EPA Proposing to Expand Toxic Release Inventory Reporting Relating to PFAS
Since late 2019, EPA has successfully added certain perfluoroalkyl substances (PFAS) to the toxic release inventory (TRI) list of chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). On October 8, 2024, EPA published a proposed rule to add sixteen (16) additional named PFAS and fifteen (15) PFAS categories to the TRI list (“Proposed Rule”). The comment period ended December 9, 2024.
What is EPCRA TRI Reporting and why PFAS?
EPCRA requires certain manufacturers, processors, or users of listed toxic chemicals in amounts above specific reporting thresholds to annually report the amount of the applicable chemical released by the facility to the environment and how the facility manages any related chemical waste streams. To add a chemical to the TRI list, EPA must determine that the applicable chemical is known to cause or can reasonably be anticipated to cause:
- significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous or frequently recurring releases; or
- cancer or teratogenic effects, serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects in humans; or
- a significant adverse effect on the environment of sufficient seriousness because of its toxicity, its toxicity and persistence in the environment, or its toxicity and tendency to bioaccumulate in the environment.
EPA has added numerous chemicals to the TRI list since EPCRA was first passed in 1986 and in 2020, Congress enacted the National Defense Authorization Act for Fiscal Year 2020 (NDAA FY2020) requiring TRI listing of certain PFAS if they fall under one of three categories: (1) immediate inclusion, (2) inclusion following toxicity value finalization or covered by/added to SNUR; and/or (3) EPA two-year applicability determination.
First, the NDAA FY2020 required “immediate inclusion” in the TRI inventory the following PFAS with a reporting threshold of 100 pounds: (1) perfluorooctanoic acid (PFOA) and related salts, (2) perfluorooctane sulfonic acid (PFOS) and related salts, (3) any PFAS substance or class of PFAS substances listed as an active chemical substance in the 2019 Toxic Substances Control Action inventory and already regulated under the significant new use regulations (SNUR), (4) hexafluoropropylene oxide dimer acid (GenX), (5) perfluorononanoic acid (PFNA), and (6) perfluorohexanesulfonic acid (PFHxS).
Secondly, the NDAA FY2020 allowed “inclusion following assessment” of any PFAS for which EPA finalizes a toxicity value or for which EPA determines it is covered by or added to the SNUR.
Lastly, the NDAA FY2020 requires EPA to:
- Within two years, determine for TRI listing any PFAS not specifically listed for “immediate inclusion” above, including a list of thirteen (13) specific listed PFAS and two (2) PFAS categories (PFAS for which EPA has validated a drinking water test method and PFAS used to manufacture fluorinated polymers); and
- Within two years of the determination described above, revise the TRI to add the applicable chemicals.
What Chemicals and Categories is EPA proposing to Add and Why?
The proposed rule applies only to those PFAS for which EPA finalized a toxicity value or otherwise made a positive two-year applicability determination. It does not add those PFAS or PFAS categories added automatically on January 1 of each year as covered by a SNUR.
In the proposed rule, EPA determined that there are thirty-nine (39) PFAS chemicals that Congress directly asked EPA to consider for listing. Of those 39, EPA determined thirteen (13) had already been added by Congress, seventeen (17) are not yet ready to be proposed for listing based on available data, and nine (9) are ready for listing. EPA also added seven (7) additional PFAS and fifteen (15) PFAS categories because it interpreted Congress’ use of the word “including” in the Act as an open invitation to add any that meet the EPCRA TRI applicability criteria.
Finally, EPA concluded that the PFAS proposed for addition can either reasonably be anticipated to cause adverse chronic human health effects at moderately low to low exposure doses and/or environmental effects at low concentrations or have moderately high to high human health toxicity and/or are highly toxic to aquatic organisms. EPA did not perform exposure considerations for those PFAS considered for listing due to chronic health effects or effects on the environment as EPA believes EPCRA only requires exposure assessments for those proposed for listing due to acute human health effects. None of the proposed PFAS or PFAS categories in the proposed rule are being listed for a finding of acute human health effects.
