By Jeryl L. OlsonAndrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: This U.S. Environmental Protection Agency (EPA) announced its final rule to add per- and polyfluoroalkyl substances (PFAS) to the list of chemicals required to be reported annually under the EPCRA Section 313 Toxics Release Inventory (TRI) reporting requirements, and established a 100-pound reporting threshold for these substances. TRI Reporters need to collect information beginning in 2020,  for the July 2021 report of 2020 releases. 

We had previously blogged that the National Defense Authorization Act (NDAA) Adds Per- and Polyfluoroalkyl Chemicals to TRI and about the EPA Advance Notice of Proposed Rulemaking on Per- and Polyfluoroalkyl Chemicals. In advance of the formal publication of the final rule in the Federal Register very soon, the Agency has published a pre-publication draft of the rule in a notice entitled:  EPA Takes Next Step to Implement PFAS Legislation,; the pre-publication notice lists the 172 PFAS that will shortly be subject to reporting under TRI.  Per- and polyfluoroalkyl substances are a group of man-made chemicals that includes PFOA, PFOS, and other chemicals. PFAS can be found in food, commercial household products, the workplace, drinking water, and in living organisms, including fish, animals, and humans.

While EPA estimates approximately 500 facilities nationwide will be required to report PFAs under the new rule, Seyfarth believes the impact is expected to be much, much larger because of the number of facilities in the affected NAICS codes which will be required to determine if they exceed the low 100 pound threshold trigger for reporting any of the individual PFAs. (The 100 pound threshold applies to manufacturing, processing or use of any of the listed PFAs, which are ubiquitous in industrial use). That is, many of our clients will need to carefully determine in 2020 whether they manufacture, process or use more than 100 pounds of any of the PFAs; the exercise of determining whether a facility has even met the threshold is itself a time-consuming process that must be done whether or not a facility must actually report the PFAs on its 313 form. To that end, the Agency notes that “TRI reporting requirements state that a facility should use readily available data collected pursuant to other provisions of law or, where such data are not readily available, reasonable estimates of the amounts involved.”

Under the rules,  Form 313 TRI reporting forms must be prepared for or include PFAS beginning July 1, 2021, for calendar year 2020 data.

For more information on the final rule, TRI reporting, the affected PFAs, or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.