EPA Proposes Adding More PFAS to the Toxics Release Inventory

Established in 1986, the Emergency Planning and Community Right-to-Know Act (EPCRA) imposed requirements for federal, state and local governments, as well as tribes and industry, to strengthen emergency planning and "Community Right-to-Know" reporting on hazardous and toxic chemicals. Section 313 of the EPCRA created the Toxics Release Inventory (TRI), a program that requires facilities to complete and submit a toxic chemical release inventory form (Form R) annually for applicable chemicals manufactured and used above the applicable threshold quantities. The data from this program allows individuals, researchers and other actors to track and analyze chemical trends.

The TRI program was further refined under the Pollution Prevention Act of 1990 (PPA) to collect and track data on industry waste generation and progress toward sustainable waste management. Now, mandated reporters are required to provide descriptions of ongoing measures to reduce sources of pollution along with on-site releases, disposal, transfers and recycling of TRI chemicals in waste.

Later, Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) created a framework for the addition of per- and polyfluoroalkyl substances (PFAS) to the TRI on an annual basis, along with adding nine inaugural compound categories and 172 individual PFAS chemicals. As of May 2024, with these annual increases, the total number of TRI-listed PFAS that are reportable for reporting year 2024, with a reporting deadline of July 1, 2025, encompasses 196 individual chemicals. Under this rule, PFAS compounds are automatically added to the upcoming fiscal year's TRI enforcement list if one of the following conditions is met:

• Final Toxicity Value. The date on which the EPA Administrator finalizes a toxicity value for the PFAS or class of PFAS falls before Jan. 1 of the upcoming reporting period or
• Significant New Use Rule (SNUR). The date on which the EPA Administrator makes a covered determination for the PFAS or class of PFAS falls before Jan. 1 of the upcoming reporting period or
• Addition to Existing Significant New Use Rule. The date on which the PFAS or class of PFAS is added to a list of substances under a covered determination falls before Jan. 1 of the upcoming reporting period or
• Addition as an Active Chemical Substance. The PFAS or class of PFAS to which a covered determination applies is:
  • added to the list published under section 8(b)(1) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq.) and designated as an active chemical substance under TSCA section 8(b)(5)(A) or
  • designated as an active chemical substance under TSCA section 8(b)(5)(B) on the list published under TSCA section 8(b)(1).

Given these requirements, on Jan. 9, 2024, EPA announced it automatically added seven new, individually listed PFAS to the TRI list. EPA also published notice of its cumulative PFAS additions to the TRI list to reflect the development of new final toxicity values of said PFAS compounds curated from SNURs and other TSCA actions on May 17, 2024.

EPA also published a final rule changing reporting requirements for PFAS listed in the TRI on Oct. 31, 2023. The final rule includes these compounds added to the list of chemicals of special concern, eliminates the de minimis exemption for "Supplier Notification Requirements" for all chemicals of special concern and limits the use of range reporting. EPA contends that elimination of the de minimis exemption and range reporting options will provide a more complete picture of PFAS releases and waste management quantities. As described by EPA, some requirements became effective for reporting year 2023 (forms were due by July 1, 2024, for 189 PFAS compounds), but the most significant changes will be implemented in reporting year 2024 (forms due July 1, 2025, for 196 PFAS compounds).

The Proposed Rule

On Oct. 8, 2024, EPA proposed to add 16 individually listed PFAS substances and 15 PFAS categories representing over 100 individual PFAS to the TRI list as "chemicals of special concern." This means companies will be required to use a more stringent reporting threshold of 100 pounds as opposed to the standard thresholds of 25,000 pounds for manufacturing and processing and 10,000 for other uses.

If finalized as proposed, all of the PFAS in a given category would count toward the 100-pound reporting threshold for that category. This change would require companies to report on PFAS that are similar to one another even if each PFAS does not meet the reporting threshold individually.

The rule also proposes additional activities that would trigger PFAS being automatically added to the TRI as required by Section 7321 of the NDAA. The rule specifically clarifies how a "final toxicity value" for a PFAS compound is determined, given the existing confusion. The rule elaborates that the NDAA did not limit the term "toxicity value" to values finalized by a particular EPA program or office, using rather broad language. This means the currently constrained actions are not all-encompassing of the activities that should trigger a PFAS compound to be added to the TRI list. Instead, any action that has produced a "finalized" toxicity value is further described in the proposed rule to mean "to produce a toxicity value for a chemical following established Agency regulations, guidance, protocol, or procedure(s)."

In practice, this means that any action under EPA's jurisdiction, including publications from the Integrated Risk Information System (IRIS), EPA's Provisional Peer-Reviewed Toxicity Values (PPRTVs), TSCA Section 6 risk evaluations, Safe Drinking Water Act Toxicity Assessments and additional EPA evaluations could trigger the addition of a PFAS compound to the TRI the following year.

The Impact on Businesses

Facilities in a covered industry sector employing 10 or more full-time equivalent employees and manufacturing TRI-listed chemicals in quantities over a given annual threshold must file TRI reports. Facilities uncertain of their status can use EPA's Threshold Screening Tool to understand if their North American Industry Classification System (NAICS) Code triggers these requirements. Generally, mining, utility, manufacturing, wholesalers of nondurable goods, wholesale electronic markets and agent brokers, publishing, hazardous waste and federal facilities are governed. Given the expansive list of PFAS compounds EPA is proposing to add to the reporting list and the expansion of activities that would automatically add PFAS compounds to the TRI list, it is highly likely that more facilities will be required to submit reports.

States vary in charging fees for TRI data form submissions, but regardless of location, facilities will need to expend resources to maintain annual reporting and up-to-date records. Additionally, failure to report use of TRI covered chemicals above the reporting threshold can result in monetary fines into the tens of thousands.

Next Steps

EPA is seeking comment on both the addition of certain PFAS to the TRI list and the new criteria proposed for automatically adding future PFAS to the TRI list. Comments are due to EPA's docket by Dec. 9, 2024. The agency is seeking comment on the following issues:

• the efficacy of EPA's categorical approach to listing PFAS, including commentary on the validity of the categories described (salts, acyl/sulfonyl halides and anhydrides)
• the 100-pound threshold being proposed for reporting
• additional ways to expedite the automatic addition of PFAS to the TRI list such as through expanding the definition of a "final toxicity value" to toxicity values determined by agencies outside EPA
• the validity on whether EPA actions other than those currently utilized should qualify as "finaliz[ing] a toxicity value" and triggering automatic addition of a PFAS compound to the TRI list

To learn more about the proposed rule, please contact the authors or a member of Holland & Knight's Emerging Contaminants and PFAS Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.