December Updates from the PCRRTK Committee

EPA Proposes to Add PFAS Subject to TRI Reporting to List of Chemicals of Special Concern—published December 7, 2022, by Lynn L. Bergeson and Carla N. Hutton

The U.S. Environmental Protection Agency (EPA) proposed on December 5, 2022, to add per- and polyfluoroalkyl substances (PFAS) subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). 87 Fed. Reg. 74379. EPA notes that these PFAS already have a lower reporting threshold of 100 pounds. Adding these PFAS to the list of chemicals of special concern will cause such PFAS to be subject to the same reporting requirements as other chemicals of special concern (i.e., it would eliminate the use of the de minimis exemption and the option to use Form A and would limit the use of range reporting for PFAS). EPA states that “[r]emoving the availability of these burden-reduction reporting options will result in a more complete picture of the releases and waste management quantities for these PFAS.” In addition, EPA proposes to remove the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern. According to EPA, this change will help ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase. Comments are due February 3, 2023.

EPA Proposes Changes to TRI Reporting of PFAS: Reporting More About Less—published December 8, 2022, by Judah Prero and Lawrence E. Culleen

On December 5, 2022, EPA published in the Federal Register its long-anticipated proposal to eliminate the de minimis exemption for reporting small quantities released of PFAS subject to Toxics Release Inventory (TRI) reporting. This effectively lowers the threshold for reporting PFAS that EPA was required to add to its TRI reporting requirement pursuant to the NDAA. If issued in final form, the action would add PFAS to the list of chemicals of special concern and change the reporting requirements for PFAS. EPA also proposed to remove the availability of the de minimis exemption for supplier notification requirements for all chemicals on the list of chemicals of special concern. These actions will likely increase the reporting burden for affected suppliers and manufacturers.

U.S. EPA Adds 12 Chemicals to Toxics Release Inventory—published December 8, 2022, by Rob Abrams, Marshall R. Morales, and Samuel B. Boxerman

On November 30, 2022, EPA finalized a rule that adds 12 chemicals to the list of chemicals subject to TRI reporting requirements. Facilities that are covered by TRI and meet reporting requirements for these chemicals will now be required to report to EPA on quantities of these chemicals that are released into the environment or otherwise managed as waste. The first reports on these chemicals will be due to EPA July 1, 2024, for calendar year 2023 data.

EPA Proposes SNURs for 35 PFAS, Advancing Key Action in PFAS Strategic Roadmap—published December 9, 2022, by Lynn L. Bergeson and Carla N. Hutton

On December 2, 2022, EPA proposed significant new use rules (SNUR) under the Toxic Substances Control Act (TSCA) for chemical substances that were the subject of premanufacture notices (PMN) and are also subject to orders issued by EPA pursuant to TSCA. 87 Fed. Reg. 74072. The SNURs require persons who intend to manufacture (defined by statute to include import) or process any of these chemical substances for an activity that is proposed as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA’s evaluation of the use, under the conditions of use (COU) for that chemical substance, within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required by that determination.