New federal reporting requirements for per- and polyfluoroalkyl substances (PFAS) went into effect on January 1, 2020. The National Defense Authorization Act for FY 2020 (NDAA), signed into law on December 20, 2019, required EPA to add certain PFAS to the federal Toxics Release Inventory (TRI) list of reportable chemicals.

The NDAA identified fourteen specific PFAS chemicals for addition to the TRI list, and directed EPA to add other substances that met two criteria: (1) they were subject to a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) on or before December 20, 2019, and (2) they were identified as active in commerce on the TSCA Inventory that was published in February 2019. Among the new additions are some of the best-known and most-studied substances, including PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonate), and GenX chemicals (including hexafluoropropylene oxide dimer acid).

The addition of 160 chemicals subject to TRI reporting represents a significant increase in the total number of TRI listed chemicals, which previously numbered around 600, none of which were within the PFAS family. The number of PFAS added to the list is expected to increase in coming months as EPA continues with an ongoing rulemaking (previously discussed here) addressing proposed PFAS additions to the TRI list announced on December 4, 2019. Additional PFAS that are subject to confidentiality claims may be added after EPA goes through a review process.

The NDAA adopts a uniform threshold of 100 pounds for each of the listed PFAS, a level that could impact a large number of facilities. Facilities with ten or more employees in industry sectors covered by the TRI (including mining, utilities, and manufacturing) must now report releases of the listed PFAS if they use, manufacture, or process more than 100 pounds of any of the 160 substances in a year. As a result, affected facilities must begin tracking and collecting data on these chemicals in 2020. Reporting on these chemicals used, manufactured, or processed in 2020 will be due by July 1, 2021. Note that failure to submit timely reports for TRI-regulated chemicals can result in the imposition of significant civil penalties.

As a reminder, third-party plaintiffs often use companies’ TRI reports to support toxic tort claims and, with the amount of national attention PFAS have garnered, companies should expect that PFAS releases reported as part of 2020 TRI reports will be flyspecked by both private plaintiffs and regulators seeking to understand the sources and scope of PFAS releases associated with various industries.

Whether and how Congress would address PFAS in the NDAA was a central question as Congress was hammering out the details of the bill late last year. Several provisions that would have raised the profile of these emerging contaminants were ultimately omitted from the bill, including requirements for drinking water standards and hazardous substance designations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). Nevertheless, PFAS remains a focus of public attention, and these and similar proposals are likely to reemerge, either at the federal level or in the ongoing expansion of state regulation. Requiring TRI reporting for PFAS was just one of the goals set forth in the PFAS Action Plan released by EPA in February 2029, discussed in detail here.

The complete list of PFAS subject to TRI reporting requirements as of January 1, 2020 is available here.