Implementing Statutory Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the TRI Beginning with Reporting Years 2021 and 2022
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EPA has updated the regulations to identify five per- and polyfluoroalkyl substances (PFAS) to the list of chemicals required to be reported to the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). This action implemented the statutory mandate in the National Defense Authorization Act for Fiscal Year 2020 (FY 2020 NDAA) enacted on December 20, 2019. As this action was taken to conform the regulations to a Congressional legislative mandate, notice and comment rulemaking was unnecessary.
The additions of four PFAS are effective for the 2022 reporting year, for TRI reporting forms due July 1, 2023. The addition of one PFAS is effective for the 2021 reporting year, for TRI reporting forms due July 1, 2022.
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.
On December 20, 2019, the NDAA was signed into law (PL 116-92). Among other provisions, section 7321(c) identifies certain regulatory activities that automatically add PFAS or classes of PFAS to the TRI list of reportable chemicals. Specifically, PFAS or classes of PFAS are added to the TRI list of reportable chemicals beginning January 1 of the calendar year after any one of the following dates:
- Final Toxicity Value: The date on which the Administrator finalizes a toxicity value for the PFAS or class of PFAS;
- Significant New Use Rule: The date on which the Administrator makes a covered determination for the PFAS or class of PFAS;
- Addition to Existing Significant New Use Rule: The date on which the PFAS or class of PFAS is added to a list of substances covered by a covered determination;
- Addition as an Active Chemical Substance: The date on which 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).
The FY 2020 NDAA defines ‘‘covered determination’’ as a determination made by rule under TSCA section 5(a)(2) that a use of a PFAS or class of PFAS is a significant new use (except such a determination made in connection with a determination described in TSCA sections 5(a)(3)(B) or 5(a)(3)(C)). EPA has reviewed the above-listed criteria and found five chemicals that meet the requirements of this part of the FY 2020 NDAA and whose identity is not confidential business information (CBI).
As established by the FY2020 NDAA, the addition of these PFAS is effective January 1 of the calendar year following any of the dates identified in FY 2020 NDAA section 7321(c)(1)(A). Accordingly, four non-CBI PFAS are reportable for the 2022 reporting year (i.e., reporting forms due July 1, 2023). One non-CBI PFAS is reportable for the 2021 reporting year (i.e., reporting forms due July 1, 2022). EPA is issuing this final rule to amend the EPCRA Section 313 list of reportable chemicals in 40 CFR 372.65 to include the five non-CBI PFAS identified pursuant to the FY2020 NDAA.