Category: PFAS

As part of the comprehensive Strategic Roadmap to confront the human health and environmental risks of PFAS, the U.S. Environmental Protection Agency (EPA) announced yesterday the automatic addition of four per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) list.

TRI data are reported to EPA annually by facilities in certain industry sectors, including federal facilities, that manufacture, process, or otherwise use TRI-listed chemicals above certain quantities. The data include quantities of such chemicals that were released into the environment or otherwise managed as waste. Information collected through the TRI allows communities to learn how facilities in their area are managing listed chemicals. The data collected also help inform EPA’s efforts to better understand the listed substances.

“We will use every tool in our toolbox to protect our communities from PFAS pollution,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff. “Requiring companies to report on how these PFAS are being managed, recycled, or released is an important part of EPA’s comprehensive plan to fill critical data gaps for these chemicals and take meaningful action to safeguard communities from PFAS.”

The Fiscal Year 2020 National Defense Authorization Act (NDAA) provides the framework for adding additional PFAS to the TRI each year. For TRI Reporting Year 2022 (reporting forms due by July 1, 2023), reporting is required for four additional PFAS.

Among other provisions, section 7321(c) of the NDAA identifies certain regulatory activities that automatically add PFAS or classes of PFAS to the TRI beginning January 1 the following year, and the agency’s finalization of a toxicity value is one of the triggering actions.

In April 2021, EPA finalized a toxicity value for perfluorobutane sulfonic acid (PFBS) (Chemical Abstracts Service registry number (CASRN) 375-73-5) and potassium perfluorobutane sulfonate (CASRN 29420-49-3); therefore, these substances have been added to TRI. PFBS-based compounds are replacement chemicals for PFOS, a chemical that was voluntarily phased out by the primary U.S. manufacturer by 2002. PFBS has been identified in the environment and consumer products, including surface water, wastewater, drinking water, dust, carpeting and carpet cleaners, and floor wax.

EPA previously updated the Code of Federal Regulations with PFAS that were added to the TRI on January 1, 2021, pursuant to section 7321(c) of the NDAA and their being regulated by an existing significant new use rule (SNUR) under the Toxic Substances Control Act (see 40 CFR 721.10536). EPA has since determined that one additional PFAS, CASRN 65104-45-2, is designated as “active” on the TSCA Inventory and is covered by the SNUR. Therefore, this substance has also been added to the TRI pursuant to the NDAA.

Additionally, under NDAA section 7321(e), EPA must review CBI claims before adding any PFAS to the TRI list whose identity is subject to a claim of protection from disclosure under 5 U.S.C. 552(a). EPA previously identified one PFAS, CASRN 203743-03-7, for addition to the TRI list based on the NDAA’s provision to include certain PFAS upon the NDAA’s enactment (section 7321(b)(1)); however, due to a confidential business information (CBI) claim related to its identity this PFAS was not included on the TRI list until EPA completed its review of the CBI claim. This PFAS was included in updates to the confidential status of chemicals on the TSCA Inventory published by EPA in October 2021, and thus was added to the TRI list due to the CBI declassification.

As of January 1, 2022, facilities which are subject to reporting requirements for these chemicals should start tracking their activities involving these PFAS as required by Section 313 of the Emergency Planning and Community Right-to-Know Act. Reporting forms for these PFAS will be due to EPA by July 1, 2023, for calendar year 2022 data.

EPA continues to act on Administrator Regan’s PFAS Strategic Roadmap, announced in October 2021, a plan that delivers on the agency’s mission to protect public health and the environment and answers the call for action on these persistent and dangerous chemicals. In addition to continuing to add PFAS to the TRI, EPA also will soon announce a series of PFAS test orders that will require PFAS manufacturers to provide the agency with toxicity data and information on PFAS.

Read the full story at JD Supra.

On January 10, 2022, U.S. EPA forwarded to the White House Office of Management and Budget (OMB) a proposed rule that seeks to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  Although not unexpected since this was of the key elements of U.S. EPA’s PFAS Strategic Roadmap, U.S. EPA’s proposed rule is unique in that it represents one of the first times that U.S. EPA has by rule sought to designate a chemical as a CERCLA hazardous substance.  U.S. EPA’s actions in sending the proposed rule to OMB may also be foreshadowing for a similar effort to designate PFOA and PFOS as “hazardous wastes” under the Resource Conservation and Recovery Act (RCRA) which would subject these substances to RCRA’s cradle to grave regulatory scheme.