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EPA Proposes More Stringent Reporting of PFAS Data to the Toxics Release Inventory

The EPA has proposed changes that would eliminate a reporting exemption for PFAS used in de minimis concentrations.

On December 5, 2022, the Environmental Protection Agency ("EPA") proposed a new rule that would increase reporting obligations for per- and polyfluoroalkyl substances ("PFAS") to the Toxics Release Inventory ("TRI"). PFAS are synthetic chemicals with wide commercial and industrial applications, including firefighting foams, greaseproof food wrapping, nonstick cookware, water-repellent fabrics, carpets, and textiles. The 2020 National Defense Authorization Act added certain PFAS to the list of chemicals covered by TRI, with a framework to add additional PFAS in subsequent years. The use reporting thresholds for these substances is 100 pounds. However, facilities and suppliers were exempted from reporting small, or de minimis, concentrations of PFAS chemicals in mixtures or trade name products when the concentration was below certain thresholds, typically 1% but 0.1% for perfluorooctanoic acid ("PFOA"). 

EPA proposes to add PFAS to the list of Lower Thresholds for Chemicals of Special Concern, eliminating burden-reduction reporting options for TRI-reporting facilities. EPA seeks to include PFAS in this list over concerns that, due to the persistent nature of PFAS in the environment, insufficient evidence is being collected to effectively analyze the risk from releases and waste management. Designation of PFAS as Chemicals of Special Concern would eliminate the availability of the de minimis exemption and require facilities and suppliers to report on the 180 listed PFAS, regardless of concentration. Practically, EPA anticipates an increase in Form R reporting, as Chemicals of Special Concern may not be reported on the more streamlined Form A. Form R requires information on releases, waste management, and source reduction. Additionally, designation as Chemicals of Special Concern would limit the use of range reporting. 

This proposed rule follows a recent pattern of regulatory action on PFAS from EPA pursuant to its PFAS Strategic Roadmap, including designation of PFOA and perfluorooctanesulfonic acid, or PFOS, as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act earlier this year. As PFAS is widely used in a variety of mixtures and trade name products, this proposed rule would substantially increase administrative burden on TRI reporters. 

The EPA is accepting public comments on this proposed rule until February 23, 2023.

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