Written by Jen Connelly, who works in BBJ Group's Chicago Office
Per- and polyfluoroalkyl substances (PFAS) made environmental headlines in 2019, and it appears that these synthetic chemicals will continue to be a hot topic in 2020.
On December 4, 2019, the United States Environmental Protection Agency (EPA) published an Advanced Notice of Proposed Rulemaking to gather information on adding certain PFAS to the Toxic Release Inventory (TRI) under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The EPA recently completed its 60-day public comment period seeking information on what, if any, PFAS should be added to the list of toxic chemicals, how to list them, and proposed acceptable threshold limits for reporting. As part of this process, the EPA was contemplating whether the threshold should be lower than the typical statutory threshold of 25,000 pounds for manufacturing or processing and 10,000 pounds for otherwise using listed chemicals.
The National Defense Authorization Act for Fiscal Year 2020 (NDAA) was signed into law on December 20, 2019. Section 7321 of the NDAA identified 14 chemicals that would be added to the list of toxic chemicals in EPCRA as of January 1, 2020. The NDAA also included a clause allowing additional PFAS to be added based on EPA’s review, which ultimately concluded that 170 chemicals meet the requirement for TRI addition. Of these chemicals, 12 were already accounted for in the 14 identified by the NDAA, thus bringing total TRI additions to 172. Although the EPA has concluded that 172 PFAS meet the requirements for TRI inclusion, there are nearly 600 PFAS currently manufactured and or imported into the United States, and with more research all could potentially be added to the list.
Why is a chemical added to the TRI?
EPCRA Section 313(d)(2)(A) through (C) authorizes EPA to add a chemical to the TRI if any of the following criteria are met.
- The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous or frequently recurring releases.
- The chemical is known to cause or can reasonably be anticipated to cause in humans: cancer or teratogenic effects, serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects.
- The chemical is known to cause or can be reasonably anticipated to cause, because of its toxicity, its toxicity and persistence in the environment, or its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section.
For the chemical to be added to the TRI, the EPA must be able to provide sufficient evidence that at least one of the criteria has been met by that chemical.
Now that PFAS have been added to the TRI, what does that mean for facilities?
Facilities that meet all three requirements below are required to submit an annual TRI Form R for each TRI-listed chemical.
- Facilities in specific industry sectors (e.g., manufacturing, mining, electric power generation). Note that federal facilities must report regardless of industry sector if they meet the other two criteria.
- Facilities that employ 10 or more full-time equivalent employees.
- Facilities that manufacture, processes, or otherwise use a TRI-listed chemical in quantities above threshold levels in a calendar year.
It should be noted that the PFAS research is an ongoing action, and EPA is continuing to evaluate reporting thresholds and whether other PFAS should be included. Although 2020 may see further PFAS added to the TRI list, reporting obligations for any additional chemicals will not be effective until the following calendar year.