EPA Formally Adds PFAS to the TRI Pursuant to Congressional Mandate

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On May 18, 2020, EPA published its final rule adding 172 per-and polyfluoroalkyl substances ("PFAS") to the list of chemicals requiring reporting on the Toxics Release Inventory (TRI), which heightens the importance of understanding whether your business processes, manufactures, or uses PFAS.   As explained at EPA's website, PFAS are a group of man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFOA and PFOS have been the most extensively produced and studied of these chemicals.  Both chemicals are very persistent in the environment and in the human body — meaning they don't break down and they can accumulate over time.  There is evidence that exposure to PFAS can lead to adverse human health effects.

The Fiscal Year 2020 National Defense Authorization Act required EPA to add these PFAS chemicals to the TRI effective as of January 1, 2020.  Reporting to EPA will be due by July 1, 2021 for calendar year 2020.  The NDAA's requirement accelerated an action EPA had already begun when EPA published its Advanced Notice of Proposed Rulemaking (ANPRM) on December 4, 2019 seeking comment on proposed PFAS TRI reporting.

Reporting will, however, have challenges.  Among the challenges is that testing methodologies for many PFAS are not entirely consistent or fully developed. Indeed, EPA will not even be validating many testing methodologies for media other than drinking water until sometime in 2021 at the earliest.  This is particularly true for air emissions where accepted source and ambient air measurement methods simply do not exist, and what methods are available only target a small number of PFAS compounds.  Additionally, some businesses may not realize PFAS are present in a chemical mixture when, for example, very low levels may not be listed on safety data sheets (even if they should be), but nonetheless exceed de minimis concentrations, or where certain PFAS information is withheld as a trade secret. 

The lack of technical information regarding product concentrations adversely impacts developing accurate release estimates.  Entities that engage in waste management may not appreciate the level of PFAS in the material they process, especially where the originating source may have little understanding as to the level and type of PFAS present in the generated waste.  All of this increases the chances of both significant under- and overreporting. 

These challenges will increase with the inevitable expansion of reportable PFAS through procedures established in the NDAA.  For example, new PFAS will automatically be included within one year after EPA establishes toxicity values for a PFAS chemical, or when EPA either amends or issues a new "significant new use" rule (SNUR).  For example, EPA has issued a proposed ruled supplementing a SNUR involving certain long-chain PFAS used in surface coatings.

When considering these challenges, entities should consider that their reporting obligations require knowledge that the chemicals are present and are being used in excess of reporting thresholds (40 C.F.R. 372.30).  While owners and operators have a duty to make reasonable efforts to determine the nature of the substance in question, that duty is not unlimited.  The inclusion of PFAS in the TRI, and the potential for negative public reaction and regulator attention, may drive increased efforts to find chemical substitutes that are fluorine free, although substitutes may not be readily available. 

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