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On 18 May 2020 the U.S. Environmental Protection Agency (EPA) published a final rule codifying previous legislative actions that added 172 perfluoroalkyl and polyfluoroalkyl substances (PFAS) into the Toxic Release Inventory (TRI) into the Code of Federal Regulations (CFR).
Verisk 3E Review
The National Defense Authorization Act (NDAA), passed 20 December 2019, added 172 PFAS into the TRI (also known as Section 313 of the Emergency Planning and Community Right-to-Know Act) and established a 100-pound reporting threshold for any substances on the TRI. The EPA is taking steps to implement these substances into the CFR but due to the NDAA requirements, these PFAS additions and therefore also the 100-pound reporting threshold have been effective since 1 January 2020. Reporting forms on these PFAS substances are due on 1 July 2021 as they are included in the 2020 reporting year.
The EPA has released a prepublication final rule for review before the official rule is published in the Federal Register. The NDAA defined the scope of the PFAS substances subject to the TRI as those with the following criteria:
- listed as an active chemical substance in the February 2019 update to the TSCA Inventory under Sections 8(b)(1) and (ii) on the date of enactment of this Act, subject to the provisions of:
- (I) Section 721.9582 of Title 40, Code of Federal Regulations; or
- (II) Section 721.10536 of Title 40, Code of Federal Regulations
Based on the EPA review, there are 170 chemicals that meet these regulations (including 12 of the 14 named substances in the NDAA) along with the addition to the two other chemicals named in the NDAA, which represent the 172 total substances to be added into the CFR.
Any PFAS whose identity is claimed to be confidential business information (CBI) must be reviewed by the EPA before addition into the TRI. The EPA will evaluate the CBI claim and may require the submitting entity to substantiate that claim in accordance with the Toxic Substances Control Act (TSCA), Section 14(f).
Verisk 3E Analysis
Businesses who will meet the 100-pound reporting threshold for any substances should begin actively tracking these substances in preparation for reporting next year.
This move by the EPA, along with multiple similar decisions from state legislatures and environmental departments, shows a greater move towards removing or reducing the amount of PFAS in everything from consumer products to industrial uses. Affected businesses and persons should expect that more PFAS will be added into the TRI and more restrictions will be enacted in the future.
Our Regulatory Consulting team can help you comply with this complex, annual mandatory U.S. Toxics Release Inventory (TRI).