August 10, 2023

EPA Seeks Comment on Air Pollutant Reporting for PFAS

Holland & Knight Energy and Natural Resources Blog
Dianne R. Phillips
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The U.S. Environmental Protection Agency (EPA) announced on July 25, 2023, a proposed rule, published in the Federal Register on Aug. 9, 2023, to update the Air Emissions Reporting Requirements (AERR) to collect certain additional emissions data critical for performing air quality and risk analyses, among other regulatory and non-regulatory activities. This proposed action would allow for EPA to annually collect (starting in 2027) hazardous air pollutant (HAP) emissions data for point sources, among other things. Among the wide-ranging topics covered by the voluminous filing is EPA's request for comment on how it could include per- and polyfluoroalkyl substances (PFAS) reporting requirements in the final rule.

Among the considerations (described on page 54148 of the Federal Register notice) is to add the list of PFAS substances subject to EPA's Toxics Release Inventory (TRI) reporting requirements to the tables associated with 40 C.F.R. Part 51, Subpart A at the same reporting level as the TRI reporting requirement (0.05 tons per year). This is the level set by Congress for TRI reporting in Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) enacted Dec. 20, 2019, which EPA indicates would reduce complexity and burden on parties required to report. That said, EPA recognizes this simpler approach does not align perfectly because of the different purposes for each reporting program and the fact that TRI reporting is based on single PFAS use. In addition, EPA acknowledges that it does not have sufficient information to calculate toxicity and perform a risk assessment similar to that performed for Hazardous Air Pollutant (HAP) designation and limitations currently existing regarding measurement methods.

EPA has scheduled three informational webinars for industry, small business and tribal entities, as well as environmental justice communities, on Aug. 17, 24 and 29, 2023. EPA will also hold a public hearing on Aug. 30, 2023, to accept public comments (preregistration is required). Lastly, public comments will be accepted until Oct. 18, 2023, and may be filed electronically using Docket ID No. EPA-HQ-OAR-2004-0489.

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