Additional PFAS added to TRI Reporting

On January 24, 2022, the United States Environmental Protection Agency (EPA) took another step in the continuing expansion of PFAS regulation with the addition of four PFAS to the Toxic Release Inventory (TRI) reporting requirements. As a refresher, TRI tracks the management of certain toxic chemicals that may pose a threat to human health and the environment. Certain industrial and federal facilities are required to report annually how much of each listed chemical is released to the environment and/or managed by the facility through recycling, recovery, or treatment. The information compiled with EPA and the TRI helps support informed decision-making by facilities, government agencies, and the public.

The inclusion of PFAS in TRI is not new. In 2020, the National Defense Authorization Act listed 172 PFAS on the TRI, and required inclusion on any PFAS that may be added to the Toxic Substances Control Act inventory. The newly added chemicals for 2022 are PFBS, potassium perfluorobutane sulfonate, and two more chemicals listed by their Chemical Abstracts Service registry numbers in the TSCA inventory: CASRN 203743-03-7 and CASRN 65104-45-2.

Expansion to add these four PFAS to TRI reporting requirements is not, in and of itself, a significant expansion or restriction on the use of PFAS, but it does highlight the continued efforts of the EPA to regulate the use of PFAS. And, importantly, any business utilizing these newly listed PFAS or any of the other 172 previously listed PFAS should be certain they are tracking their use and disposal in order to maintain accurate compliance with TRI reporting requirements.

Illinois Act Restricts Use of PFAS Containing AFFF

On a more local level, Illinois’ PFAS Reduction Act became effective January 1, 2022. With the PFAS Reduction Act Illinois becomes the twelfth state to ban or restrict class B firefighting foam, also known as aqueous film forming foam (AFFF). The initial impact of the PFAS Reduction Act is the creation of a ban on the use of PFAS containing AFFF in training and testing. This ban is effective immediately, unless the facility testing the product provides a site assessment for control measures, treatment, and disposal; complies with the state’s notification requirements prior to testing; and trains workers using the AFFF on the potential hazards of exposure to the product and the appropriate measures to take while cleaning up after completion of testing.

The PFAS Reduction Act creates a few new safeguards on the use of PFAS containing AFFF that went into effect on January 1, 2022. For instance, the Act requires manufacturers of AFFF to provide warnings to users and fire departments prior to the sale of a PFAS containing AFFF. Further, the Act creates an obligation to report the proposed release or testing of PFAS containing AFFF within 48 hours of any release. The reporting requirement in the Illinois Act calls for the reporting party to provide a reason for the release, the time of the release, the location, and the quantity of the product released. The reporting party must also identify the proposed containment, treatment, and disposal measures to minimize the risk of contamination.

Finally, and perhaps most significant for future planning of any manufacturer, the Act sets forth a timetable for a ban on the manufacture, sale, and distribution of PFAS containing AFFF. This ban will become effective January 1, 2025, giving manufacturers an opportunity to phase out PFAS containing AFFF.

As we move forward in 2022, it is already clear that at the federal and state levels the regulation and restriction on the use of PFAS will be a rapidly evolving area to keep an eye on for many businesses.

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