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On December 4, 2019, the United States Environmental Protection Agency (USEPA) published in the Federal Register an Advance Notice of Proposed Rulemaking titled “Addition of Certain Per-and Polyfluoroalkyl Substances; Community Right-to-Know Toxic Chemical Release Reporting.” 84 Fed. Reg. 66369. USEPA is currently considering a rule proposal to add certain polyfluroroalkyl substances (PFAS) to the list of toxic chemicals subject to reporting under the Emergency Planning and Community Right-to-Know Act (Right-to-Know Act) and the Pollution Prevention Act. This list is also known as the Toxics Release Inventory (TRI), and chemicals within the TRI are known as “listed chemicals.” PFAS are synthetic organic compounds that are used in a wide variety of consumer and industrial products. According to USEPA, currently 600 PFAS are manufactured and/or used in the United States.

The Right-to-Know Act requires certain facilities that manufacture, process, or use listed chemicals above the reporting threshold levels to annually report releases and waste management quantities of such chemicals. Reporting of pollution prevention and recycling data for these chemicals is also required under the Pollution Prevention Act. The statutory reporting threshold for manufacturing or processing listed chemicals is typically 25,000 pounds, and the threshold is usually 10,000 pounds for otherwise using listed chemicals. Currently, no PFAS chemicals are included on the list of toxic chemicals.

According to USEPA, PFAS are resistant to degradation and thus are highly persistent in the environment. Because of their widespread use and tendency to persist, most people in the United States have been exposed to PFAS. Because some PFAS may be toxic, releases to the environment and potential human exposure may be of concern. If PFAS are added to the list of toxic chemicals, USEPA is considering establishing a reporting threshold lower than the typical statutory thresholds due to the environmental persistence and bioaccumulation potential of PFAS.

USEPA issued the Advance Notice of Proposed Rulemaking to allow stakeholders the opportunity to comment on adding certain PFAS to the list of toxic chemicals. If USEPA decides to move forward with this action, the next step would be for USEPA to publish a proposed rule in the Federal Register to add certain PFAS to the list and set the appropriate reporting thresholds. The Advance Notice of Proposed Rulemaking is available at: https://www.govinfo.gov/content/pkg/FR-2019-12-04/pdf/2019-26034.pdf. Comments on the Notice of Proposed Rulemaking must be submitted by February 3, 2020.