The Implications on EPCRA Reporting
The National Defense Authorization Act for Fiscal Year 2020 (NDAA) required that the U.S. Environmental Protection Agency (EPA) add certain poly- and perfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI). EPA’s final rule adding these PFAS to the TRI toxic chemicals list took effect on June 22, 2020. This marks the implementation of another important facet of EPA’s February 2019 PFAS Action Plan, which announced the agency’s intent to address the human health and economic impacts from PFAS in the environment.
Under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), certain U.S. facilities must submit annual reports regarding toxic chemicals that they “manufacture, process, or otherwise use.” The Form R report, as it is called, specifies the quantity of the chemical that the facility released into the environment or managed through recycling, energy recovery and treatment. The TRI reporting requirement is triggered based on the facility’s North American Industrial Classification System (NAICS) code and the threshold reporting amount for the chemical in question. EPA’s final rule incorporates the NDAA provision regarding a blanket 100-pound reporting threshold for each of the 172 newly listed PFAS chemicals. This threshold is significantly lower than the usual thresholds of 25,000 pounds for manufacturing and processing and 10,000 pounds for “otherwise using,” and reflects governmental recognition of potential health and environmental risks posed by PFAS.
The immediate consequence of the new rulemaking is that companies that meet the TRI reporting thresholds will have to account for the newly added PFAS chemicals in Form R reports for calendar year 2020. These reports are due on July 1, 2021. This will place an immediate burden on companies. Given the wide-ranging uses and applications of PFAS, companies that operate under the relevant NAICS codes will have to consult sales records, safety data sheets, product specifications for “articles” (manufactured items, including wire, parts and equipment), and other sources of information to determine whether they must report for the newly added chemicals or can invoke an exemption. In instances where the precise PFAS content is not given, companies will have to make their own measurements, which may prove problematic, given that analytical methods for analyzing PFAS content are still under development.
Heightened Litigation and Enforcement Risks
The TRI is publicly accessible and therefore is an important tool for providing the public with information about potential exposure to toxic chemicals due to business operations. TRI information helps support decision-making by companies, governmental agencies, non-governmental organizations and the public. Thus, both governmental authorities and potential claimants may use the information to initiate legal action against companies that manufactured, processed or otherwise used PFAS in the 2020 reporting period.
In this vein, several environmental advocacy groups have or are in the process of establishing databases of companies that are known to have used or disposed of PFAS. For example, the Environmental Working Group (EWG) has developed an interactive map of 1,582 sites known or suspected to have PFAS contamination across forty-nine states. Such efforts stand to facilitate PFAS-related claims by governmental regulators and others.
More PFAS Substances to be Listed
The number of PFAS subject to TRI reporting will continue to grow. EPA is still processing confidential business information (CBI) claims for some of the PFAS identified by the NDAA, and these PFAS will be added to the TRI once the CBI review process is complete. Further, the NDAA requires that EPA add new PFAS whenever it finalizes a toxicity value for PFAS substance, finalizes a Significant New Use Rule under TSCA for a PFAS chemical, adds a PFAS chemical to an existing SNUR, or designates a PFAS chemical as active in commerce on the TSCA inventory. EPA proposed a SNUR in February 2020 for long-chain PFAS that are part of surface coatings on articles. Under the NDAA, EPA will be required to add these long-chain PFAS to the TRI list once the SNUR is finalized.