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New TRI Reporting Requirements for Controversial PFAS Chemicals

On May 18th, the Environmental Protection Agency (EPA) took the next step to implement Per- and polyfluoroalkyl substances (PFAS) legislation. As per the National Defense Authorization Act (NDAA), 172 PFAS were added to the list of chemicals required to be reported to the Toxics Release Inventory (TRI) and established a 100-pound reporting threshold. The EPA is publishing a final rule that will incorporate these requirements into the Code of Federal Regulations for TRI reporting. The PFAS additions became effective as of January 1, 2020 with reports due to the EPA by July 21, 2021 for the 2020 calendar year.

Recordkeeping and reporting under the TRI has already seen hurdles created by COVID-19, and while the EPA announced in late March that it will suspend enforcement of certain routine monitoring and reporting violations due to the pandemic, businesses must still conduct monitoring and collect data under TRI requirements for certain PFAS.

This may present several challenges to manufacturers. The EPA has not yet validated established analytical methods for non-drinking water media (i.e., surface waters, groundwaters, wastewater, biosolids, soils, sediments, etc.), and there is not yet an approved stack testing method for measuring PFAS in air emissions. Reliable sampling methods are not only limited, but sampling protocol for PFAS is uniquely complex and a great number of variables can easily impact sampling results. As methodologies to measure PFAS releases are still in development, this may create obstacles to report readily available data with accurate calculations.

If not yet initiated, facilities in the TRI-covered sector should begin tracking use of any of the 172 listed PFAS and collect data to determine the quantities manufactured, processed or otherwise used to determine if reporting will be required. Utilize Safety Data Sheets (SDS) and carefully review your chemical inventory at the ingredient level. Facilities that manufacture, process, use, or produce byproduct of more than 100 pounds of any of the 172 listed individual PFAS compounds must submit annual TRI reports to the EPA. Document the methodology you use to track and collect data on these chemicals and if you do not report, document evidence that supports why you do not meet the chemical threshold in the event of an inspection or regulatory audit. Reporting can be completed by submitting the required TRI Form R for each listed chemical, subject to certain exceptions and criteria (e.g., de minimis exception). Facilities are instructed to use the best “readily available data,” or when such data are not available “reasonable estimates,” in fulfilling their reporting requirements.

National attention surrounding PFAS, a push for greater research and regulation, and more scrutiny on industries releasing the chemicals may call for more exhaustive reviews of TRI reports in 2021 and warrant more regulatory changes to come.

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We have experienced consultants that can assist with reviewing chemical inventories, determining tracking methodologies and making threshold determinations, as well as with completing release calculations and TRI report preparation. For more information on PFAS chemicals or TRI assistance, please give us a call or fill out our Contact Us form.