June 26, 2020
Jill Hyman Kaplan and Austin W. Manning
MGKF Special Alert
On June 22, 2020, the United States Environmental Protection Agency (EPA) published a final rule incorporating 172 per- and polyfluoroalkyl substances (PFAS) into the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). These additions affect facilities that manufacture (which includes importing), process, or otherwise use the listed PFAS. The new regulations set a reporting threshold of 100 pounds for each PFAS added and are effective for the 2020 calendar year. While not stated in the final rule, EPA’s website indicates that a de minimis level of 1 percent applies for all the PFAS additions except for perfluorooactanoic acid (PFOA) for which a de minimis level of 0.1 percent applies. Reporting for the 2020 calendar year is due July 1, 2021.
While the initial TRI reports that will include these PFAS are not due for a year, existing regulations covering EPCRA supplier notification requirements are triggered at this time. The supplier notification requirements apply to any company that (a) manufactures, imports or processes any of these PFAS, or (b) sells or otherwise distributes a mixture or product containing any of these PFAS to a facility covered by the TRI reporting requirements or to a person who in turn may sell or distribute the mixture or product. These companies must notify each facility or person to whom a PFAS mixture or product is sold or distributed about the presence of the PFAS and provide other specified information, including the percent by weight of each toxic chemical. Typically, if EPA adds chemicals to the TRI, an updated supplier notification is provided with the first shipment in the year where the change becomes effective. However, since EPA did not finalize which PFAS were being added until the middle of the year for which the change is effective, if shipments were already made in 2020, updated notices may need to be provided within 30 days to correct the prior “inaccurate” notification (although not inaccurate at the time provided), or should be provided with the next shipment of the mixture or substance.
Companies often satisfy the supplier notification requirement by including the information in the Regulatory Information section of the Safety Data Sheets (SDS), or by attaching a separate notification to the SDS. SDS are required by the Hazard Communication Standard under OSHA, but the Regulatory Information section is not a mandatory section. Generally, under the Hazard Communication Standard, revisions are required if the manufacturer learns of new hazards not previously identified. While EPA adding a chemical to the TRI does not constitute a new hazard, as more information becomes available about the hazards of PFAS, companies must determine when SDS must be updated to sufficiently warn of hazards. To satisfy the EPCRA supplier notification requirements discussed above, companies should consider whether to update the relevant section of the SDS or an attached notice, or provide an attached notice if the SDS cannot be updated in sufficient time.
Another hurdle in satisfying the supplier notification requirements is the unreliability of current sampling methods for the presence of PFAS. In determining the percentage weight of PFAS in mixtures, companies may need to rely on mass balance analyses or other approaches. Notably, in completing the annual TRI reports, companies need not sample and instead are instructed to use the best readily available data, which is often the SDS. So, the eventual TRI reports will only be as accurate as the underlying SDS or other data provided by manufacturers and suppliers.
If we can assist you in navigating these legal requirements or the technical challenges associated with them, please contact Jill Kaplan (484-430-2315), Austin Manning (484-430-2334) or our in-house technical consultant Michael Nines (484-430-2350).