The number of per- and polyfluoroalkyl substances (PFAS) on the Toxics Release Inventory (TRI) list is expected to expand greatly. The U.S. Environmental Protection Agency (EPA) proposed on Oct. 8, 2024, to add 16 PFAS and 15 PFAS categories representing more than 100 individual PFAS subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) to comply with the National Defense Authorization Act for Fiscal Year 2020 (NDAA). The EPA does not propose to list chemicals to the TRI pursuant to the NDAA, but rather describes what EPA documents and activities involving PFAS would trigger an automatic addition under the NDAA. This column discusses the proposal.
Background
The NDAA provides several avenues for PFAS to be added to the TRI:
- Section 7321(b), “Immediate Inclusion,” provides that specific PFAS shall be deemed included in the TRI beginning Jan. 1 of the calendar year following the date of enactment of the NDAA.
- Section 7321(c), “Inclusion following Assessment,” states PFAS shall be added to the TRI beginning Jan.1 of the year after the date on which certain events occur, such as the EPA issuing a final toxicity value for a PFAS, a PFAS in a significant new use rule (SNUR) or a PFAS added to an existing SNUR and designating a PFAS as active on the TSCA Inventory.
- Section 7321(d) requires EPA to determine within two years of the date of enactment of the NDAA whether certain PFAS (including classes) meet any of the listing criteria of EPCRA Section 313(d)(2).
The EPA used its existing human health assessments and listed support documents prepared explicitly for this rulemaking to evaluate the human health and environmental effects associated with the PFAS being proposed for listing. The EPA requests comment on its proposed determinations and whether sufficient evidence exists to establish that one or more of the criteria for listing under EPCRA Section 313(d)(2) have been met.
Under the proposal, reporting would require a facility to submit only one form for a category, which accounts for activities and quantities associated with all member chemicals. First, facilities would calculate the total weight of all chemicals under a category for each threshold activity (i.e., manufacture, process and otherwise use) and then compare the totals to the applicable threshold(s). If a facility exceeds one or more reporting thresholds (i.e., for manufacture, process and otherwise use) for a proposed PFAS category, the facility would be required to report the aggregated quantities of releases and other waste management activities of the chemicals in that chemical category.
For PFAS added to the EPCRA Section 313 toxic chemical list under the provisions of NDAA Section 7321(b) and (c), the EPA states that Congress established a manufacture, processing and otherwise use reporting threshold of 100 pounds for each of the listed PFAS. The 100-lb reporting threshold reflects a concern for small quantities of PFAS due to their toxicity and persistence in the environment. The EPA requests comment on the reporting threshold (i.e., whether a different threshold would equally or more capably obtain reporting on a substantial majority of total releases for these PFAS).
The EPA proposes to add all PFAS described in Unit III of the proposed rule to the list of chemicals of “special concern” at 40 C.F.R. Section 372.28 that have reporting thresholds of either 10 or 100 pounds depending on their persistent and bioaccumulative properties. Chemicals of special concern are also excluded from the de minimis exemption (for both TRI reporting and TRI supplier notification requirements), may not be reported on Form A (Alternate Threshold Certification Statement), and have limits on the use of range reporting.
Additional PFAS are automatically added to the TRI list on an annual basis by NDAA Section 7321(c). PFAS that meet the criteria in Section 7321(c) are deemed added to the TRI list on Jan. 1 of the year after those criteria are met. The EPA states that the criteria that lead to listing pursuant to NDAA Section 7321(c) are:
- the date on which the PFAS or class of PFAS is added to a list of substances covered by a determination, including the derivation of a final toxicity value;
- issuance of an SNUR;
- addition to an existing SNUR; and,
- addition as an Active Chemical Substance, among other determinations.
Discussion
The EPA’s proposal to add over 100 PFAS substances to the TRI list is a big deal. The agency has requested comment on many important issues, and significant comment is expected. How the EPA responds to the comments will set the stage for many more listings and much more TRI reporting in the years to come.
