By Jeryl L. Olson, Ilana R. MoradyKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  On December 20, 2019, the National Defense Authorization Act for Fiscal Year 2020 (NDAA) was signed into law, including provisions for adding certain per- and polyfluoroalkyl substances (PFAS) to the EPA’s Toxic Release Inventory (TRI) list of reportable chemicals under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and Section 6607 of the Pollution Prevention Act (PPA).

Per- and polyfluoroalkyl substances are a group of synthetic chemicals that have commonly been used in manufacturing since the 1940s and can be found ubiquitously in food, commercial and household products, the workplace, drinking water, and in living organisms, including fish, animals, and humans. These chemicals are believed by EPA to be persistent in the environment, that is, they bioaccumulate and are believed to cause adverse health effects.

The TRI requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels, to report their environmental releases, waste management activities, uses and handling of such chemicals annually. EPA bases listing decisions on the chemical’s hazard (i.e., toxicity), not the risk (i.e., toxicity plus potential exposures).  The TRI listing provisions are significant for industry because they will generate new information about where PFAS are manufactured, stored and used, all of which will identify regulatory gaps and potential enforcement targets and inform future legislative and regulatory efforts to address PFAS.

There are approximately 600 PFAS manufactured and/or used in the U.S. The NDAA added several PFAS to the TRI program. Section 7321 of the NDAA, which provides an initial list of the newly affected chemicals, includes perfluorooctanoic acid (PFOA), perfluorooctane sulphonate (PFOS), perfluorononanoic acid (PFNA), perfluorohexyl sulfonate (PFHxS), GenX (CAS No. 62037-80-3 as ammonium salt; CAS No. 13252-13-6 as acid), and others. Facilities in industries regulated under the TRI framework, generally mining, various manufacturing, utilities, publishing, and hazardous waste sectors (see covered industry sectors), must begin tracking and collecting data on the usage of the affected chemicals in Calendar Year 2020, with reporting due by July 1, 2021.

Additionally, EPA is considering proposing a future TRI rule on certain other PFAS with a lower threshold quantity than the standard reporting thresholds (25,000 pounds for manufacturing or processing of a listed chemical and 10,000 pounds for “otherwise using” listed chemicals) due to the chemicals’ persistent and bioaccumulation potential. The Advance Notice of Proposed Rulemaking (ANPRM) that would include more PFAS compounds to be considered for reporting under the TRI program is open for comment through February 3, 2020. See EPA Advance Notice of Proposed Rulemaking on Per- and Polyfluoroalkyl Chemicals.  The addition of PFAS to the EPA’s TRI reporting requirements would require companies manufacturing, processing or otherwise using PFAS over threshold amounts, to report on annual Form R reports.

Public comments on the ANPRM must be submitted by February 3, 2020, to docket EPA-HQ-TRI-2019-0375 on

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.