Earlier this week, U.S. EPA released the agency’s 2020 TRI National Assessment Report, which includes data from first-time reports filed for per- and polyfluoroalkyl substances (PFAS). In releasing the report, EPA indicated that it was concerned by “the seemingly limited scope of PFAS reporting” and that it plans to “enhance PFAS reporting under the TRI by proposing a rulemaking this summer that would, among other changes, remove the eligibility of the de minimis exemption for PFAS.”
While PFAS are subject to a lower reporting threshold (100 pounds per year) than most other TRI-listed substances (the typical thresholds are 25,000 pounds for manufacturing and processing activities, and 10,000 pounds for “otherwise use”), the de minimis exemption allows facilities to disregard certain minimal concentrations of the chemicals in the materials they process. In adding PFAS to the TRI list in June 2020, EPA retained the availability of the de minimis exemption for PFAS — which is 0.1% for perfluorooctanoic acid (PFOA) (due to its cancer classification), and 1% for all other PFAS. Accordingly, the quantity of PFAS in mixtures that contain less than the de minimis concentration do not need to be counted towards the reporting threshold or in release calculations.
Because PFAS are used at low concentrations in many products, the elimination of the de minimis exemption will result in a more complete picture of the releases and other waste management quantities for these chemicals.
– U.S. EPA Press Release, March 3, 2022
The announcement is consistent with the agency’s October 2021 PFAS Strategic Roadmap in which EPA stated its intent to propose a 2022 rulemaking to categorize the PFAS on the TRI list as “Chemicals of Special Concern” and to remove the de minimis eligibility from supplier notification requirements for all “Chemicals of Special Concern” (including other persistent, bioaccumulative and toxic or “PBT” substances) The Roadmap also noted that EPA will continue to update the list of PFAS subject to TRI. The goal of these actions is to “enhance the quality and quantity of PFAS information collected through TRI.”
Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) requires facilities that manufacture, process or otherwise use TRI-listed chemicals to file annual reports (by July 1) with EPA providing details about their pollution prevention and waste management activities, including releases, of TRI chemicals during the prior calendar year. In June 2020, EPA officially added 172 PFAS to the list of chemicals reportable each year under the TRI program, with subsequent additions to that list, including four new listings in January 2022 for perfluorobutane sulfonic acid (PFBS), potassium perfluorobutane sulfonate, and two chemicals named only by their numeric chemical identifiers: Chemical Abstracts Service registry number (CASRN) 203743-03-7 and CASRN 65104-45-2.
The first reports for PFAS were filed with EPA by the July 1, 2021, deadline for the 2020 reporting year.
EPA’s summary report of the 2020 TRI data states that 38 facilities reported for PFAS activities during 2020, managing 800,000 pounds of the chemicals with 9,000 pounds released. Predictably, half of the reports were filed by the chemical manufacturing industry sector, with 11 others from the hazardous waste management sector. The reports addressed 43 different PFAS, most commonly PFOA, perfluorooctanesulfonic acid (PFOS), and hexafluoropropylene oxide dimer acid (HFPO-DA). Of the quantities of PFAS released, over 90 percent were disposed of on site (55%) or transferred off site for disposal (36%), and, therefore, not directly released to the environment. Nine percent of reported “releases” were in the form of water discharges (5%) and air emissions (4%).