EPA Proposes Changes to TRI Reporting of PFAS: Reporting More About Less
On December 5, EPA published in the Federal Register its long-anticipated proposal to eliminate the “de minimis” exemption for reporting small quantities released of per- and polyfluoroalkyl substances (PFAS) subject to Toxics Release Inventory (TRI) reporting. This effectively lowers the threshold for reporting PFAS that EPA was required to add to its TRI reporting requirement pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA). If issued in final form, the action would add PFAS to the list of Chemicals of Special Concern and change the reporting requirements for PFAS. EPA also proposed to remove the availability of the de minimis exemption for Supplier Notification Requirements for all chemicals on the list of Chemicals of Special Concern. These actions will likely increase the reporting burden for affected suppliers and manufacturers.
Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. 11023 (also known as the Toxics Release Inventory (TRI)), requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report annually on their environmental releases and other waste management quantities of such chemicals. These facilities must also report pollution prevention and recycling data for such chemicals.
The TRI regulatory program has two main elements: (1) annual reporting by facilities of releases of TRI-listed chemicals and (2) notifications made by suppliers of TRI substances to customers that the substance is subject to TRI reporting.
Facilities in certain sectors, such as manufacturing and electricity generation, are required to report annually on releases of TRI chemicals if the facility has the equivalent of at least 10 full-time employees; and manufactures, processes or uses more than a certain amount of a TRI-listed chemical per year.
“Releases” is broadly defined, and includes: air emissions such as leaks, evaporation and releases from a stack or pipe; emissions to water, including direct discharges to water bodies and stormwater runoff; and emissions to land, which includes disposal of chemical waste in landfills, and application of certain waste products to farmlands as fertilizer.
There are a number of exemptions to the reporting requirements, such as: de minimis concentrations of a toxic chemical in a mixture; chemicals present in an article; and personal use by employees or other persons at the facility of foods, drugs, cosmetics or other personal items containing toxic chemicals, including supplies of such products within the facility, e.g., a facility-operated cafeteria, store, or infirmary.
The de minimis exemption allows facilities to disregard concentrations of TRI listed chemicals below 1% (0.1% for carcinogens) in mixtures or other trade name products they import, process or otherwise use in making threshold calculations, as well as release and other waste management determinations.
The de minimis exemption does not apply to substances classified as “Chemicals of Special Concern.” Such substances have generally been those that are persistent, bioaccumulative and toxic (PBTs). Such substances have a lower reporting threshold than non-“chemicals of special concern.”
The report is made on “Form R.” “Form R” is the standard TRI reporting form. EPA allows the use of the simplified TRI “Form A Certification Statement,” if facilities meet certain criteria, including that the TRI chemicals at the facility must NOT be a Chemical of Special Concern (e.g., PBT).
A company is subject to the supplier notification requirements if it owns or operate a facility which meets all of the following criteria:
- The facility’s Standard Industrial Classification [SIC] code(s) is/are part of the manufacturing codes.
- The company manufactures (including imports) or processes a TRI chemical.
- The company sells or otherwise distributes a mixture or other trade name product containing the TRI chemical to either a facility in a covered SIC code, or a person that then may sell the same mixture or other trade name product to a firm in a covered SIC code.
The notification must contain:
- A statement that the product contains a chemical subject to TRI reporting.
- The name of each chemical and CAS number.
- The percentage — by weight — of each chemical in the mixture/product.
Notification must be in writing. Letters, labels and product literature are acceptable. If a safety data sheet (SDS) is required, the notification must be attached to the SDS or contained within the SDS.
Each customer must be notified with the first shipment of product received in each calendar year.
Notifications are not required: for a pure chemical if: the chemical contains less than the de minimis level for each chemical (if the chemicals are present at concentrations below 1% of the mixture (0.1% for carcinogens)); the product is in an article that doesn’t release the product; it is a food, drug, cosmetic, alcoholic beverage or tobacco; the product is a consumer product; and when sending waste off site for further waste management.
TRI and PFAS—the NDAA
The 2020 NDAA included two provisions that automatically add PFAS to the TRI list. The first provision, effective January 1, 2020, added to the TRI list, 14 chemicals by name and/or Chemical Abstracts Service Registry Number and additional PFAS that meet specific criteria. On June 22, 2020, the EPA updated the TRI list in the Code of Federal Regulations to reflect the 172 PFAS added to TRI under this section.
Additional PFAS that meet criteria specified in the NDAA are added to the TRI list on an annual basis. Such PFAS are deemed added to the TRI list on January 1 of the year after the specific criteria are met. Through this provision, PFAS will be continuously added to the TRI list over time as additional PFAS meet the criteria outlined in the NDAA. The criteria include:
- The finalization of a toxicity value for the PFAS or class of PFAS
- The determination that a PFAS is covered by a Significant New Use Rule
- When a PFAS is added to the TSCA inventory.
To date, the EPA has added a total of 180 PFAS to the TRI list under the NDAA provisions.
Aside from the addition of PFAS to the TRI list, the NDAA also established a manufacturing, processing or otherwise use reporting threshold of 100 pounds for each of the PFAS added to the TRI list under the NDAA provisions.
The EPA Proposal
The EPA is now proposing to add all PFAS included on the TRI list under the NDAA to the list of “Chemicals of Special Concern.” The practical effect of this change is that Chemicals of Special Concern are excluded from the de minimis exemption, may not be reported on Form A, and have limits on the use of range reporting.
In addition, the EPA is proposing to eliminate the use of the de minimis exemption under the Supplier Notification Requirements for all substances on the list of Chemicals of Special Concern (not just PFAS).
The EPA is also proposing that all PFAS added to the TRI list under the NDAA will automatically be added to the list of “Chemicals of Special Concern” list upon listing, without any separate rulemaking required for that addition.
EPA’s Justification for the Changes
The EPA stated that there was an unexpectedly low number of PFAS reports received for the TRI 2020 reporting year. According to the agency, this was due to fewer than expected reports from PFAS manufacturers and waste disposal facilities. The EPA believes that the de minimis exemption may have been relied upon by many PFAS users and processors, and that is why reports were not received from those entities. Consequently, the agency believes that elimination of the exemptions is required for the EPA to get an accurate understanding of the use of PFAS. Moreover, according to the EPA, the de minimis exemption is also being eliminated for supplier notifications for all Chemicals of Special Concern and not just for PFAS in order to promote consistency. The elimination of the exemptions is expected to create an increased compliance burden on both suppliers and users of substances containing PFAS, as well as suppliers of all chemicals of special concern.
Comments on the proposed action must be received by the EPA on or before February 3, 2023.
© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.