Client alert: USEPA finalizes rule to remove the de minimis exemption for PFAS subject to TRI reporting

A new final rule adds PFAS subject to Toxics Release Inventory (TRI) reporting to the list of ‘chemicals of special concern’, thus eliminating the de minimis exemption as well as the option to report using the abbreviated Form A. Haley Ahlers looks deeper into the rule and the implications for supplier notification and TRI reporting.

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Summary of the final rule

On October 31, 2023, the United States Environmental Protection Agency (USEPA) finalized the rule to institute changes to Toxics Release Inventory (TRI) reporting requirements for per- and polyfluoroalkyl substances (PFAS) and supplier notifications for Chemicals of Special Concern as covered under the Emergency Planning and Community Right-to-Know Act (EPCRA).

In December 2019, the National Defense Authorization Act (NDAA) was signed into law, immediately adding 172 PFAS to the TRI list of chemicals and providing a framework for PFAS to be added to the list on an annual basis. Certain PFAS have been added each year since the NDAA was signed and, as of reporting year (RY) 2023, there are 189 unique PFAS subject to TRI reporting. The NDAA set the reporting threshold for all PFAS subject to TRI at 100 pounds per chemical. Additionally, a de minimis value of 1.0% was established for each PFAS except for perfluorooctanoic acid (PFOA) which was set at 0.1%.

This ruling classifies PFAS subject to TRI, all 189 currently listed chemicals along with any future additions, as chemicals of special concern, precluding them from the de minimis exemption. As such, the amounts of PFAS manufactured, processed, or otherwise used at any concentration at a facility, must be evaluated and compared to the 100-pound reporting thresholds to determine reporting requirements.

Additionally, as chemicals of special concern, PFAS no longer qualify for the submission of the abbreviated Form A report, which could be submitted in lieu of a Form R for chemicals used in quantities less than 1 million pounds with total releases less than 500 pounds.

Finally, this rule removes the de minimis exemption for supplier notification requirements of chemicals of special concern. Historically, supplier notification was not required for TRI chemicals present in a material below the de minimis value, even for persistent, bioaccumulative, and toxic (PBT) chemicals and other chemicals of special concern such as lead, lead compounds, and mercury. This meant that compositional data for PFAS present below the applicable 1.0% and 0.1% de minimis concentrations did not have to be included on safety data sheets (SDS) or other supplier notification documents.

With this rule change, facilities in a covered industry (facilities with a North American industry classification system (NAICS) code that corresponds to standard industrial classification (SIC) codes 20-39, ‘manufacturing’), must disclose the amount of PFAS present in any mixtures or trade name products that they send to other covered facilities for further processing or sale.

Timeline

The rule will be effective as of November 30, 2023 and shall apply to the 2024 reporting year (reports due July 1, 2025).

Who will be affected

USEPA found that the majority of the PFAS TRI reports received for RYs 2020 and 2021 were from primary PFAS manufacturers and waste disposal facilities. In follow-up discussions with suspected PFAS-using facilities, USEPA discovered that each of the contacted facilities indicated that reporting was unnecessary because they used PFAS at concentrations below the de minimis threshold. This prompted USEPA to classify PFAS as chemicals of special concern.

Primary PFAS manufacturers and secondary users of PFAS-containing materials will now have an increased responsibility to include compositional information in their SDSs and other supplier notification documents. Additionally, customers will need to do their due diligence to ensure that, as they receive these updated SDSs from their vendors, they are replacing old or out-of-date documents and screening the new SDSs for PFAS upon receipt. If PFAS are listed in the updated SDSs received, the facilities processing the materials will need to perform detailed threshold analyses to evaluate whether the 100 pound per year reporting thresholds (which apply to each individual PFAS compound regulated under TRI) are exceeded.

Supplier notification requirements

As detailed in the GuideME section of USEPA’s website, facilities must supply notification if they own or operate a facility that meets the following criteria:

The facility has a NAICS code that corresponds to SIC codes 20-39.
The facility manufactures (including imports) or processes a TRI chemical.
The facility sells or otherwise distributes a mixture or other trade name product containing the TRI chemical to either: - A facility in a covered NAICS code - A person that then may sell the same mixture or other trade name product to a firm in a covered NAICS code.

It is important to note that a facility may have supplier notification obligations even if that facility does not trigger TRI reporting on its own.

