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05.21.2024 Legal News

EPA Adds Seven PFAS Chemical Compounds to the Toxic Release Inventory

In a final rule published on May 17, 2024, and to become effective June 17, 2024, EPA has added seven per- and polyfluoroalkyl substances (PFAS) to the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). The seven PFAS newly added to the toxic release inventory (TRI) are:

  1. Perfluorohexanoic acid (PFHxA)
  2. Perfluoropropanoic acid (PFPrA)
  3. Sodium perfluorohexanoate
  4. Ammonium perfluorohexanoate
  5. Trifluoro-N-[(trifluoromethyl)sulfonyl] methanesulfonamide (TFSI)
  6. Lithium bis[(trifluoromethyl)sulfonyl] azanide
  7. Betaines, dimethyl(

EPA notes that it is adding these PFAS pursuant to, and to conform its regulations with, Sections 7321(b) and 7321(c) of the National Defense Authorization Act for Fiscal Year 2020 (NDAA). Accordingly, the TRI listings for these seven PFAS are effective as of January 1, 2024, and these PFAS are subject to the 2024 reporting year with reports due July 1, 2025. Also, as with other PFAS similarly listed on the TRI, these PFAS are designated as “chemicals of special concern.” As discussed more fully below, by designating them in this manner, they are also excluded from certain reporting exemption thresholds and options that may be available for other TRI-listed chemicals. 

Relying on this statutory mandate, EPA states that the May 17 rulemaking is exempt from prior notice and an opportunity for public comment under the “good cause exception” to such process, as set forth in the federal Administrative Procedure Act. As a result, no proposed rulemaking or public comment period has occurred for the listing of these seven PFAS.

EPCRA Section 313 (which establishes the TRI), requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to PPA Section 6607. EPA first created the list of “chemicals of special concern” to increase the utility of TRI data by ensuring that the data collected and shared through TRI are relevant and topical. EPA lowered the reporting thresholds for chemicals of special concern because releases of even small quantities of these chemicals can be of concern. The first chemicals that were added to the list of chemicals of special concern were those identified as persistent, bioaccumulative and toxic (PBT) chemicals which, except for the dioxin and dioxin-like compounds category, have reporting thresholds of either 10 or 100 pounds depending on their persistent and bioaccumulative properties. Chemicals of special concern are also excluded from the de minimis exemption, may not be reported on the Form A Alternate Threshold Certification Statement, and have limits on the use of range reporting. 

The NDAA expanded the list of chemicals that require reporting under the TRI to include certain PFAS, and the list of PFAS chemicals subject to reporting has increased to over 180 compounds for reporting year 2023. Section 7321 of the NDAA identifies certain regulatory activities that automatically add PFAS or classes of PFAS to the EPCRA Section 313 list of reportable chemicals. Such addition takes effect as of January 1 of the calendar year following any of these agency actions:

  • The Administrator finalizes a toxicity value.
  • The Administrator makes a covered determination.
  • The PFAS or class of PFAS is added to a list of substances covered by a covered determination.
  • The PFAS or class of PFAS that a covered determination applies is:
    • added to the list under Section 8(b)(1) of TSCA and designated as an active chemical substance under TSCA section 8(b)(5)(A); or
    • designated an active substance under TSCA 8(b)(5)(B) on the list published under TSCA Section 8(b)(1).

(For more background information on the EPCRA Section 313 program and NDAA requirements to add PFAS to the TRI, see here).

Because EPA rendered decisions on the final toxicity values for the first six of the above-listed PFAS in 2023, they became subject to TRI listing as of January 1, 2024. Also, betaines, dimethyl initially met the criteria to be included on the TRI but was subject to a claim of protection from disclosure as trade secrets. That PFAS is also now being added to the TRI list because it was later published on the non-confidential portion of the Toxic Substance Control Act (TSCA) Inventory in 2023.

EPA identifies industries potentially affected by this action as those that manufacture, process, or otherwise use any of the PFAS listed in the May 17, 2024 rule, including without limitation the following industry groups:

  • Facilities with the following NAICS manufacturing codes (which correspond with Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327*, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 113310, 211130*, 212323*, 212390*, 488390*, 512230*, 512250*, 5131*, 516210*, 519290*, 541713*, 541715* or 811490*. (*Certain exceptions or limitations may apply, however.)
  • Facilities with the following NAICS codes (other than SIC codes 20 through 39):
    • 211130* (which corresponds with SIC code 1321, Natural Gas Liquids, and SIC 2819, Industrial Inorganic Chemicals, Not Elsewhere Classified);
    • 212114, 212115, 212220, 212230, 212290*;
    • 2211*, 221210*, 221330 (but limited to facilities that burn coal and/or oil for generating power for distribution in commerce) (which corresponds with SIC codes 4911, 4931, and 4939, Electric Utilities);
    • 424690 and 424710 (which corresponds with SIC code 5171, Petroleum Bulk Terminals and Plants);
    • 425120 (but limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified);
    • 562112 (but limited to facilities primarily engaged in solvent recovery services on a contract or fee basis) (previously classified under SIC code 7389, Business Services, NEC);
    • 562211*, 562212*, 562213*, 562219*, 562920 (but limited to facilities regulated under Subsection C of the Resource Conservation and Recovery Act, 42 U.S.C. 6921 et seq.)(which corresponds with SIC code 4953, Refuse Systems). (*Certain exceptions or limitations may apply, however).
  • Federal facilities.

Operators of facilities that are among these groups of potentially affected industries should carefully consider whether the addition of these new PFAS to the TRI list will likewise add new or more TRI recordkeeping and reporting obligations and begin preparations for meeting the 2024 reporting year obligations. Also, such operators should be mindful of the lack of applicable de minimis thresholds and other burden-lessening provisions under the TRI program due to the designation of these PFAS as “chemicals of special concern.”

“Implementing Statutory Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory Beginning With Reporting Year 2024,” 89 Fed. Reg. 43331 (May 17, 2024).