In our March Environmental Compliance Tip, we shared that reporting of per- and polyfluoroalkyl substances (PFAS) under the Toxics Release Inventory (TRI) is required for the 2020 reporting year (in July 1, 2021).  That means this year, 2020, is when you should start tracking PFAS data for purposes of reporting next year.

Background

This requirement for reporting PFAS can be found in Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA).  The NDAA was signed into law on December 20, 2019.  Specifically, the new requirement adds 172 PFAS chemicals to the list of chemicals covered by the TRI under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

Specifics for PFAS Reporting Under TRI

Much of the information below is from a blog from the law firm of Winston and Strawn and from the Environmental Protection Agency (EPA) document List of PFAS Added to the TRI by the NDAA.

  • For determining threshold requirements, the EPA advises that safety data sheets (SDS) should be considered a primary source of information. Suppliers of mixtures or trade-name products are required to provide written notification to covered facilities of TRI-regulated products under 40 CFR Part 372.45. The regulatory information section of the SDS should contain data on the regulated constituents.
  • The EPA did not classify the 172 PFAS as persistent bioaccumulative toxic (PBT) compounds. Therefore, very low concentrations of PFAS may be eligible for the de minimis.  According to the EPA, “The de minimis level for Perfluorooctanoic acid (PFOA) (CASRN: 335-67-1) is 0.1%.  All of the other PFAS additions have a de minimis level of 1%.”
  • The EPA clarified that the 100-pound threshold applies for each individual PFAS and not to the class of PFAS chemicals as a whole.
  • The EPA made a preliminary determination that aqueous film-forming foams (AFFF) containing PFAS, which are maintained by facilities for use in fire-suppression systems, would not require TRI reporting until the system is actually used in training or emergency action. Storage of AFFF on site as part of a fire-suppression system would not require reporting under the TRI.  The EPA indicated that they would internally verify this interpretation for regulated facilities and offer a final determination at a later date.
PFAS reporting requirements under TRI

The new requirement adds 172 PFAS chemicals to the list of chemicals covered by the TRI under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

Reporting Requirements Under COVID-19 Restrictions

Finally, to the best of our knowledge at the time of this writing, the EPA has not delayed TRI reporting requirements for this year.  In fact, in an environmental regulatory alert we recently sent, we shared that the EPA issued a strongly- worded memo stating the agency’s enforcement policies.  This memo by the EPA was prompted by misinformation that was published by some news outlets regarding the EPA’s “relaxation” of enforcement policies.

If you would like additional information regarding PFAS, please see our PFAS Resources Page.  Questions regarding PFAS, including assessment, remediation, reporting requirements, or litigation support, should be directed to Matthew Schroeder, M.S., P.E.

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