The U.S. Environmental Protection Agency (U.S. EPA) recently proposed to change annual chemical release reporting requirements for industrial facilities that manufacture, process or otherwise use even very small quantities of per- and polyfluroalkyl substances (PFAS). The U.S. EPA aims to designate PFAS as “chemicals of special concern” under the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §11001 et seq. (1986) and the Pollution Prevention Act (PPA), 42 U.S.C. §13101 et seq. (1990). The practical consequence is to eliminate the thresholds that had exempted many facilities across many industries from reporting while exposing those facilities to the significant penalties for failing to report.
Congress adopted EPCRA in 1986 as a response to the Bhopal, India chemical disaster. The goal was to increase communities’ and state and local governments’ knowledge and access to information on chemicals at individual facilities, along with the chemicals’ uses and releases, in order to better protect both public health and the environment. Among the many requirements imposed by EPCRA, Section 313, commonly referred to 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 document annually their waste management activities and releases into the environment.
If you are not familiar with the requirements of EPCRA or TRI, you should be. Although the proposed rule would make only narrow language changes, the practical effects would be widespread across many industries. The proposed rule establishes new reporting requirements under EPCRA and the PPA for facilities that use PFAS by categorizing them as “chemicals of special concern,” which require annual reporting of even small quantities or de minimis uses to the U.S. EPA’s TRI. Many of the existing “chemicals of special concern” are those identified bioaccumulative, particularly troubling chemicals such as lead, mercury and dioxins.
The 2020 National Defense Authorization Act (NDAA) added certain PFAS to the list of chemicals covered by TRI for the 2021 reporting year. Over 170 PFAS have a reporting threshold of 100 pounds. However, fewer facilities reported their PFAS use in 2021 and 2022 than the agency expected. This “shortfall” in reporting is believed to arise from the de minimis exemption. Under the exemption, companies did not have to count minimal concentrations below the threshold in reporting releases and other waste management calculations to TRI. But “chemicals of special concern” are not subject to the exemption.
Thus, categorizing PFAS as “chemicals of special concern” essentially eliminates the de minimis exemption to reporting. Further, because of the change, facilities will be required to report using the more comprehensive TRI Form R and not the simplified Form A. Finally, to avoid delays in reporting and a two-tier system, the rule also proposes that all future PFAS added to the TRI list will automatically be added to the list of “chemicals of special concern.”
U.S. EPA officials argue the changes will help the agency understand how these chemicals are being managed, recycled or released. It also furthers the agency’s October 2021 PFAS Strategic Roadmap, a whole-of-agency approach to addressing PFAS.
But industry may have a different opinion. Without the exemption, many companies may face difficulties complying due to increased tracking, monitoring and reporting burdens. Thus, many industry groups have urged EPA to maintain the de minimis exemption, arguing it is consistent with similar reporting exclusions for other chemicals.
Also in the rule is a proposal to eliminate the use of the de minimis exemption for all substances on the list of “chemicals of special concern” under the Supplier Notification Requirements. According to the rule, this change “will ensure that purchasers of mixtures and trade name products, containing such chemicals are informed of their presence in mixtures and products they purchase.”
The proposed rule is open to public comments until Feb. 3. It is crucial that companies understand whether they manufacture, process or otherwise use any of the listed PFAS compounds. If the rule moves forward and is finalized without substantive revisions, facilities that use listed PFAS compounds and suppliers whose products contain those compounds will face stricter reporting requirements.
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