The National Defense Authorization Act for Fiscal Year 2020 (NDAA) includes sections to specifically fund research to improve the scientific understanding of the health risks posed by per- and polyfluoroalkyl substances (PFAS) and to use existing statutory authorities to require regulated sectors to add information to that understanding. Among the new and major legal provisions is the addition of 160 PFAS to the list of substances that must be reported under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), commonly called the Toxics Release Inventory (TRI).
President Donald Trump signed the NDAA into law on December 20, 2019.
The TRI regulations require that facilities in different industry sectors annually report how much of each of about 800 chemicals and chemical categories is released to the environment and/or managed through recycling, energy recovery, and treatment. (A release of a chemical means that it is emitted to the air or water or placed in some type of land disposal.)
Following are key points about the NDAA’s PFAS TRI provisions:
- The NDAA identifies 14 PFAS by name and/or Chemical Abstract Service Registry Number (CASRN) and identifies additional PFAS based on certain criteria (e.g., listed as an active chemical substance in the February 2019 update to the Toxic Substances Control Act (TSCA) Inventory). Altogether, the Agency determined that 160 PFAS are subject to TRI listing under the NDAA.
- The EPA says it will soon revise the EPCRA Section 313 list of reportable chemicals in the Code of Federal Regulations to include the 160 PFAS.
- The NDAA establishes TRI manufacturing, processing, and other use reporting thresholds of 100 pounds for each of the listed PFAS.
- The identities of some chemicals in the list of 160 are protected by confidential business information (CBI) claims. The NDAA directs the Agency to review the CBI substantiation claims made by regulated entities for these substances. If the claims are found to be valid, the Agency must list the chemical in a way that does not reveal its identity.
- The new TRI requirements for the list of 160 PFAS are effective for reporting year 2020. This means that the substances must be included in TRI reports due by July 1, 2021.
- Apart from the specified chemicals, the NDAA provides that additional PFAS are to be added to the TRI under certain conditions. For example, if the EPA identifies a toxicity value for an unlisted PFAS, that substance must be added to the TRI on January 1 after the date the toxicity value is finalized.
- Finally, by 2 years after its enactment, the NDAA indicates that the EPA consider other PFAS for addition to the TRI based on the listing criteria in EPCRA Section 313(d)(2). Independent of the NDAA, the EPA initiated movement in this direction by publishing an advanced notice of proposed rulemaking (ANPRM) in early December 2019. The ANPRM solicited public comment on factors the Agency should consider in proposing a rule to add certain PFAS to the TRI list.
Also in the NDAA
Additional provisions in the NDAA would increase the regulation of PFAS under TSCA and also require the Department of Defense (DOD) to test the blood of military firefighters for the presence of PFAS. The DOD must also phase out the use of PFAS firefighting foams by 2024. These materials are believed to be a major source of PFAS contamination of drinking water.
In addition, under NDAA Section 7311, the EPA is directed to use its authority under the Safe Drinking Water Act to require public water systems serving more than 10,000 persons to monitor for the presence of PFAS in drinking water. Systems serving between 3,300 and 10,000 persons would be required to monitor if adequate appropriations are available. A representative sample of systems serving fewer than 3,300 persons would need to monitor for PFAS, also depending on the availability of appropriations.