This week, the U.S. Environmental Protection Agency (EPA) crystalized a new requirement that facilities manufacturing, processing, or otherwise using any of 172 different per- and polyfluoroalkyl substances (PFAS) submit Toxics Release Inventory (TRI) reports by July 1, 2021, for calendar year 2020. The EPA created the TRI Program in 1986 under the Emergency Planning and Community Right-to-Know Act to provide the public with information regarding releases of chemicals that the EPA has concluded may pose a threat to human health and the environment. Facilities that manufacture, process, or use listed chemicals above established threshold quantities must annually report to the EPA the amounts released or otherwise disposed.

The EPA’s move comes in the form of a final rule published in the Federal Register on June 22, 2020. What is unusual is that this final rule was not subject to a public comment period and so may come as a surprise to facilities not closely tracking regulatory developments involving PFAS. The lack of advance notice, however, is due to the fact that in adopting the final rule, the EPA responded directly to the mandate of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), signed into law in December 2019. Section 7321 of the NDAA, also part of the so-called PFAS Act of 2019, required the EPA to (1) add fourteen specific PFAS to the TRI (including the high-profile compounds PFOA, PFOS, and GenX); and (2) assess whether other PFAS meet listing criteria identified in that law and consequently should be also added to the TRI.

The EPA has now completed the required assessment and identified a total of 172 different PFAS that facilities must evaluate for TRI reporting purposes. Facilities subject to TRI include those falling under specific industry sectors identified in 40 C.F.R. § 372.23, that employ 10 or more full-time employees and that use more than the established reporting threshold of 100 pounds per each newly added PFAS in a year. TRI reports for a target year are due by July 1 of the following year, so the 2020 reports should be submitted to the EPA and the state where the facility is located by July 1, 2021. Facilities that fall under this description should inventory the chemicals they manufacture, process, or otherwise use, take note of any PFAS substances now added to TRI, and accurately track and account for the amounts they use, focusing on disposal and release, to understand their reporting obligations. Failure to report or late submittals are subject to civil penalties.

A list of the newly added PFAS is available in Table 4 (alphabetically by name) and Table 5 (by CAS number) of the final rule. Note that in the future, facilities may be required to report other PFAS as the EPA continues considering whether to add such other substances to TRI. Last year, the EPA published an advance notice of proposed rulemaking on this topic. Lastly, the EPA could also lower the currently established reporting threshold for these substances if warranted, as authorized by the NDAA. There is no doubt that PFAS continues to be a hot topic for discussion.