On Friday, June 23, USEPA published a final rule that will add nine new PFAS to the Toxics Release Inventory (“TRI”), the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (“EPCRA”). Facilities subject to TRI Reporting requirements that manufacture, process, or otherwise use any of the nine new TRI-listed PFAS above reportable thresholds will be required to report beginning in Reporting Year 2023 (reporting forms due by July 1, 2024). As with the existing 180 TRI-listed PFAS, the reportable thresholds for the nine new PFAS will be 100 lbs. / year.
The nine new PFAS subject to TRI Reporting beginning in RY 2023 are as follows:
- Perfluorobutanoic acid (CAS: 375–22–4)
- Sodium perfluorobutanoate (CAS: 2218–54–4)
- Potassium heptafluorobutanoate (CAS: 2966–54–3)
- Ammonium perfluorobutanoate (CAS: 10495–86–0)
- Perfluorobutanoate (CAS: 45048–62–2)
- Alcohols, C8–16, g-w-perfluoro, reaction products with 1,6-diisocyanatohexane, glycidol and stearyl alc. (CAS: 2728655–42–1)
- Acetamide, N-[3-(dimethylamino)propyl]-, 2-[(g-w-perfluoro-C4-20-alkyl)thio] derivs. (CAS: 2738952–61–7)
- Acetamide, N-(2-aminoethyl)-, 2-[(g-w-perfluoro-C4-20-alkyl)thio] derivs., polymers with N1,N1-dimethyl-1,3-propanediamine, epichlorohydrin and ethylenediamine, oxidized (CAS: 2742694–36–4)
- Acetic acid, 2-[(g-w-perfluoro-C4-20-alkyl)thio] derivs., 2-hydroxypropyl esters (CAS: 2744262–09–5).
With the addition of these nine PFAS, the list of PFAS subject to TRI Reporting Requirements will expand to 189-listed PFAS. Currently, TRI-listed PFAS can still qualify for certain burden reducing exemptions and tools, such as the de minimis reporting exemption and the simplified Form A. The de minimis reporting exemption allows facilities to disregard concentrations of TRI-listed chemicals below 1% (0.1% for carcinogens) in mixtures or other trade name products they import, process, or otherwise use in making threshold calculations and release and other waste management determinations. The simplified Form A may be used for a TRI-listed chemical that: (1) IS NOT a chemical of special concern; (2) is manufactured, processed, or otherwise used in an amount that does not exceed 1,000,000 lbs. in a year, and; (3) the total annual waste management of the chemical does not exceed 500 lbs.
EPCRA also has Supplier Notification requirements that require suppliers of products containing TRI-listed chemicals, including TRI-listed PFAS, to notify purchasers of the product. Suppliers of TRI-listed PFAS can also currently rely on the de minimis exemption for TRI-listed PFAS, meaning that in some cases suppliers may supply products that do contain TRI-listed PFAS at de minimis levels without notifying the purchaser. Thus, supplier notifications alone cannot be relied upon to disprove the presence of a TRI-listed PFAS where other indicators suggest the product may contain PFAS (i.e., the product displays non-stick properties, stain resistance, etc.).
Note, the ability of TRI-listed PFAS to qualify for these burden-reducing tools may soon change. In December 2022, USEPA proposed a rule that would eliminate the de minimis exemption for reporting TRI-listed PFAS and Supplier Notifications, and make all TRI-listed PFAS ineligible for Form A.
Facilities subject to TRI-reporting requirements must use the best readily available information (e.g., Safety Data Sheets, supplier notifications, acquisition and procurement records, existing environmental permits, process engineering records, chemical composition sheets provided by suppliers, professional knowledge) to determine whether they manufacture, process, or otherwise use TRI-listed PFAS at their facility. Therefore, USEPA’s addition of nine new PFAS to the TRI list means there are nine new PFAS that facilities need to familiarize themselves with and be vigilant about identifying in their operations.
If you have questions about reporting requirements for TRI-listed PFAS, please contact Kristin Watt (klwatt@vorys.com), Brooke Zentmeyer (bnzentmeyer@vorys.com), or your Vorys attorney.