Addition of Certain PFAS to the TRI by the National Defense Authorization Act
Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) adds 172 per- and polyfluoroalkyl substances (PFAS) to the list of chemicals covered by the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).
- PFAS additions are effective as of January 1, 2020. Reporting forms for these chemicals will be due to EPA by July 1, 2021, for calendar year 2020 data.
- Facilities in TRI-covered industry sectors should track and collect data on these chemicals during 2020.
- TRI reporting requirements apply to these PFAS (e.g., supplier notification) and TRI reporting exemptions, if applicable, are available for these chemicals.
- The de minimis level for Perfluorooctanoic acid (PFOA) (CASRN: 961-11-5) is 0.1%. All of the other PFAS additions have a de minimis level of 1%.
- The NDAA establishes TRI manufacturing, processing, and otherwise use reporting thresholds of 100 pounds for each of the listed PFAS.
- EPA will soon revise the EPCRA Section 313 list of reportable chemicals in the Code of Federal Regulations (CFR) to include the 172 PFAS added by the NDAA.
On December 20, 2019, the NDAA was signed into law. Among other provisions, Section 7321 adds certain PFAS to the EPCRA Section 313 list of reportable toxic chemicals as of January 1, 2020. Specifically, the NDAA identifies 14 chemicals by name and/or Chemical Abstract Service Registry Number (CASRN) in Section 7321(b) and identifies additional PFAS based on the following criteria:
"(i) listed as an active chemical substance in the February 2019 update to the TSCA Inventory under section 8(b)(1) and (ii) on the date of enactment of this Act, subject to the provisions of—
(I) section 721.9582 of title 40, Code of Federal Regulations; or
(II) section 721.10536 of title 40, Code of Federal Regulations."
EPA has reviewed the above-listed criteria and found 170 chemicals that are not subject to a claim of protection from disclosure and meet the requirements of this part of the NDAA. Twelve of these are among the 14 PFAS specifically listed in the NDAA; with the addition of the other two, there are a total of 172 PFAS subject to listing under the NDAA.
For PFAS that are subject to a claim of protection from disclosure, the NDAA requires that EPA must follow a process provided by Section 7321(e) before any such PFAS is added to the TRI list. Therefore, PFAS that are subject to a claim of protection from disclosure will not be added to the EPCRA Section 313 toxic chemical list until EPA completes the provided process.
As established by the NDAA, the addition of these PFAS is to be effective January 1 of the calendar year following the date of enactment of the NDAA. Accordingly, these 172 PFAS are reportable for the 2020 reporting year (i.e., reporting forms due July 1, 2021). Additionally, the NDAA established a manufacture, processing, and otherwise use reporting threshold of 100 pounds for each of the listed PFAS. EPA will be revising the EPCRA Section 313 list of reportable chemicals in 40 CFR 372.65 to include the 172 PFAS added by the NDAA.
Note that EPA previously provided a list of PFAS added by the NDAA (the earlier version listed 160 PFAS). Following review of the previously provided list, and in response to comments from stakeholders regarding its content, EPA has removed 12 PFAS that did not meet the structural definitions provided by 721.10536 and has added 24 that do meet those definitions. These 24 additional PFAS were included on this updated list because (1) their structure meets the PFAS category definition provided by 40 CFR 721.10536 or (2) though the name of the PFAS does not indicate a specific chain length, its chain length could fit within a definition provided by 721.10536.
Additionally, the NDAA provides a framework for PFAS to be added automatically to the TRI list on January 1 of the year following certain EPA actions (NDAA Section 7321(c)). For example, the NDAA automatically adds a PFAS to the TRI list in response to the EPA finalizing a toxicity value for it.
Lastly, the NDAA instructs EPA to consider certain other PFAS to the TRI list for possible addition (NDAA Section 7321(d)). EPA published an Advance Notice of Proposed Rulemaking (ANPRM) on December 4, 2019, to gather information for use in a potential rulemaking to add certain PFAS to the TRI chemical list. While the NDAA adds certain PFAS to the TRI chemical list, there are additional PFAS that were not added by the NDAA. Through the ANPRM, EPA solicited comment on PFAS generally as they relate to TRI reporting, including comment on appropriate reporting thresholds, categorization of PFAS, availability of information on human health and environmental toxicity, persistence, and bioaccumulation of PFAS of these additional PFAS that would help determine if they meet the statutory criteria for inclusion on the TRI list of chemicals.