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EPA Proposes New PFAS Reporting Requirements for the Toxic Release Inventory

March 8, 2023

The U.S. Environmental Protection Agency (“EPA”) released a proposed rulemaking in December to add per- and polyfluoroalkyl substances (“PFAS”) subject to reporting under the Emergency Planning and Community Right-to-Know Act (“EPCRA”) and the Pollution Prevention Act to the list of Lower Thresholds for Chemicals of Special Concern.

Under the EPCRA, certain facilities that manufacture, process or otherwise use listed chemicals in amounts above reporting threshold levels must annually report environmental releases and other waste management quantities of the listed chemicals. This “Toxic Release Inventory,” or “TRI,” provides EPA and the public with information regarding the releases and use of chemicals from covered facilities.  EPA states that the proposed changes will result in greater reporting of the use and waste management of PFAS, including PFAS contained in chemical mixtures and trade name products.

In the rulemaking, EPA notes that PFAS tend to accumulate and remain in the environment and the human body for extended periods of time. Due to this longevity, PFAS are commonly known as “forever chemicals.” PFAS have been used for several decades in a variety of consumer and industrial products.

EPA’s proposal notes that these PFAS already have a lower reporting threshold of 100 pounds.  Besides that existing requirement, the addition of these PFAS to the list of chemicals of special concern would eliminate the use of the de minimis exemption for PFAS and the option to use the less burdensome Form A.

Facilities subject to EPA’s TRI Program generally must submit TRI “Form R,” but, if certain threshold requirements apply, the less burdensome “Form A” may be submitted instead. Form R is a more comprehensive annual report of the use and release of listed chemicals, which includes one chemical per form. Form A is a more general form on which multiple chemicals may be reported on a single form. Unlike Form R, Form A requires only the identity of the listed chemical and does not require the submission of any information on releases, waste management, source reduction, or any other chemical-specific information.  The rulemaking would eliminate the option for the use of Form A for PFAS, and would “result in an additional 605 to 1,997 Form R reports being filed annually.”

EPA further proposes 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.” As this proposal applies beyond PFAS compounds to all chemicals listed as “chemicals of special concern,” it will likely have an even broader impact. Under the existing de minimis exemption, suppliers are not required to provide notifications for mixtures or trade name products containing listed chemicals where the chemical concentration is below one percent (1%) of the mixture. EPA’s concern is that this exemption accounts for concentration but not quantity. So, “it is possible that significant quantities of chemicals of special concern can be overlooked by reporting facilities if suppliers can use the de minimis exception.” EPA proposes to eliminate this exception for all chemicals of special concern, including PFAS, and suggests this change “will help ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase.”

Potential affected industries are myriad.  According to EPA’s rule proposal, firms engaged in the industrial inorganic chemicals, coal and metal mining, and solvent recovery services industries, among many others, could be impacted by these new rules.

For more information on EPA’s proposed changes to TRI reporting, please contact the author Jordan Asch at jasch@riker.com or any attorney in our Environmental Practice Group.

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Jordan M. Asch

Jordan M. Asch

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