The U.S. Environmental Protection Agency (EPA) finalized a rule on reporting on per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI).
The new rule eliminates an exemption that allowed facilities to avoid reporting information on PFAS when those chemicals were used in small concentrations.
The PFAS reporting rule may apply to finishers and coaters, says Ethan Ware, an attorney at Williams Mullen in Columbia, South Carolina, who is an expert on EPA issues regarding the finishing industry.
“The rule applies to any company that manufactured or imported any chemical substances or ‘articles’ containing PFAS components since 2011,” Ware says. “The company may be in any business as long as they manufactured (which includes importing) a PFAS chemical substance.”
Ware says the company must "reasonably ascertain” whether their imported products and manufactured substances contained PFAS during the reporting lookback period.
“Many electroplaters may have imported coatings such as surface finishing chemicals and greases/oils that contained PFAS,” Ware says.
From the EPA:
Often referred to as “forever chemicals,” PFAS are used at low concentrations in many products, and as a result of removing this reporting exemption, covered industry sectors such as manufacturing, metal mining, and chemical manufacturing — as well as federal facilities that make or use any of the 189 TRI-listed PFAS — will no longer be able to avoid disclosing the quantities of PFAS they manage or release into the environment.
Michal Freedhoff“People deserve to know if they’re being exposed to PFAS through the air they breathe, the water they drink, or while they’re on the job,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff. “Under this new rule, EPA will receive more comprehensive data on PFAS and looks forward to sharing that data with our partners and the public.”
TRI data is reported to the EPA annually by facilities in industry sectors such as manufacturing, metal mining, electric power generation, chemical manufacturing, and hazardous waste treatment, as well as federal facilities that manufacture, process, or otherwise use notable quantities of TRI-listed chemicals. See the list at https://www.epa.gov/toxics-release-inventory-tri-program/tri-listed-chemicals.
The data include quantities of chemicals that were released into the environment or otherwise managed as waste. Information collected through TRI allows communities to learn how facilities in their area are managing listed chemicals. The data collected also helps support informed decision-making by companies, government agencies, non-governmental organizations, and the public. Among the updated online TRI tools, communities can use EPA’s TRI Toxics Tracker to map the locations of TRI-reporting facilities and find out about their chemical releases, other chemical waste management practices, and pollution prevention activities.
The 2020 National Defense Authorization Act (NDAA) initially added 172 PFAS to the list of chemicals covered by TRI for the 2021 reporting year and provided a framework to automatically add other PFAS in future years. The NDAA also required facilities to report on those chemicals if they manufacture, process, or otherwise use more than 100 pounds of the substance, which is lower than the reporting threshold for most other TRI-listed chemicals. However, the previous Administration codified the NDAA provisions in a manner that did not address the availability of the de-minimis exemption or other burden reduction provisions to the reporting requirement that allowed facilities that report to TRI to disregard and avoid reporting on minimal concentrations of PFAS chemicals.
By designating PFAS as “chemicals of special concern” for TRI-reporting purposes, this rule eliminates the availability of that exemption for TRI-listed PFAS and requires facilities to report on PFAS regardless of their concentration in mixtures since many PFAS are used in low concentrations in mixtures, and the continued availability of the exemption for PFAS would permit facilities to discount those uses when determining their TRI reporting responsibilities. The rule also makes the previous exemption unavailable for purposes of supplier notification requirements to downstream facilities for all chemicals on the list of chemicals of special concern, which also includes additional chemicals that, like PFAS, remain in the environment for long periods of time and build up in the body like lead, mercury, and dioxins. This change helps ensure that purchasers of mixtures and trade name products containing these chemicals are informed of their presence in mixtures and products they purchase.
The public can view supporting materials in the docket once the rule is published in the Federal Register at https://www.epa.gov/toxics-release-inventory-tri-program/changes-tri-reporting-requirements-and-polyfluoroalkyl.
