EPA Implements Statutory Addition of Certain PFAS to TRI Beginning with Reporting Year 2023

On June 23, 2023, the U.S. Environmental Protection Agency (EPA) updated the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). 88 Fed. Reg. 41035. Specifically, EPA updated the regulations to identify nine per- and polyfluoroalkyl substances (PFAS) that must be reported pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) enacted on December 20, 2019. EPA states that “[a]s this action is being taken to conform the regulations to a Congressional legislative mandate, notice and comment rulemaking is unnecessary.” The final rule will be effective July 24, 2023. For Toxics Release Inventory (TRI) Reporting Year 2023 (reporting forms due by July 1, 2024), reporting is required for nine additional PFAS, bringing the total PFAS subject to TRI reporting to 189.
 
EPA states in its June 22, 2023, press release that it added four PFAS that are no longer claimed as confidential business information (CBI). Under NDAA Section 7321(e), EPA must review CBI claims before adding a PFAS to the TRI list if the chemical identity is subject to a claim of protection from disclosure under 5 U.S.C. Section 552(a). According to EPA, it previously identified these PFAS for addition to the TRI list based on NDAA’s provision to include certain PFAS upon NDAA’s enactment. Due to CBI claims related to their identities, EPA did not add these PFAS to the TRI list at that time. EPA states that the identities of these PFAS were subsequently declassified in an update to the TSCA Inventory in February 2022 because at least one manufacturer did not claim them as confidential during prior chemical data reporting. Because they were no longer confidential, pursuant to NDAA, EPA added the following four chemicals to the TRI list:

• Alcohols, C8-16, γ-ω-perfluoro, reaction products with 1,6-diisocyanatohexane, glycidol and stearyl alc. (Chemical Abstracts Service Registry Number^® (CAS RN^®) 2728655-42-1);
• Acetamide, N-[3-(dimethylamino)propyl]-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs. (CAS RN 2738952-61-7);
• Acetic acid, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., 2-hydroxypropyl esters (CAS RN 2744262-09-5); and
• Acetamide, N-(2-aminoethyl)-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., polymers with N1,N1-dimethyl-1,3-propanediamine, epichlorohydrin and ethylenediamine, oxidized (CAS RN 2742694-36-4).

NDAA includes a provision that automatically adds PFAS to the TRI list upon EPA’s adoption of a final toxicity value. In December 2022, EPA adopted a final toxicity value for perfluorobutanoic acid (PFBA), its anion, and its related salts. Pursuant to NDAA, EPA added the following five chemicals to the TRI list:

• PFBA (CAS RN 375-22-4);
• Perfluorobutanoate (CAS RN 45048-62-2);
• Ammonium perfluorobutanoate (CAS RN 10495-86-0);
• Potassium perfluorobutanoate (CAS RN 2966-54-3); and
• Sodium perfluorobutanoate (CAS RN 2218-54-4).