Duane Morris Energy and Environmental Blog

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:

1. Finalizing a toxicity value for the PFAS or class of PFAS.
2. Making a determination that a use of the PFAS or class of PFAS is a significant new use under TSCA Section 5(a)(2).
3. Adding the PFAS or class of PFAS to a list of substances covered by an existing significant new use rule.
4. 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.

Much is being discussed today about the prevalence of PFAS (per- and polyfluoroalkyl substances) in groundwater, the potential health effects of exposure to PFAS in groundwater, and the development of groundwater cleanup standards by USEPA and state environmental protection departments.  Less discussed (at least in the news media) is the subject of remediation.  Notwithstanding the inference of the “forever” label, can these chemicals be effectively remediated, in-situ, in groundwater?

Answering this question may be aided by a remediation pilot study being undertaken at a PFAS site in East and West Rockhill Townships, Bucks County, Pennsylvania – the Ridge Run PFAS Site.  Ridge Run became a state superfund site (under Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), 35 P.S. §§ 6020.102-6020.1303) in 2016 when a combined concentration of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate) exceeding the United States Environmental Protection Agency’s (EPA) then-applicable Health Advisory Level (HAL) (70 parts per trillion) was discovered in a public water supply well. Continue reading “In-situ PFAS Groundwater Remediation: A Good Test Case”