 2 from the effective date of the PAFC Act. These mandates have been funded from the General Fund to the tune of $4.5M.

Forever Thoughts: As the Federal government continues its significant regulatory scale back, in particular at the EPA on many environmental issues, including PFAS, various states like New Jersey have taken up the mantle and continue to pass ever stronger regulations focusing on PFAS in the air, water, soil and in consumer products. While some might say this is a “blue state” or a “red state” thing, in the PFAS arena both red and blue states remain very active and continue to focus efforts to limit PFAS’ and PFOS’ impact on their citizens by creating restrictions on adding PFAS to products like New Jersey’s PAFC Act, to seeking to force various manufacturers of PFAS to clean up and test for various levels of PFAS and PFOS impacts. Some commentators have even labeled forever chemicals and their trapping and eradication and removal from human blood as the “asbestos like” issue of the 2020s and beyond.

Duane Morris has an active Energy and Environmental Team to help organizations and individuals plan, respond to, and execute on your risk mitigation planning and initiatives. For more information, please contact Alexander Judd, Sheila Rafferty-Wiggins, Jeff Hamera, Robert Montejo, or the attorney in the firm with whom you are regularly in contact.

December 24, 2025December 24, 2025 by Matthew L. Capone

EPA’s “Compliance First” Directive Creates Pathway for Preemption of Citizen Suits

On December 5, 2025, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) published an internal memorandum formally adopting a new “compliance first” enforcement approach for all OECA staff. The memorandum directs EPA personnel to prioritize compliance and the timely resolution of matters rather than engage in protracted investigations and disputes. Among the various directives contained in the memorandum is language specifically targeting “citizen suit litigation” or lawsuits initiated by private parties against potentially responsible parties for violations of environmental statutes. These private causes of action are established by federal statutes such as the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation, and Liability Act, as well as state statutes such as New Jersey’s Environmental Rights Act.

In order to initiate suit under these statutes, the private party must first send to the responsible party a Notice of Intent to Sue, which, in most instances, provides the responsible party 60 days to become compliant or otherwise be faced with an enforcement lawsuit. Citizen suits can be barred if the government is “diligently prosecuting” the alleged violation, usually meaning the EPA has started its own case, judicial or administrative, for those specific issues.

The EPA’s new memorandum stipulates that EPA decision making “must consider stakeholder impacts” and that EPA “must act swiftly to limit actions from third parties who, through citizen suit litigation, unfairly impact policy through abusive litigation tactics.” Due to the preclusive nature of agency enforcement actions, industry professionals are reading this language to suggest that potentially responsible parties who receive notices of intent to sue from third party citizens should approach the administration to negotiate a deal thus preventing any subsequent filing of a legal action based on the notice of intent.

This reading dovetails with the language of the “compliance first” memorandum which offers various strategies to achieve early resolution of violations. Although EPA has long held that “compliance first” is the approach of the agency, the memorandum offers specific guidance to agency employees on how to better foster compliance first initiatives. Primarily, the memorandum encourages staff to leverage compliance assistance tools such as proactive outreach and voluntary self-compliance measures like self-audits and self-reporting. This initiative focuses on the early identification of potential violations by responsible parties rather than a reactionary approach once EPA has itself identified a potential violation. The memorandum additionally directs employees to coordinate with state partners to ensure consistency in enforcement activities and to foster channels of communication with all interested parties to create clarity with respect to required compliance. Historically, regulated entities have raised concerns regarding interpretation and application of environmental statutes. This memorandum attempts to remedy such inconsistencies through a “best reading” policy wherein EPA will base all findings of violation upon a clear and unambiguous reading of the relevant statute and regulation. In emphasizing these policies, the memorandum rejects traditional enforcement postures that employ lengthy negotiations or broad remedies in favor of early engagement and voluntary correction to achieve faster and more effective environmental outcomes.

