Environmental Groups Push for Broader PFAS Disclosure Requirements Under EPCRA

• The De Minimis Exemption. A facility is not required to report a TRI-listed chemical when it is used as part of a chemical mixture in low concentrations: less than 1% if it is not a carcinogen, and less than 0.1% if it is.
• The Alternate Threshold Exemption. This allows a facility to use an alternate reporting threshold of one million pounds per year of a TRI-listed chemical if it certifies that its reportable releases and disposals of the chemical were 500 pounds or less combined.

The Complaint may have little practical effect as EPA has already stated that it plans to initiate a rulemaking process to expand TRI reporting for PFAS and to 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 the 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. Congress directed EPA to determine within five years whether to revise this threshold.² The NDAA also established a framework for listing additional PFAS on an annual basis, providing specific triggers that require additional PFAS to be added to the TRI when certain circumstances are met.³

Not all chemicals on the TRI are treated equally. 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. In its PFAS rules, EPA did not classify the 175 newly listed PFAS as chemicals of special concern, meaning that the two regulatory exemptions outlined above 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 minimis and alternate threshold exemptions available to the newly listed PFAS. The environmental groups allege that EPA violated the intent of the 2020 NDAA because Congress did not explicitly direct EPA to make the PFAS reporting subject to the two exemptions in the law, and that EPCRA gives EPA limited authority to apply 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 in its PFAS Strategic Roadmap that it intends to propose a rulemaking in 2022 categorizing the PFAS as TRI chemicals of special concern and to remove the de minimis exemption eligibility for these chemicals, though the Roadmap does not mention plans for whether the alternate threshold exemption would be removed. Other reporting requirements are also expected in 2022 under the Toxic Substances Control Act and potentially the Clean Water Act, as well as voluntary reporting under a PFAS Voluntary Stewardship Program.

The Lawsuit—Important Indicators for the Business Community

Environmental organizations and citizen groups can use the publicly available TRI reports to track facilities that have reportable releases. The allegations in the Complaint indicate that environmental groups care enough about PFAS releases to file a lawsuit seeking to have greater disclosure, and therefore more information about facilities using and releasing 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 ties between PFAS chemicals and a number of health concerns, while also emphasizing their prevalence in consumer and industrial products, as well as firefighting foam (commonly, aqueous film forming foam, or AFFF). While there are thousands of different PFAS chemicals and, presently, the scientific evidence regarding their health effects varies, the Complaint treats PFAS chemicals as a single collective group without distinguishing about the specific PFAS involved or being mindful of the different science and health analyses for the different PFAS.

Takeaways

PFAS release reporting under TRI will continue to be a litigation and regulatory focus. Companies should plan now to put in place effective PFAS chemical monitoring, stewardship and use practices to prepare for these new demands.

For more information about PFAS and regular updates on these developments, see our PFAS Capabilities page, or contact a member of the V&E PFAS Taskforce.

The PFAS Taskforce

V&E’s PFAS Taskforce is dedicated to helping our clients navigate the emerging and complex law and regulations that may be used to address PFAS and related chemicals. By actively tracking and analyzing the different federal and state regulatory approaches to addressing PFAS — whether in water, groundwater, soil, and air — and engaging with the evolving scientific understanding of PFAS substances, we can help our clients build short- and long-term strategies to address potential liability, remediation, and litigation concerns regarding these emerging contaminants. Drawing upon the significant capabilities in our cross-office environmental team, V&E’s PFAS Taskforce is on hand to provide practical and tailored guidance for our clients as they prepare for the shifting PFAS landscape.

¹ In 2021, four additional PFAS were automatically added to the TRI under the framework established by the 2020 NDAA. 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.” See What is the Toxics Release Inventory? EPA, https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory.

² See NDAA Section 7321.

³ See NDAA Section 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.

⁴ The Complaint bases this on final data released by EPA in October 2021.