EPA Proposes Adding PFAS to TRI List of Chemicals of Special Concern and Amending Supplier Notifications Requirements
On December 5, 2022, EPA released a proposed rule which, if implemented, will automatically designate PFAS on the Toxic Release Inventory (TRI) to the list of Lower Threshold Chemicals of Special Concern (“Chemicals of Special Concern”). The chemicals on this list have profiles that are categorized as persistent bioaccumulative toxic and are referred to as PBT chemicals. Currently, only 16 PBT Chemicals of Special Concern are on this list. Chemicals of Special Concern are subject to different reporting requirements than the other chemicals that are subject to TRI reporting. PBTs on the TRI chemical list have reporting thresholds that are either 10 pounds or 100 pounds, several orders of magnitude lower than most other TRI-listed chemicals. (Reporting thresholds for TRI chemicals are usually set at 10,000 pounds or 25,000 pounds.) Another characteristic of Chemicals of Special Concern is that they are ineligible for the de minimus exemption.
The de minimus exemption allows facilities to avoid reporting small concentrations of most TRI chemicals. The exemption applies to threshold determinations such as release and waste management calculations. The Agency’s rationale is that eliminating the de minimus exemption for PFAS will give it a more complete picture of the releases and waste management practices for these substances. Use of the de minimus exemption, EPA believes, has allowed significant quantities of PFAS to avoid TRI reporting.
The rule further proposes removing the de minimus exemption for purposes of Supplier Notification Requirements for all chemicals on the list of Chemicals of Special Concern. Supplier notifications require that suppliers of products that contain one or more of the EPCRA section 313 chemicals notify their customers that the substance(s) is present. (EPCRA section 313 chemicals are those for which EPA is required to establish an inventory of routine toxic chemical emissions from manufacturing.) Suppliers are currently exempt from this requirement when the chemical is in an article or part of a consumer product.
As with PFAS, the Agency is concerned that significant quantities of chemicals of special concern can be overlooked by reporting facilities by using the de minimus exemption. The de minimus exemption threshold for non-PBT TRI-listed chemicals is 1% percent; for carcinogens, the threshold is .01%. EPA provided the following example:
“If a mixture or trade name product contains 0.9% of a listed PFAS and 100,000 pounds of the product is purchased, the supplier need not provide notification, and the purchaser could be unaware of and not account for 900 pounds of PFAS. The impact of this exemption for the PBT chemicals with 10-pound reporting thresholds is even greater. Using the same 100,000-pound example, if mercury [a PBT with a reporting lower threshold] were present at 0.9%, then that same 900 pounds would be 90 times the mercury reporting [i.e., the threshold for mercury reporting for nonexempt releases is 10 pounds].”
EPA considered including a small quantity exemption instead of a de minimus exemption for supplier notification purposes. However, the Agency ultimately decided against this option. The Agency has concerns that this type of exemption would not provide adequate information to facilities receiving multiple shipments over the course of a year. The facilities would have insufficient information to address TRI reporting requirements that may apply to them based on the total aggregated quantity received. Without this data on the TRI-listed chemical, EPA is not confident the receiving facility would have sufficient data to fulfill its TRI reporting obligations.