Annual reporting requirements for chemicals included in the Toxic Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) will be substantially expanded to include 172 per- and polyfluoroalkyl substances (PFAS). While this requirement is likely to impact a relatively small number of industrial facilities involved in the manufacture or use of PFAS, it represents a growing trend to monitor for and address PFAS in drinking water supplies, as part of remedial investigations, and in manufacturing settings. This summary provides an overview of the TRI changes and will assist the regulated community in determining if an additional evaluation of the specific chemical inventory at your facility may be warranted.
PFAS are included in a group of chemicals used in home and personal, industrial, agricultural, military, and commercial products, including firefighting foam, stain or water-repellant fabric coatings, and non-stick cookware. These chemicals are persistent and extremely resistant to degradation in the environment, properties that make them well suited for their intended uses. Although several PFAS chemicals, such as perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate acid (PFOS), have been phased out by industry either voluntarily or at the direction of regulatory agencies, many PFAS are still actively used. Since 2000, the United States Environmental Protection Agency (EPA) has reviewed hundreds of new PFAS chemicals. In many cases, the agency used its authority under the Toxic Substances Control Act (TSCA) to impose restrictions on these substances. EPA has a PFAS Action Plan which establishes the steps being taken to address PFAS and protect public health. Related to this PFAS Action Plan, in June 2020, EPA issued a final rule allowing it to prohibit companies from manufacturing, processing, or importing products containing certain long-chain PFAS, which persist in the environment and can cause adverse health effects, without prior EPA review and approval.
Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) was signed into law on December 20, 2019, adding certain PFAS to the EPCRA Section 313 list of reportable toxic chemicals for the first time. The NDAA established a reporting threshold of 100 pounds for each of the listed PFAS that a company manufactures, processes, or otherwise uses during the 2020 reporting year. TRI reporting for PFAS for reporting year 2020 is due by July 1, 2021.
A searchable table of the TRI-listed PFAS can be found here.
The threshold quantity for the newly added PFAS is 100 pounds of any single compound, for the entire site, over the calendar year. Reporting is required if the threshold quantity for “manufacturing, processing, or otherwise use” of the compound is exceeded. As with all listed chemicals, the threshold quantity of any listed PFAS is determined by:
- Evaluating if materials manufactured, processed, or otherwise used contain PFAS
- Reasonably estimating the concentration of PFAS in mixtures
- Including the storage of an EPCRA Section 313 chemical if the facility exceeds the threshold for the same toxic chemical elsewhere in the facility
- Evaluating any waste received from an off-site source for further waste management (this is considered “otherwise used”)
There is a de minimis exemption in the regulation that allows covered facilities to disregard certain minimal levels of listed toxic chemicals from the reporting requirement that are included in mixtures or trade name products. The de minimis level for PFOA (CAS number 335-67-1) is 0.1 percent; all other PFAS have a de minimis level of 1 percent.
Several other exemptions exist in the regulation, including an articles exemption, janitorial/facility grounds maintenance exemption, structural component exemption, personal use exemption, and intake air and water exemption. It is important to understand whether any of these exemptions may apply to a specific facility.
Aqueous Film Forming Foams (AFFFs) for Firefighting
A major source of PFAS is related to the storage and use of PFAS-containing aqueous film forming foams (AFFFs), which are synthetic foams designed to combat flammable liquid or Class B fires. AFFFs have been widely used at military installations and airports, resulting in PFAS-impacted soils, surface water, and groundwater. The use of fire suppression systems containing AFFF for system testing, training, or to suppress a fire as part of an emergency response would fall under the “otherwise use” category of the TRI-listed chemicals, and the materials may be reportable if stored above the threshold quantities. The placement of AFFF into a fire suppression system is not an “otherwise use” activity for TRI reporting purposes until the AFFF is released from the system. The storage of AFFF is not considered a manufacturing, processing, or “otherwise use” activity; however, as noted above, if the same EPCRA Section 313 chemical is manufactured, processed, or otherwise used elsewhere at the facility, then the total stored quantities of the same chemical are cumulative, and must also be reported.
EPA expects that additional PFAS compounds will be added to the TRI list for Reporting Year 2021, with TRI reports due by July 1, 2022, as mandated by NDAA Section 7321(c), specifically for any PFAS compound where:
- EPA finalizes a toxicity value; or
- Significant New Use Rules (SNURs) are issued under TSCA, or the specific PFAS is added to certain existing SNURs; or
- It is added as an active chemical on the TSCA Inventory.
EHS Support’s compliance experts can assist you with your facility determinations and can answer any questions you may have about this update. Please reach out to Bruce Martin for:
- Questions related to threshold determinations or possible exemptions
- How to quantify and report the storage and use AFFF
- Any other PFAS related questions!