172 PFAS Substances Added to TRI Reporting
On December 4, 2019, US EPA published an Advance Notice of Proposed Rulemaking (ANPRM) in order to gather information for use in a potential rulemaking to add certain per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) chemical list. As part of the ANPRM rulemaking process, US EPA opened a 60‑day comment period and solicited stakeholder comments on which PFAS should be evaluated for listing, how they should be listed, and what would be appropriate reporting thresholds due to their persistence and bioaccumulation potential as well as any additional data to inform US EPA’s final decision of which PFAS may meet the Emergency Planning and Community Right‑to‑Know Act (EPCRA) Section 313 listing criteria. Section 313 of EPCRA requires US EPA to collect an inventory of routine toxic chemical releases from manufacturing. Chemicals are considered by US EPA for inclusion on the EPCRA Section 313 list based on their potential for acute and chronic health effects and environmental impacts.
The public comment period for the ANPRM ended February 3, 2020. As of this publishing, a final rule has not been released.
On the heels of the ANPRM, President Trump signed into law the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116‑92; NDAA) on December 19, 2019. In addition to addressing other matters included in the annual budget and expenditures for the U.S. Department of Defense, Section 7321 of the NDAA adds 172 PFAS to the list of chemicals covered by the TRI under Section 313 of the EPCRA. In addition, the NDAA allows for US EPA to add more PFAS chemicals to the TRI requirements in the future.
Since January 1, 2020, the NDAA has required companies to track and report releases for certain PFAS that exceed the 100-pound threshold and submit a TRI report by July 1, 2021, for calendar year 2020 data. The de minimis level for perfluorooctanoic acid (PFOA; CASRN: 961-11-5) is 0.1%. All other PFAS have a de minimis reporting level of 1%.
Any differences between the NDAA and the ANPRM will be incorporated before finalizing the rule and updating the EPCRA Section 313.
How Analytes Were Chosen for the NDAA PFAS List
Chemicals were added to the TRI list if they met two criteria: (1) they were subject to a significant new use rule at either 40 CFR 721.9582 or 721.10536 on or before December 20, 2019; and (2) they were identified as active in commerce on the Toxic Substances Control Act (TSCA) Inventory that was published in February 2019. Chemicals meeting only one of the two criteria were not added to the TRI list.
Entities Affected by the New Rule
An entity may be affected by this action if it manufactures, processes, or otherwise uses PFAS. The proposed rule includes a list of NAICS codes; however, the list is not exhaustive. There may be additional NAICS codes affected if they are similar enough to those listed.
A more detailed description of the types of facilities covered by the TRI regulations that are subject to reporting is located here. The other applicability criteria are detailed in 40 CFR Part 372, subpart B.
The low TRI reporting threshold is concerning to many and has given rise to calls for more data and science-based investigations into the human health risks and environmental toxicity of PFAS. With the ubiquitous nature of many of the compounds, manufacturers may be inadvertently processing or otherwise using, PFAS in their operations resulting in PFAS becoming a part of their final products or waste streams. Suppliers are required to indicate on their safety data sheet (SDS) whether a chemical is subject to the TRI. Manufacturers simply haven’t had the time or the regulatory final decision to make those changes to their SDSs. It is likely that special interest and activist groups will search for anomalies in reported PFAS TRI data on US EPA’s public facing TRI database when pursuing civil suits.
And still of concern are the analytical methods that continue to undergo changes and are under development that are needed for accurately reporting PFAS in various matrices.
Environmental Standards’ PFAS Work Group, marrying our environmental, health and safety (EHS) compliance and chemistry practices, continues to monitor the issues around TRI reporting for PFAS. We recommend that you choose wisely when selecting a laboratory to perform PFAS analysis on your behalf. We also suggest you understand the ramifications of a laboratory’s reporting detection limit for PFAS analysis especially as it relates to waste characterization. Lastly, your TRI reporting should be performed by an experienced professional with extensive knowledge of the TRI program and the EPCRA requirements to avoid misreporting that can result in costly fines and civil penalties.