Today, the EPA issued a final rule adding five PFAS to the list of PFAS chemicals subject to the Toxics Release Inventory (TRI) reporting requirements. The total PFAS subject to the TRI now exceeds 170 separate PFAS. TRI reporting is an issue that has recently seen significant attention by environmentalists who claim that the EPA has not added enough PFAS to the TRI, and that there are too many loopholes in the reporting requirements for the PFAS that are on the list. The EPA’s actions today continue to broaden the impact on industry to comply with the significant reporting obligations. For any company that manufactures, imports, or utilizes PFAS, it is critical to pay attention to these developments, as well as take a forward-looking compliance assessment approach to likely future expansion of the PFAS TRI reporting requirements.
Today’s PFAS TRI Reporting Notice
The final rule, published in the July 18 Federal Register, adds five PFAS to the TRI reporting requirement. The fiscal year 2020 National Defense Authorization Act (NDAA) added 172 PFAS to the TRI, but as we previously reported, it also requires that any PFAS with a final toxicity value, subject to a SNUR, or added to the TSCA inventory be added to the TRI. Typically, additions to TRI require a notice and comment period, but in the EPA’s comments in the Federal Register, it specifically notes that it is using the “good cause” exception to forgo the notice and comment period on the rule. “Good cause” in this instance is that the NDAA mandates the addition of PFAS to the TRI.
Any company that uses 100 pounds or more of any of the PFAS on the TRI must report releases of the PFAS to the EPA. In addition, the companies are required to provide reporting to the EPA on the PFAS disposal or recycling.
Today’s action does not address a PFAS issue that the EPA has received considerable criticism over – the de minimus reporting threshold for PFAS. Certain interest groups have applied pressure to the EPA to do away with the exemption, which they argue allows companies to underreport their use of PFAS.
Impact On Businesses
While today’s PFAS TRI reporting expansion does not add a significant number of PFAS to the TRI, it nevertheless continues the EPA’s trend of added increasing numbers of PFAS to the TRI. The goal of the EPA is to obtain as much data as possible regarding use, discharge, and disposal of the listed PFAS as possible so that it can understand use and pollution risks of the PFAS. Businesses utilizing any of the PFAS on the TRI must undertake every step necessary to comply with the reporting requirements set forth under the TRI. Companies utilizing PFAS not yet on the TRI must look to the future and prepare now for the possibility that additional PFAS will be added to the TRI, thereby increasing the company’s reporting burdens and increasing the risk for potential lawsuits by citizens, interest groups, or regulatory agencies for pollution.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.