Several environmental groups recently filed a suit (the “Complaint”) challenging two EPA rules (the “PFAS rules”) that added a total of 175 PFAS chemicals to the list of toxic chemicals subject to reporting under what is commonly known as the Toxics Release Inventory (“TRI”).1The lawsuit seeks two reporting exemptions for those who manufacture, process or use the 175 newly PFAS chemicals.
- The De MinimisExemption. If a chemical is used in a chemical mixture, it is not required to be reported by the facility.
- The Alternate Threshold Exemption. This allows a facility the option to report a lower threshold of one million pounds annually of a TRI listed chemical if it certifies that its reported releases or disposals were not more than 500 pounds.
The Complaint might not have much practical impact as EPA has already stated its intention to initiate a rulemaking process in order to expand TRI reporting of PFAS and eliminate the de minimis exemption. However, this suit is a useful reminder that citizens’ groups make use of the publicly available data from the TRI program to track facilities where releases have been reported.
Background: EPA adds certain PFAS to its Toxics Release Inventory
Under Section 313 of the Emergency Planning and Community Right-to-Know Act (“EPCRA”), facilities that manufacture, process, or otherwise use chemicals listed on the TRI over a threshold amount are required to annually report the quantity of the chemicals that are released, emitted, or discharged into the environment, unless an exemption is applicable. This information is made publicly available through EPA’s Web resources.
In the National Defense Authorization Act (“2020 NDAA”), Congress specifically added a list of PFAS chemicals to the TRI and specified that the “threshold amount” for reporting would be 100 pounds. The Congress directed EPA within five years to decide if it would be possible to revise the threshold.2The NDAA also created a framework to list additional PFAS annually, providing specific triggers that will require additional PFAS to the TRI when certain conditions are met.3
Not all chemicals listed on TRI are equally treated. Some listed chemicals may be categorized as “chemicals of special concern” which include known or suspected human carcinogens and persistent, bioaccumulative, and toxic (“PBT”) chemicals. The EPA did not consider the 175 newly-listed PFAS chemicals to be chemicals of special concern in its PFAS rules. This meant that the two regulatory exemptions outlined earlier were available for the newly-listed PFAS.
The Lawsuit – Substantive Arguments and Implications for the TRI
The lawsuit alleges that EPA’s rulemaking violated the 2020 NDAA, EPCRA, and the Administrative Procedure Act by making the de minimisAlternate threshold exemptions are available to newly listed PFAS. Environmental groups claim that EPA violated 2020 NDAA’s intent because Congress didn’t direct EPA to make PFAS reporting subject the two exemptions in law. EPCRA also gives EPA limited authority over applying exemptions to TRI listed chemicals. In addition, Plaintiffs allege that EPA improperly promulgated the PFAS Rules as “non-discretionary and ministerial” rulemakings that lacked a notice and comment period.
EPA previously announced its intentions in its PFAS Strategic RoadmapIt intends to propose a rulemaking for 2022 to categorize PFAS as TRI chemicals special concern and to eliminate the de minimisThese chemicals are exempt from the exemption criteria, but the Roadmap doesn’t mention whether an alternate threshold exemption will be removed. Other reporting requirements will be required in 2022 under the Toxic Substances Control Act, potentially the Clean Water Act, and voluntary reporting under a PFAS Voluntary Stewardship program.
The Lawsuit—Important Indicators for the Business Community
Citizen groups as well as environmental organizations can use the publicly accessible TRI reports to track facilities with reportable releases. According to the Complaint, environmental groups are concerned enough about PFAS releases that they file a lawsuit to obtain more disclosure and information about facilities releasing and using PFAS. This suggests that these groups may subsequently focus on TRI under-reporting or seek to use the reported releases to bring greater scrutiny on EPA’s oversight, or the individual facilities that have reported a release. For example, the Complaint notes that 2020 was the first reporting cycle for statutorily listed PFAS, with 172 PFAS chemicals subject to reporting for that period, but only thirty-nine facilities in the United States reported to have “manufactured, processed, or used” one of these 172 chemicals above the reporting threshold.4 The Complaint also alleges that “only twenty facilities in the nation reported releases of TRI-listed PFAS in 2020, with those that did report listing low volumes of PFAS releases.” This suggests that the groups believe that PFAS releases were under-reported in 2020.
The Complaint also asserts a connection between PFAS chemical and a number health concerns. It also highlights their prevalence in consumer and industry products, as well firefighting foam (commonly referred as aqueous film forming Foam, or AFFF). Although there are thousands upon thousands of PFAS chemicals and the scientific evidence regarding them varies, the Complaint treats the PFAS chemical as one group, without making distinctions about the PFAS involved, or taking into consideration the different science and health analysis for each PFAS.
Take-aways
TRI will continue to be a regulatory and litigation focus for PFAS release reporting. Effective PFAS chemical monitoring and stewardship should be established by companies to prepare for these new requirements.
1The 2020 NDAA established a framework for adding four additional PFAS to the TRI. The Toxics Release Inventory “tracks the management of certain toxic chemicals that may pose a threat to human health and the environment.” Information submitted by regulated facilities “helps support informed decision-making by companies, government agencies, non-governmental organizations and the public.” Check out the Toxics Release Intake Inventory. EPA, https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory.
2See NDAA Section 7321.
3See NDAASection 7321(c(1)(A). These triggers include the dates on which a final toxicity value is determined, a significant new use rule is established, or other “covered determinations” are made, such as the addition of a PFAS to the Toxic Substances Control Act.
4This complaint is based upon final data released by EPA on October 2021.