Notably, the author of the memorandum, Acting Assistant Administrator of OECA, Craig Pritzlaff, had worked on similar initiatives while employed at the Texas Commission on Environmental Quality (TCEQ) as Director of the Office of Compliance and Enforcement. In 2020 TCEQ initiated a temporary “Find It and Fix It” program to facilitate air quality compliance for companies operating in the Permian Basin. The Find It and Fix It program allowed the TCEQ to exercise enforcement discretion to potentially responsible parties who voluntarily reported and timely addressed non-compliance with air quality and air permitting requirements. The Find It and Fix It program was a more targeted version of Texas’ preexisting Audit Act which is a statutory framework providing responsible parties immunity from administrative and civil enforcement penalties under any state environmental, health, and safety requirement if the participant meets the requirements of the Audit Act which include, similar to EPA’s memorandum, voluntary self-auditing and disclosure of environmental violations. The Audit Act, which has been in effect since 1995, has been described by proponents as a beneficial tool leading to the disclosure and remediation of what might otherwise be undetected environment issues. Conversely, detractors argue the Audit Act provides a get-out-of-jail-free card to violators by way of the limited immunity provided by the Act.

While the full effect of EPA’s new agency direction has yet to be felt, entities currently subject to enforcement and those anticipating new enforcement cases may wish to reevaluate how they approach EPA. Entities already in compliance with or unsure of their compliance status with applicable environmental laws may benefit from approaching EPA to discuss whether their current practices remain in compliance with such laws under EPA’s new “best reading” policy and subsequently self-report if applicable. Similarly, entities with pending enforcement cases or those with upcoming compliance deadlines, may seek to initiate contact with EPA in order to discuss early case resolution or otherwise attempt to more expediently resolve pending violations. For further insights into the regulatory impacts of this policy shift or assistance responding to a Notice of Intent Sue contact the environmental attorneys at Duane Morris LLP.

October 29, 2025October 28, 2025 by Duane Morris

States Contend with the Proliferation of Data Centers Across the East Coast

By Anna Rendell-Baker

As data center projects proliferate in the United States to meet the growing demands of IT housing infrastructure, particularly in the face of rising AI usage, energy demands rise (and are expected to continue to grow), but so do the potential investments. Data centers are particularly energy-hungry, and the states are responding.

In Pennsylvania, Senate Bill No. 939 (the Artificial Intelligence and Data Center Act) was introduced on July 14, 2025. The Artificial Intelligence and Data Center Act establishes a state Office of Transformation and Opportunity and creates a regulatory sandbox program to allow for testing of data centers and high-impact data centers (a data center with a critical IT load of 50 MW or higher). If approved, tech companies would be able to temporarily test AI and data center technology with fewer approvals through fast-tracked permitting and the promise to keep municipal governments at bay on imposing strict local guidelines. Senate Bill No. 939 is currently with the Pennsylvania Senate Communications & Technology Committee.

In Delaware, Senate Bill 205 was introduced in late September to require any person or entity to begin the business of using 30 MW or greater of electricity to first obtain a Certificate to Operate (COP) from the Delaware Public Service Commission (DE PSC). On October 15, 2025, on the heels of Senate Bill 205 in Delaware, the DE PSC approved an order to open a docket to “address concerns regarding increased electric transmission and distribution costs to existing ratepayers and reliability concerns… namely for customers that will use a monthly maximum demand of 25 MW or greater” in the Delmarva Power & Light service territory and noted that these customers “need to be treated as a separate class within the current rate structure…” Docket No. 25-0826, Order No. 10826 (Oct. 15, 2025). Until a tariff is in place, interconnection of any large load customers will be paused.

In the same DE PSC meeting where Order No. 10826 was approved, the DE PSC noted the issue of data centers requiring a tremendous amount of power, while the rate of growth for new generation is relatively slow due to supply chain constraints, logistics and permitting. The DE PSC recognized that centers in the PJM footprint, even Virginia, could and likely would impact the state of Delaware. Senate Bill 205 awaits consideration by the Senate Environment, Energy & Transportation Committee.

On October 24, 2025, a New York State Bill (Senate Bill S8546) was introduced that would require the Public Service Commission (NY PSC) to establish a grid modernization surcharge on utilities for energy use of data centers. A data center would be considered any IT load exceeding 10 MW of demand. A high-intensity data center would mean a data center with an annual power-usage effectiveness greater than 1.3 or an annual electricity consumption greater than 50 gigawatt-hours. The surcharges would be put into a “grid modernization fund.” If Senate Bill S8546 were to go through, the NY PSC would then likely open a docket to establish specifics as to the surcharge and its application.

