August 15, 2022

Volume XII, Number 227

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August 12, 2022

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EPA Requires TRI Reporting for Five Additional PFAS

The U.S. Environmental Protection Agency (EPA) issued a final rule on July 18, 2022, updating the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). 87 Fed. Reg. 42651. The final rule updates the regulations to identify five per- and polyfluoroalkyl substances (PFAS) that must be reported pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) enacted on December 20, 2019. According to EPA, as this action is being taken to conform the regulations to a Congressional legislative mandate, notice and comment rulemaking is unnecessary. The final rule will be effective August 17, 2022.

EPA’s July 18, 2022, announcement states that the NDAA provides the framework for the addition of PFAS to the Toxics Release Inventory (TRI) each year. As previously announced, for TRI reporting year 2022 (reporting forms due by July 1, 2023), reporting is required for four additional PFAS. The July 18, 2022, final rule “officially incorporates these requirements” into the TRI regulations. Additionally, the TRI update provides a conforming edit to the C.F.R. to include a PFAS that met TRI listing requirements under the NDAA as of reporting year 2021.

TRI data are reported to EPA annually by facilities in certain industry sectors, including federal facilities, that manufacture, process, or otherwise use TRI-listed chemicals above certain quantities. The data include quantities of such chemicals that were released into the environment or otherwise managed as waste. EPA states that the information collected through the TRI allows communities to learn how facilities in their areas are managing listed chemicals. The data collected also help inform EPA’s efforts to understand better the listed substances.

Addition of Three PFAS with Final Toxicity Values

The NDAA includes a provision that automatically adds PFAS to the TRI upon EPA issuing a final toxicity value. In April 2021, EPA issued a final toxicity value for the following three chemicals, and therefore they were added to the TRI:

  • Perfluorobutane sulfonic acid (PFBS) (Chemical Abstracts Service Registry Number (CAS RN) 375-73-5);

  • Perfluorobutanesulfonate (CAS RN 45187-15-3); and

  • Potassium perfluorobutane sulfonate (CAS RN 29420-49-3).

Reporting forms for these three PFAS will be due to EPA by July 1, 2023, for calendar year 2022 data.

Addition of One PFAS No Longer Claimed as Confidential Business Information (CBI)

Under NDAA Section 7321(e), EPA must review CBI claims before adding a PFAS to the TRI if the chemical identity is subject to a claim of protection from disclosure under 5 U.S.C. Section 552(a). EPA states that it previously identified one PFAS, CAS RN 203743-03-7, for addition to the TRI based on the NDAA’s provision to include certain PFAS upon the NDAA’s enactment. Due to a CBI claim related to its identity, this PFAS was not added to the TRI at that time, however. EPA states that the identity of this PFAS was subsequently published in an update to the Toxic Substances Control Act (TSCA) Inventory in October 2021 because at least one manufacturer did not claim it as confidential during prior reporting under the Chemical Data Reporting (CDR) rule. Because it was no longer confidential, it was added to the TRI.

Reporting forms for this PFAS will be due to EPA by July 1, 2023, for calendar year 2022 data.

Addition of One PFAS Subject to a Significant New Use Rule (SNUR)

The NDAA identifies certain regulatory activities, such as being subject to a SNUR, that automatically add PFAS or classes of PFAS to the TRI beginning January 1 the following year. In 2021, EPA updated the C.F.R. with three PFAS that were added to the TRI on January 1, 2021, pursuant to NDAA Section 7321(c), due to their addition to an existing SNUR under TSCA. EPA has since determined that one additional PFAS, CAS RN 65104-45-2, was designated as “active” on the TSCA Inventory and was added to the SNUR in 2020. Because the PFAS met the structural definition in the SNUR and was designated “active,” it triggered automatic addition to TRI under the NDAA, effective January 1, 2021.

The first reporting forms for this PFAS, which met NDAA conditions as of January 1, 2021, were due to EPA by July 1, 2022, for calendar year 2021 data.

Commentary

As EPA continues to establish final toxicity values and issue SNURs for PFAS, the list of TRI-reportable PFAS will continue to grow. Potential reports must review carefully which PFAS are reportable during each reporting year. Depending on how aggressively EPA pursues SNURs on PFAS as a category, hundreds or thousands of PFAS could become reportable.

©2022 Bergeson & Campbell, P.C.National Law Review, Volume XII, Number 200
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About this Author

Lynn Bergeson, Campbell PC, Toxic Substances Control Act Attorney, federal insecticide lawyer, industrial biotechnology legal counsel, Food Drug Administration law
Managing Partner

Lynn L. Bergeson has earned an international reputation for her deep and expansive understanding of the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), and especially how these regulatory programs pertain to nanotechnology, industrial biotechnology, synthetic biology, and other emerging transformative technologies. Her knowledge of and involvement in the policy process allows her to develop client-focused strategies whether...

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