Implementing Statutory Addition of Certain Per- and Polyfluoroalkyl Substances to the TRI Chemical List
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EPA is taking the next step to implement an important per- and polyfluoroalkyl substances (PFAS) requirement of the National Defense Authorization Act (NDAA). The NDAA added 172 PFAS to the list of chemicals required to be reported to the Toxics Release Inventory (TRI) and established a 100-pound reporting threshold for these substances. The agency is publishing a final rule that officially incorporates these requirements into the Code of Federal Regulations for TRI.
Note that the NDAA requires additional implementation steps. For example, PFAS subject to a claim of protection from disclosure that otherwise met the automatic listing requirements provided by the NDAA must first go through a review process prior to being added to the TRI list. EPA is working to complete this process for any such PFAS identified for addition by the NDAA and will provide related updates via the Addition of Certain PFAS to the TRI by the NDAA webpage.
As this action was taken to conform the TRI regulations to a Congressional legislative mandate, this rule became effective immediately. Per the NDAA requirements, the PFAS additions became effective as of January 1, 2020. Reporting forms for these PFAS will be due to EPA by July 1, 2021, for calendar year 2020 data. EPA expects to release these data by July 31, 2021.
On December 20, 2019, the NDAA was signed into law (PL 116-92). Among other provisions, Section 7321 of the NDAA added certain PFAS to the EPCRA Section 313 list of reportable toxic chemicals as of January 1, 2020. Specifically, the NDAA identified 14 chemicals by name and/or Chemical Abstract Service Registry Number (CASRN) in Section 7321(b) and identified 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 reviewed the above-listed criteria and found 170 chemicals that met the requirements of this part of the NDAA and whose identity is not confidential business information (CBI). 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 this law whose identity is not CBI.
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. Updates regarding this process will be provided via the Addition of Certain PFAS to the TRI by the NDAA webpage.
As established by the NDAA, the addition of these PFAS was effective January 1 of the calendar year following the date of enactment of the NDAA. Accordingly, these 172 non-CBI PFAS are reportable for the 2020 reporting year (i.e., reports due July 1, 2021). In addition, the NDAA established a manufacture, processing, and otherwise use reporting threshold of 100 pounds for each of the listed PFAS.
Q: Are the 172 listed PFAS eligible for the exemption from reporting for de minimis concentrations in mixtures?
A: In accordance with the NDAA, the TRI final rule codifies the 172 PFAS at 40 CFR § 372.65, the list of TRI chemicals and chemical categories. The 172 PFAS are not also listed at 40 CFR § 372.28, chemicals of special concern. Accordingly, facilities may consider the de minimis exemption from TRI reporting as part of their threshold determinations and release and other waste management calculations for these PFAS.
Q: To avoid TRI reporting for a listed PFAS chemical, is it the case that one could dilute the 100 lbs of PFAS into 10,000 lbs of a different solution to qualify for the de minimis exemption?
A: No, a facility cannot dilute the concentration of a chemical in order to qualify for the de minimis exemption. Once a listed toxic chemical concentration is above the appropriate de minimis concentration, threshold determinations and release and other waste management calculations must be made, even if the chemical later falls below the de minimis level in the same process stream. However, if a facility manufactures PFAS and then incorporates the PFAS into a mixture below the de minimis concentration level and sells this mixture to another facility, the recipient facility may consider the de minimis exemption from TRI reporting as part of its use or further distribution of the PFAS.
Q: For TRI reporting purposes, are the 172 PFAS that were immediately added by the NDAA categorized as “chemicals of special concern”?
A: No. In adding these PFAS to the TRI list, the NDAA does not state that these PFAS are “chemicals of special concern” (40 CFR § 372.28 is where EPA lists TRI chemicals of special concern). In considering TRI reporting requirements for a TRI-listed chemical categorized as a chemical of special concern, certain burden-reduction opportunities are not available (i.e., de minimis exemption, Form A Certification Statement eligibility, and range reporting for certain waste management quantities below 1,000 pounds). Accordingly, a facility may make use of these burden-reduction opportunities should its management of one of these listed PFAS fit the eligibilities for any such opportunity.