Meanwhile, in New Jersey, Governor Phil Murphy conditionally vetoed legislation, S-2493, on October 20, 2025, that would require the owners or operators of data centers to submit water and energy usage to the New Jersey Board of Public Utilities (BPU). Disagreement ensues on the potential delay of the bill, where reporting would have originally been required within six months of the bill’s signing. The governor’s conditional veto would extend the required reports to January 2027. Instead, the governor recommended that the New Jersey Legislature amend an existing law (P.L.2025, c.98), which directs the BPU to study the data centers’ effects on electricity costs for New Jersey residents and evaluate the potential for a tariff. On the reporting requirements of S-2493, the governor suggested deferring to the BPU to decide whether such reporting would be necessary in the future.

October 28, 2025October 28, 2025 by Duane Morris

Secretary of Energy Directs FERC to Develop Rules for Interconnecting Large Loads

By Ilia Levitine

On October 23, 2025, U.S. Energy Secretary Chris Wright issued an advance notice of proposed rulemaking (ANOPR) directing the Federal Energy Regulatory Commission (FERC) to develop rules for interconnecting large electric customers, such as data centers and hybrid facilities (i.e., combining a generator and a large load) that have peak demand of 20 megawatts (MW) or higher. Large load interconnections, especially those involving data centers and their colocation with generating resources, currently are a hot topic in several pending FERC proceedings involving proposals by individual utilities and regional transmission organizations (RTOs), as well as various generic inquiries. Due to their size and rapid growth, these facilities strain the interstate electric grid, resulting in reliability issues and requiring expensive transmission system upgrades. To respond to these challenges, the ANOPR initiates a rulemaking to develop a standardized set of procedures that would be applicable across the board, on a more or less uniform basis, to all “public utilities” and RTOs with FERC open access tariffs.

Read the full Alert on the Duane Morris website

July 11, 2025December 4, 2025 by Duane Morris

California Overhauls CEQA with Reforms Designed to Accelerate Housing and Infrastructure Development

By David Amerikaner, Louis C. Formisano and Matthew L. Capone

On June 30, 2025, California Governor Gavin Newsom signed into law a suite of bills significantly revising the California Environmental Quality Act (CEQA), marking what the governor described as “the most consequential housing reform in modern history.” These changes are designed to streamline environmental review processes for a range of projects, with the goal of expediting housing construction and the development of critical infrastructure statewide.

Among these changes are expanded exemptions from CEQA for infill housing development projects that meet local zoning, density and objective planning standards – provided the development projects are not, amongst other requirements, located on environmentally sensitive or hazardous sites. In instances where an infill housing development fails to meet the new CEQA exemption because of a single condition, only that single condition needs to be analyzed under CEQA. The specific focus on infill housing development projects in this legislation is aimed to remedy a shortage of urban housing in California and to steer construction projects away from undeveloped land. To that end, the Governor’s Office of Land Use and Climate Innovation is tasked with developing, by July 1, 2027, a map of urban infill sites eligible for the CEQA exemption.

The legislative package also creates new CEQA exemptions for health centers and rural clinics, childcare facilities, food banks, farmworker housing, wildfire risk mitigation projects and parks while also streamlining environmental reviews for certain housing projects that are ineligible for an existing CEQA exemption. In addition, specified projects related to California’s high-speed rail project and certain advanced manufacturing projects are now exempt from CEQA review.

For developers, municipalities, and project managers looking to better understand the full scope of these CEQA reforms and potential impacts on currently existing or prospective projects, contact the environmental and land use attorneys at Duane Morris, LLP.

May 13, 2025 by Lindsay Ann Brown

EPA Again Delays Start to PFAS Reporting Rule

On May 12, 2025, the U.S. Environmental Protection Agency (EPA) announced that it is amending the data submission period for the Toxic Substances Control Act’s (TSCA) per- and polyfluoroalkyl substances (PFAS) reporting rule to begin on April 13, 2026, and end on October 13, 2026. Small manufacturers reporting exclusively as article importers will have until April 13, 2027, to complete their reporting.

Please see the full Alert on the Duane Morris website.

May 1, 2025December 4, 2025 by Lindsay Ann Brown

Superfund Reform Receives Bipartisan Support but No Clear Answer on How or When it Will Be Achieved

For the past several months, the Senate Environment and Public Works (EPW) Committee has been reviewing recommendations on how to overhaul the Superfund process as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to expedite the early stages of the Superfund process.