Prior to the issuance of this rule, supplier notification was not required in the following scenarios:

The TRI chemical is present below the de minimis level.
The material containing the TRI chemical is present in one of the following: - An article that would not release the TRI chemical under normal conditions of processing or otherwise use. - Foods, drugs, cosmetics, alcoholic beverages, tobacco, or tobacco products packaged for distribution to the general public. - Any consumer product, as the term is defined in the Consumer Product Safety Act, packaged for distribution to the general public.

The new ruling eliminates the de minimis exemption for all chemicals of special concern, not just PFAS. The other exemptions (i.e., article exemption) remain unchanged.

The supplier notification regulations in 40 CFR § 372.45 indicate that a person is not subject to the notification requirements to the extent that the person does not know that the facility is selling or otherwise distributing the TRI chemical to another person. However, if the person receives notice from one of their suppliers indicating that they have received a TRI chemical, that person does have knowledge of the presence of the TRI chemical and would be subject to reporting obligations.

TRI thresholding and release reporting requirements

Once a facility in a covered industry receives supplier notification indicating the presence of PFAS in any materials processed or otherwise used onsite, they will be obligated to perform a threshold analysis and compare the total amount of PFAS processed or otherwise used to the 100-pound reporting threshold.

In instances where the 100-pound threshold is exceeded, a Form R will need to be prepared as chemicals of special concern are ineligible for the abbreviated Form A report. Additionally, PFAS will now also be subject to slightly stricter reporting requirements than other TRI chemicals. These special requirements include:

The inability to use range-reporting for on-site releases and transfers off-site for further waste management.
The requirement to report releases for any reportable chemical in quantities greater than or equal to 0.1 pounds (releases for non-PBT chemicals must be reported when greater than or equal to 0.5 pounds).
When the data exist to support reporting an amount that is more precise than a whole number, the more precise amount should be used (non-PBT chemicals are recommended to be reported rounded to the nearest whole number).

Other considerations

TRI reporting makes use of best “readily available information” and as such, a facility is not required to conduct analytical sampling or testing, outside of any collections required by other provisions of law, to identify the presence of TRI chemicals onsite. Additionally, if the SDS or other supplier notification documentation does not indicate the presence of a TRI chemical, and a facility doesn’t have reason to believe the material contains TRI chemicals, the facility is not required to reach out to suppliers and confirm the absence of TRI chemicals. However, if a facility does perform sampling, independent research, or reaches out to suppliers to get additional information and finds that the materials it uses do contain TRI chemicals, that information is now the best readily available data and must be used.

While this rule will go into effect for RY 2024, we expect that it will take time for updated compositional information to make its way through the supply chain to reach affected facilities. As such, SDSs and other supplier notification letters should continue to be screened for PFAS each year as new documents are provided.

Actions covered industries should consider taking now

Perform a comprehensive PFAS operational assessment to evaluate the potential for PFAS to be present at your facility. Are you manufacturing or importing any PFAS into the United States? Have you received supplier notification or other information from any of your suppliers to indicate the presence of PFAS in your raw materials?
Seek professional guidance from your risk management team on the breadth and depth of advisory services that may be required for your situation such as environmental, legal, financial, and risk communication.
If you don’t already have one, consider implementing a more robust SDS tracking system to electronically screen SDSs for TRI chemicals as they are received from your suppliers.
It is not uncommon for SDS tracking or filing systems to become cluttered with old and out of date files. Take this time to delete old SDSs and ensure you have the most up-to-date versions from each of your suppliers on file.

Ramboll can help

Ramboll has a team of professionals dedicated to assisting clients with their TRI challenges. We provide routine TRI compliance and TRI auditing services and understand the complex regulatory applicability determinations required for TRI reporting and the challenges that they can present at both a corporate and facility level. Our multi-disciplinary expertise and experience has been instrumental in assisting clients in understanding and correcting TRI reports. We appreciate the potentially sensitive information that can be associated with PFAS and structure projects for our clients accordingly.

Acronym summary

EPCRA – Emergency Planning and Community Right-to-Know Act FR – federal register NAICS - North American industry classification system NDAA – National Defense Authorization Act PBT – persistent, bioaccumulative, and toxic PFAS – per- and polyfluoroalkyl substances PFOA – perfluorooctanoic acid RY – reporting year SIC – standard industrial classification TRI – toxics release inventory USEPA – United States Environmental Protection Agency

The information contained and opinions expressed herein: (i) are for discussion/informational purposes only, without representation or warranty; (ii) are general in nature, may not be applicable to your particular circumstances, and cover subject matters for which information and practices may change/develop quickly over time; and, therefore, (iii) should not be relied upon for any particular circumstances without consulting an environmental professional experienced in both PFAS and the specific issues related to your matter.

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