The EPA proposed rule would bring over 100 additional PFAS within the TRI's scope.
The U.S. Environmental Protection Agency (EPA) is proposing to add 16 individually listed per- and polyfluoroalkyl substances (PFAS) and 15 PFAS categories―representing more than 100 individual PFAS―to the Toxics Release Inventory (TRI) list of toxic chemicals subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA). In addition, EPA is proposing to reclassify over 35 previously listed PFAS into these chemical categories, which will impact the calculation of reporting thresholds for the reclassified chemicals.
EPCRA Section 313 requires certain facilities that manufacture, process or otherwise use chemicals listed on the TRI in amounts above reporting thresholds to report the environmental releases and other waste management quantities of such chemicals annually. The National Defense Authorization Act for fiscal year 2020 added over 170 PFAS to the list of chemicals required to be reported by the TRI and required additional PFAS to be added on an annual basis. Currently, there are 196 PFAS required to be reported under the TRI. The EPA proposed rule would bring over 100 additional PFAS within the TRI's scope.
For each new individually listed PFAS and each PFAS category, EPA is proposing a reporting threshold of 100 pounds. For PFAS categories, that reporting threshold applies to the aggregate quantity for all PFAS included in the category. In some cases, certain PFAS may fall under multiple TRI chemical categories. If a compound falls under two or more listed chemical categories, “the facility must consider the total amount of the compound manufactured, processed or otherwise used that must be applied to the reporting threshold for each category separately.” In other words, if a PFAS falls under multiple TRI chemical categories, the volume of that PFAS may be reported multiple times (if the thresholds are met), thus creating a misimpression of the volume of PFAS actually manufactured, processed or otherwise used at the facility. If finalized, facilities required to report under the TRI will need to reevaluate their method for calculating reporting thresholds. EPA is seeking comment on whether to implement a different reporting threshold.
EPA also intends “to designate all PFAS listed under this action as chemicals of special concern.” In addition to the lower reporting threshold of 100 pounds described above, "chemicals of special concern” (i) are also excluded from the de minimis exemption (for both TRI reporting and TRI supplier notification requirements), meaning facilities must consider any amount of these substances in a mixtures or other products, no matter how small, when making threshold determinations and release and other waste management calculations; (ii) may not be reported on Form A (Alternate Threshold Certification Statement), which is a simplified reporting form; and (iii) have limits on the use of ranges when reporting the reportable amount of these substances. Because the proposed rule would add new individually listed PFAS, as well as categories of PFAS, facilities will need to carefully assess their TRI reporting obligations if the rule is finalized.
The comment period will remain open for 30 days following the upcoming publication of the proposed rule in the Federal Register.
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