During an April 9, 2025, Committee hearing, senators from both parties expressed their support for the effort, although each party differed in their approach to streamlining the process. Republican lawmakers, led by Chairman Shelley Moore Capito (R-WV), focused on the pre-clean up procedural requirements imposed by CERCLA. Capito criticized that CERCLA “prioritizes process over results” and that the EPA’s “entangled web of bureaucracy, work groups, task forces and committees . . . too often slow progress.” In contrast, ranking member Sheldon Whitehouse (D-RI) said that “speed must not come at the cost of efficacy” and argued that the Trump Administration’s cuts to the EPA’s funding will lead to further delays in the process.

While still being developed and considered, several changes to CERCLA have been proposed. One proposal called for site cleanups to start before a site is even declared a Superfund site or added to the National Priorities List. This approach would allow the EPA to start remediating a site while simultaneously working to identify all potentially responsible parties. Another proposal would allow EPA to proceed with a “presumptive remedy” in cases where the selected remedy is straightforward and widely-accepted, such as for sites polluted by heavy metals.

Other concerns included whether per- and polyfluoroalkyl substances (PFAS) pollution will be part of any reform efforts, particularly in the wake of the Biden Administration designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances. Some commentators have argued that inclusion of PFAS as a hazardous substance threaten bipartisan support for Superfund reform, as others have argued that it could throw the entire Superfund process into disarray. One proposal to alleviate these concerns is to change CERCLA’s liability provisions to exempt “passive receivers” of PFAS, which some have criticized as potentially leading to unintended consequences concerning other types of hazardous substances.

While the EPW Committee seems to be open to clearing some of the administrative red tape and speeding up the cleanup process, there does not seem to be any consensus for how to achieve that goal, and it will be interesting to see where the Committee ultimately lands. We will continue monitoring any Committee work on this topic and will update this blog with any new and interesting developments.

March 11, 2025March 11, 2025 by Duane Morris

New York Amends Newly Instituted Climate Change Superfund Act

By Alicyn Craig, Louis C. Formisano and Matthew L. Capone

On Friday, February 28, 2025, New York Governor Kathy Hochul signed into law Senate Bill 824 amending New York’s Climate Change Superfund Act (Act) just two months after the Act had itself been signed into law in December 2024. As previously reported in a Duane Morris Alert, the Act, which seeks to hold major fossil fuel companies financially accountable for alleged contributions to climate change, has been met with a lawsuit filed by a coalition of state attorneys general and industry groups asserting various causes of action under both federal and New York state law. The amendment to the Act has prompted a new lawsuit filed by the U.S. Chamber of Commerce, the Business Council of New York State, the American Petroleum Institute, and the National Mining Association (U.S. Chamber Coalition) in the Southern District of New York which asserts, among other things, that the U.S. Constitution precludes the Act and that the Act is preempted by the Clean Air Act.

The Amendment

Among the pertinent changes to the Act are a litany of additions which seek both to facilitate the New York Department of Environmental Conservation’s (NYSDEC) administration of its duties under the Act and to seemingly assuage some of the concerns raised by detractors to the Act.

Among the primary additions to the Act is an increase to the lookback period under which NYSDEC may consider the emissions of a potentially responsible party under the Act. Previously the Act had authorized an eighteen-year lookback window (extending from 2000 to 2018). The Act will now consider emissions from 2000 to 2024 – adding six years of potential liability to emitters. The amendment also clarifies that “covered greenhouse gas emissions” include “those emissions attributable to all fossil fuel extraction and refining worldwide by such entity and are not limited to such emissions within the state.”

To facilitate NYSDEC’s investigation into potentially responsible parties, the Act also requires such entities to provide information to NYSDEC related to their “past practices, production, extraction, refining, emissions, or other historical information” as may be needed by NYSDEC to “determine the amount of greenhouse gas emissions attributable to an entity”. NYSDEC will make publicly available data and information received from potentially responsible parties.

Additionally, Changes to NYSDEC’s administration of the Act include an increase in the amount of time afforded to NYSDEC to promulgate regulations necessary to perform under the Act and to publish its resilience plan – a statewide climate change adaptation plan guiding the disbursement of funds anticipated to be collected from allegedly responsible parties.

Lastly, the amended Act now provides for a procedure by which a potentially responsible party may file a request for reconsideration of its cost recovery demand with the NYSDEC.

