On December 5, 2022, the Environmental Protection Agency (EPA) proposed 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). 

In announcing the rule, the EPA stated the addition of these PFAS to the list of chemicals of special concern would cause them to be subject to the same reporting requirements as other chemicals of special concern. It would eliminate the use of the de minimis exemption for PFAS. This exemption allows covered facilities to disregard for reporting purposes certain minimal concentrations of reportable persistent bioaccumulative toxic (PBT) chemicals in mixtures or trade-name products.

The EPA says the rule will result in a more complete picture of the releases and waste management quantities for these PFAS. In addition, the EPA is proposing to remove 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 change would make it easier for purchasers of mixtures and trade-name products containing such chemicals to be informed of their presence.

PFAS are used at low concentrations in many products. Following the elimination of the de minimis exemption, it will be possible to obtain a more complete picture of the releases and other waste management quantities for these chemicals.

With PFAS-related litigation continuing to swell, and with this rule facilitating plaintiffs’ efforts to identify potential defendants, we should expect to see potential litigants accessing the information being collected by EPA. Those whose activities involve PFAS should be planning for increased attention and girding for litigation.