If You Handle PFAS, Your TRI May Be Different Next Year

Now that the 2019 Toxic Release Inventory reports are just about done, it is time to look ahead. If you or your clients manufacture cosmetics, cookware, medical devices, food packaging, carpets, textiles, outdoor gear or many, many other products, you may be working with one of the 172 perfluoroalkyl and polyfluoroalkyl substances (PFAS) added to the Toxic Release Inventory (TRI) for 2020. You need to get ready.

What is the PFAS Act of 2019?

As we reported here, in January 2020, Congress included the PFAS Act of 2019 in the National Defense Authorization Act for Fiscal Year 2020. Among the several requirements in this act was an expansion of the list of chemicals that require reporting under the Toxic Release Inventory program to include PFAS.

What has changed for 2020?

The list of chemicals subject to TRI reporting now includes 172 PFAS, which are listed by U.S. EPA here. Fourteen of these were added by name or CAS number, including PFOA (and its salts), PFOS (and its salts), PFNA, PFHxS, and GenX, and the remainder were added by category. Each of these has a reporting threshold of 100 pounds, unless EPA acts to change that threshold by regulation.

What does this mean?

PFAS compounds are found in materials used in many sectors. The threshold of 100 pounds is relatively low, compared to the usual thresholds of 10,000 and 25,000 pounds. The net impact is that facilities subject to TRI reporting will need to scour current Safety Data Sheets and other available information to determine if any of the newly listed compounds are manufactured, processed or otherwise used at the facility. It is a good idea to keep in your files calculations done to determine if a reporting threshold is exceeded, even if reporting is not required.

What has not changed?

The usual exemptions continue to be available to facilities, without change. An exemption that may be useful in the PFAS context is the de minimis exemption. Under 40 CFR 372.38(a), if a TRI chemical is present in a mixture at a concentration below 0.1% for carcinogens and 1% for all other chemicals, then a facility does not need to include the quantity of the chemical in that mixture in determining if the reporting threshold has been met or in determining the amount of a release that requires reporting. According to EPA’s website, the de minimis level for PFOA is 0.1%; the de minimis level for the other listed PFAS is 1%. Other exemptions are also unchanged.

What is in store for the future?

The PFAS Act of 2019 requires certain additional actions by EPA. Within five years, EPA is required to determine whether the 100 pound reporting threshold is appropriate. Further, additional PFAS will be added to the TRI automatically (as of January 1 of the following year) whenever:

• EPA finalizes a toxicity value for a PFAS. (EPA has a provisional peer-reviewed toxicity value for PFBS, adopted in 2014.) Toxicity values are used in risk assessments under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
• EPA finalizes a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) for a PFAS or class of PFAS.
• EPA adds a PFAS or class of PFAS to an existing SNUR.
• EPA designates a PFAS or class of PFAS as active on the TSCA Inventory.

In addition, over the next two years, EPA must determine whether certain listed PFAS meet any of the listing criteria in section 313. If so, EPA must add them to the TRI list within two years of making that determination.

What should you do now?

It is prudent to determine now if any of the PFAS newly subject to TRI reporting are present in materials used at your facility so that you can ensure you are gathering the information necessary to determine if a reporting threshold is met for that chemical and to calculate any release amounts for reporting. In addition, if you manufacture or process any of the newly listed PFAS and then further distribute it in a mixture or trade name product, consider if a supplier notification is required. Under 40 CFR 372.45, supplier notifications were required for the first shipment in 2020.

Beveridge & Diamond’s Emergency Planning and Response practice group advises clients on all aspects of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA). Our work has included developing reporting and compliance protocols for companies, advising clients on the completion of Section 311 submissions, Tier II reports and Form R submissions, successfully defending significant enforcement actions brought by EPA, and assisting companies with voluntary disclosures of past reporting violations under the statute. For more information, please contact the authors.