The U.S. Chamber Coalition’s Lawsuit

The lawsuit filed on February 28th by the U.S. Chamber Coalition mirrors the claims filed by those state attorneys general and industry groups appearing in the February 6, 2025, litigation. Namely, the new suit argues that New York exceeded the bounds of its authority through the Act by exposing responsible parties to significant and unduly burdensome penalties for greenhouse gas emissions – some of which may have occurred beyond state lines. Moreover, the U.S. Chamber Coalition asserts that the Act is preempted by the federal Clean Air Act.

Additionally, the U.S. Chamber Coalition argues that there is no meaningful way to trace greenhouse gas emissions back to a particular generator, nor is there a discernible way of measuring damages for those specific emissions.

Duane Morris, LLP will continue to follow the developments on this lawsuit and will issue subsequent Alerts and blog posts on the New York Climate Change Superfund Act.

January 30, 2025 by Lindsay Ann Brown

EPA Proposed Rule Underscores Importance of Suppliers Closely Tracking “Triggering Activities” That Add PFAS to the TRI

Reposting an Alert published last week:

The proposed rule “clarifies” that the PFAS chemical will be automatically added to the TRI list of chemicals as of January 1 regardless of whether the EPA has published a rule updating the TRI list.

On January 17, 2025, the U.S. Environmental Protection Agency (EPA) proposed a rule clarifying that the PFAS automatically added to the Toxics Release Inventory (TRI) list by the National Defense Authorization Act for Fiscal Year 2020 (NDAA) are effectively TRI-listed chemicals (i.e., “toxic chemicals”) as of January 1 of the applicable year. This means that all TRI requirements, including the supplier notification requirements, apply to these chemicals at that time, regardless of whether the EPA has issued a final rule adding the chemical(s) to the TRI list. This clarification, if approved, emphasizes the need for suppliers subject to the TRI supplier notification requirements to pay close (or even closer) attention to the triggers identified in the NDAA for adding PFAS to the TRI.

The NDAA automatically adds certain PFAS to the TRI list beginning January 1 of the year following the occurrence of certain EPA triggering activities listed in the NDAA. Since the enactment of the NDAA, each year the EPA has issued a final rule officially “adding” the PFAS to the TRI list. That final rule, however, often comes days, weeks or even months after January 1, creating some confusion in the regulated community as to when the chemicals are officially listed and subject to the TRI requirements. The proposed rule “clarifies” that the PFAS chemical will be automatically added to the TRI list of chemicals as of January 1 regardless of whether the EPA has published a rule updating the TRI list.

In terms of TRI chemical reporting, the proposed clarification changes little, as TRI reporting for any newly added chemical would not be due to the EPA until July 1 of the following year. Hence facilities will have time to assess the reporting impact of any PFAS that may have been added to the TRI, even if the EPA triggering activity occurred late in the year.

But for suppliers required to provide supplier notifications to their customers informing them of the presence of any toxic chemicals or mixtures in their product, the proposed rule highlights the importance of closely tracking any triggering activities by the EPA. If an EPA triggering activity occurs on December 31, the PFAS chemical at issue will be added to the TRI list the very next day,and suppliers will be required to ensure all shipments of products containing the newly added PFAS have an updated notification providing the required information about the chemical. When triggering events occur late in the year, suppliers may have little to no advance notice of the required change in their supplier notifications—unless they have been closely monitoring the EPA’s triggering activities.

Thus, suppliers are urged to diligently monitor the EPA’s trigging activities, now more than ever, so they are not caught off guard by late-year additions to the TRI list. The EPA triggering activities include:

Finalizing a toxicity value for the PFAS or class of PFAS.
Making a determination that a use of the PFAS or class of PFAS is a significant new use under TSCA Section 5(a)(2).
Adding the PFAS or class of PFAS to a list of substances covered by an existing significant new use rule.
Adding the PFAS or class of PFAS to the list of active chemical substances on the TSCA Inventory. See NDAA 2020 Section 7321(c)(1)(A).

Customers receiving supplier notifications should always pay careful attention to revisions in those notifications, which are either included in or attached to the product safety data sheets for those products. As we advised in a prior Alert, PFAS added to the TRI have been designated as chemicals of special concern. This means they have lower reporting thresholds and the de minimis exemption does not apply when determining reporting thresholds or notification requirements. This will result in more PFAS being identified in supplier notifications potentially triggering new or additional reporting requirements for the receiving facilities when their annual TRI reporting is due the following July.

Comments on the proposed rule must be received on or before February 18, 2025.

For More Information

If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. Mills, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.