Today, as a follow up to a January 2022 announcement, the U.S. Environmental Protection Agency (EPA) is issuing a final rule to update the Toxics Release Inventory (TRI) chemical list to identify five additional PFAS subject to reporting requirements.
The Fiscal Year 2020 National Defense Authorization Act (NDAA) provides the framework for the addition of PFAS to the TRI each year. As previously announced, for TRI Reporting Year 2022 (reporting forms due by July 1, 2023), reporting is required for four additional PFAS. Today’s final rule officially incorporates these requirements into the Code of Federal Regulations (CFR) for TRI. Additionally, this TRI update provides a conforming edit to the CFR to include a PFAS that met TRI listing requirements under the NDAA as of Reporting Year 2021.
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.
Addition of three PFAS with final toxicity values
The 2020 NDAA includes a provision that automatically adds PFAS to the TRI list upon the agency’s finalization of a toxicity value. In April 2021, EPA finalized a toxicity value for the following three chemicals and therefore they were added to the TRI.
Perfluorobutane sulfonic acid also known as PFBS (Chemical Abstracts Service Registry Number (CASRN) 375-73-5)
Perfluorobutanesulfonate (CASRN 45187-15-3)
Potassium perfluorobutane sulfonate (29420-49-3)
Reporting forms for these three PFAS will be due to EPA by July 1, 2023, for calendar year 2022 data.
Addition of one PFAS no longer claimed as confidential business information
Under NDAA section 7321(e), EPA must review confidential business information (CBI) claims before adding a PFAS to the TRI list if the chemical 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. However, due to a CBI claim related to its identity this PFAS was not added to the TRI list at that time. The identity of this PFAS was subsequently published in an update to the TSCA Inventory in October 2021 because at least one manufacturer did not claim it as confidential during prior reporting under the Chemical Data Reporting (CDR) rule. Because it was no longer confidential, it was added to the TRI list.
Reporting forms for this PFAS will be due to EPA by July 1, 2023, for calendar year 2022 data.
Addition of one PFAS subject to a significant new use rule
The NDAA identifies certain regulatory activities, such as being subject to a significant new use rule (SNUR), that automatically add PFAS or classes of PFAS to the TRI beginning January 1 the following year. Last year, EPA updated the CFR with three PFAS that were added to the TRI on January 1, 2021, pursuant to section 7321(c) of the NDAA, due to their addition to an existing SNUR under the Toxic Substances Control Act. EPA has since determined that one additional PFAS, CASRN 65104-45-2, was designated as “active” on the TSCA Inventory and was added to the SNUR in 2020. Because this chemical met the structural definition in the rule and was designated “active,” it triggered automatic addition to TRI under the NDAA, effective January 1, 2021.
The first reporting forms for this PFAS, which met NDAA conditions as of January 1, 2021, were due to EPA by July 1, 2022, for calendar year 2021 data.