Earlier this week, on July 18, 2022, U.S. EPA issued a final rule that subjects five new per- and polyfluoroalkyl substances ("PFAS") to the Toxics Release Inventory ("TRI") reporting requirements under Section 313 of the Emergency Planning and Community Right-to-Know Act ("EPCRA"). The listings are automatic and not subject to notice-and-comment rulemaking under the authority of the 2020 National Defense Authorization Act ("NDAA"), which directed EPA to add PFAS to the TRI reporting program.
The NDAA set forth several mechanisms by which additional PFAS were to be added to the TRI list of reportable chemicals, including issuance of a final toxicity value or significant new use rule ("SNUR") for a substance, or addition of a PFAS substance to the "active" TSCA Inventory. Pursuant to that authority, EPA added the following three chemicals to TRI based on adoption of a final toxicity value in April 2021:
- Perfluorobutane sulfonic acid ("PFBS") CASRN 375-73-5)
- Perfluorobutanesulfonate (CASRN 45187-15-3)
- Potassium perfluorobutane sulfonate (CASRN 29420-49-3)
A fourth PFAS - which we will refer to by its CAS number (CASRN 203743-03-7) due to its absurdly long chemical name - was added based on its inclusion on the "active" TSCA Inventory last year after its chemical identity was no longer claimed as confidential by at least one manufacturer.
For these four PFAS, first TRI reports will be due to EPA by July 1, 2023, for calendar year 2022 data.
A fifth PFAS - another with an extra-long chemical name (CASRN 65104-45-2) - was added to the TRI list as it was determined to be covered by a SNUR issued in July 2020 for long-chain PFAS. Oddly, because the chemical met the terms of a 2020 SNUR, this PFAS was deemed to be "officially" added to the TRI list as of January 1, 2021, meaning that it was subject to reporting for the 2021 calendar year (reports that were due July 1, 2022). EPA does not address if it actually expected a facility to report by this past July 1 for a chemical not added publicly to the TRI list until issuance of a rule that becomes effective August 17, 2022.
The TRI listings are the latest in an ever-growing range of Agency actions to address PFAS. It is clear that the list of TRI-reportable PFAS will steadily expand as EPA continues to issue SNURS and finalize more and more toxicity values. The Agency has recently issued updated Health Advisories for four PFAS chemicals commonly found in drinking water, cosmetics and food packaging, and is also making $1 billion available in grant funding to help communities dealing with PFAS contamination. The grant money is allocated through the Infrastructure Investments and Jobs Act, which in total, authorizes $5 billion for the Agency to reduce PFAS in drinking water in communities facing disproportionate impacts of water contamination. This, combined with increased Congressional support and heightened public attention to PFAS and environmental issues in general, positions EPA deftly for more opportunities to address PFAS.
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