The proposed list includes the following:
16 PFAS:
- Broflanilide;
- 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4-nonafluoro-N-methyl- (MeFBSA)
- 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4-nonafluoro-N-(2-hydroxyethyl)-N-methyl- (MeFBSE)
- Cyclopentene, 1,3,3,4,4,5,5-heptafluoro- (HFCPE)
- Ethanesulfonamide, 1,1,2,2,2-pentafluoro-N-[(pentafluoroethyl) sulfonyl]-, lithium salt;
- 6:2 Fluorotelomer alcohol (6:2 FTOH))
- Fulvestrant (CASRN 129453-61-8)
- Hexaflumuron
- Pentane, 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-(trifluoromethyl)
- Perfluorotridecanoic acid (PFTrDA)
- 2-Propenoic acid, 2[methyl [(nonafluorobutyl)sulfonyl]amino]ethyl ester (MeFBSEA)
- Pyrifluquinazon
- Tetraconazole
- Triethoxy(3,3,4,4,5,5,6,6,7,7,8,8,8-tri-deca-fluorooctyl)silane
- Trifluoro(trifluoromethyl) oxirane (HFPO)
- Perfluoro(2-ethoxy-2-fluroethoxy)acetic acid ammonium salt (Chemical Abstracts Service No. 908020–52–0)
15 PFAS Categories:
- 9-Chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9Cl-PF3ONS), Salts, and Sulfonyl Halides Category;
- 11-Chloroeicosafluoro-3-oxaundecane-1-sulfonic acid (11Cl-Pf3OUdS);
- Hexafluoropropylene oxide dimer acid (HFPO-DA, GenX), Salts, and Acyl Halides Category;
- Perfluorobutanesulfonic acid (PFBS), Salts, Sulfonyl Halides, and Anhydride Category;
- Perfluorobutanoic acid (PFBA), Salts, Acyl Halides, and Anhydride Category;
- Perfluorodecanoic acid (PFDA), Salts, Acyl Halides, and Anhydride Category;
- Perfluorododecanoic acid (PFDoA), Salts, Acyl Halides, and Anhydride Category;
- Perfluorohexanesulfonic acid (PFHxS), Salts, Sulfonyl Halides, and Anhydride Category;
- Perfluorohexanoic acid (PFHxA), Salts, Acyl Halides, and Anhydride Category;
- Perfluorononanoic acid (PFNA), Salts, Acyl Halides, and Anhydride Category;
- 1H,1 H, 2 H, 2 H-Perfluorooctane sulfonic acid (6:2 FTS), Salts, and Sulfonyl Halides Category;
- Perfluorooctanoic acid (PFOA), Salts, Acyl Halides, and Anhydride Category;
- Perfluorooctanesulfonic acid (PFOS), Salts, Sulfonyl Halides, and Anhydride Category;
- Perfluoropropanoic acid (PFPrA), Salts, Acyl Halides, and Anhydride Category; and
- Perfluoroundecanoic acid (PFUnA), Salts, Acyl Halides, and Anhydride Category.
Who will be affected by the proposed rule?
EPA estimates the proposed rule, if adopted, will result in an additional 356 to 1,110 TRI reporting forms filed annually by affected facilities. Any facility that manufactures, processes, or uses any of the PFAS of PFAS categories listed in this rule may be affected.
What does this mean to me?
EPA requested comments on the rule. Some of the types of comments EPA requested include:
- The appropriateness of the definition of PFAS EPA applied to this rule;
- The appropriateness of EPA’s use of certain databases (such as ECOTOX and EPA HAWC) as “final” toxicity determinations for the purpose of this rule;
- What is required of EPA to determine if a chemical has chronic health effects or significant adverse effects of the environment;
- How EPA came up with categories verses specific chemical listings and whether those categories are appropriate and/or should be expanded;
- Whether it is appropriate for EPA to require reporting for the aggregate weights of releases from all constituents in a category or to report the weights of just the parent;
- Whether EPA has missed any PFAS that it should have included; and
- Whether the 100-pound threshold is appropriate for this listing and future PFAS listing thresholds.
If you are potentially affected by this proposed rule or believe you will be affected by future proposed rules adding additional PFAS of PFAS categories to the TRI List, you should continue to monitor this rulemaking and any additional regulatory actions that may be undertaken by EPA.
89 Fed. Reg. 81776 (October 8, 2024)
EPA Docket No.: EPA-HQ-OPPT-2023-0538
40 CFR Part 372
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