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EPA Considers Adding PFAS Chemicals to the Toxic Release Inventory

EPA has taken another step toward implementing its PFAS Action Plan by publishing an Advanced Notice of Proposed Rulemaking (ANPR) on December 4, 2019, 84 Fed. Reg. 66369. The ANPR solicits comments on whether per- and polyfluoroalkyl substances (PFAS) should be added to the list of toxic chemicals subject to the reporting requirements of Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), also referred to as the Toxic Release Inventory (TRI) program. 

The ANPR seeks comments specifically on which PFAS, if any, should be listed, whether to list them individually or in one or more categories (or some combination of both), and the appropriate thresholds to apply. 

There is much debate about the categorical listing. PFAS are a very large group of chemicals, consisting of about 5,000 substances, of which about 600 are listed as active on the TSCA Inventory. The ANPR notes that reporting on a category of PFAS being released or managed as waste would be more limited than if reporting was required for individual PFAS.

EPA is considering lowering the statutory thresholds of 25,000 pounds for manufacturing or processing and 10,000 pounds for otherwise using the listed chemicals because PFAS can be both bioaccumulative and persistent in the environment.

In making a determination to add a chemical to the EPCRA reporting requirements, EPA bases that decision on toxicity without considering potential exposure pathways related to that chemical. A chemical must meet one of the EPCRA 313(d)(2) listing criteria, which focus on the potential for adverse acute or chronic health effects. There is little or no toxicity data available most PFAS, thus raising questions about whether EPA can meet the statutory criteria for a categorical approach. However, EPCRA provides EPA with broad discretion to add a chemical to the TRI list based on toxicity or on toxicity and the tendency of a chemical to persist or bioaccumulate in the environment.

EPA has collected scientific literature on approximately 30 PFAS, which it makes available at its Health and Environmental Research Online webpage. EPA seeks additional information through this ANPR to determine which PFAS are currently active in commerce and have sufficient toxicity information available to meet the EPCRA criteria. 

An ANPR precedes a proposed rulemaking, so there are several additional steps before any PFAS would trigger TRI reporting requirements. To add chemicals to the TRI, EPA must propose and finalize a rule, which it would do after considering comments on the ANPR.

This year Congress has considered short-circuiting this regulatory process. Currently, H.R. 2577 and S. 1507, companion EPCRA bills, would automatically add the PFAS listed as active on the TSCA Inventory to the TRI without further action by EPA. Prospects for passage are unclear, since House and Senate conferees on S. 1790, the National Defense Authorization Act, could not agree on a different package of PFAS provisions, including listing PFAS as CERCLA reportable substances; negotiations ended the first week of December.

The deadline for comments on this ANPR is February 3, 2020.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 344



About this Author

Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

Mark N. Duvall Chemicals Regulation Attorney Beveridge & Diamond Washington, DC

Mark has over two decades of experience working in-house at large chemical companies. 

His focus is product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances Control Act (TSCA) includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions. Since the enactment of TSCA amendments in 2016, he has been heavily involved in advocacy, compliance activity, and litigation arising from EPA's implementation of these amendments. He also works with foreign counterparts to TSCA, including REACH and CEPA.

He is also a leader of the firm’s Occupational Safety and Health practice. He has extensive experience with OSHA and state OSHA inspections, enforcement litigation, compliance counseling, advocacy, and rulemaking. He has counseled clients on the EPA risk management program requirements under Section 112(r) of the Clean Air Act and state worker protection programs, and on inspections by the Chemical Safety and Health Investigation Board.

He has extensive experience with the Federal Insecticide, Fungicide, and Rodenticide Act, particularly with respect to regulation of antimicrobials, and with the Biocidal Products Directive in Europe.

He heads the firm’s FDA practice, having worked on FDA regulation of food and food additives, dietary supplements, drugs, medical devices, and cosmetics, and European counterparts. He is knowledgeable about human testing requirements, having served as the Chair of an institutional review board for several years.

He has counseled clients on the regulation of consumer products by the Consumer Product Safety Commission and the Federal Trade Commission. He has reviewed hundreds of green marketing claims and counseled on federal, state, and international regulation of such claims.

He has worked on green chemistry issues at the federal and state levels, as well as a variety of voluntary programs that affect products. He has helped clients with the Emergency Planning and Community Right-to-Know Act, the Controlled Substances Act, the Chemical Weapons Convention, and other chemicals-related requirements.

He has advised clients and written and lectured on the regulation of the products of nanotechnology by FDA and by EPA under FIFRA and TSCA, and on related product stewardship issues.

Service Areas & Industries

  • Chemicals Regulation
  • Chemicals
  • Food, Beverage
  • Occupational Safety and Health
  • Pesticides
  • Industrial Hemp & Cannabis