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EPA Gets Serious on PFAS, Plans to Remove De Minimis Exemption

April 14, 2022, 8:00 AM

The Environmental Protection Agency’s 2020 Toxics Release Inventory (TRI) National Analysis includes data on the first reporting for per- and polyfluoroalkyl substances (PFAS). In connection with the analysis, the EPA announced that it was concerned by the “seemingly limited scope of PFAS reporting” and that it intends to remove the de minimis exemption for reporting PFAS.

The announcement indicates that the agency is paying close attention to how facilities report releases of PFAS and will continue to make PFAS a top priority.

PFAS are a group of man-made chemicals that have been in use since the 1940s. PFAS have been found in a wide array of consumer products such as cookware, food packaging, and stain and water repellents used in fabrics, carpets, and outerwear.

Addition of PFAS to the TRI

The National Defense Authorization Act for Fiscal Year 2020 immediately added 172 PFAS substances to the list of chemicals covered by the TRI under Section 313 of the Emergency Planning and Community Right-to-Know Act and provided a framework for additional PFAS to be added to the TRI annually.

The TRI tracks the management of certain toxic chemicals that may pose a threat to human health and the environment. Facilities in different sectors must report annually how much of each chemical 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. The information submitted by facilities is compiled in the TRI.

In general, chemicals covered by the TRI program are those that cause (1) cancer or other chronic human health effects, (2) significant adverse acute human health effects, and (3) significant adverse environmental effects. Facilities that manufacture, process, or otherwise use these chemicals in amounts above established levels must submit annual reporting forms for each chemical.

TRI PFAS Reporting

Facilities reported their releases and waste management practices for the recently added PFAS for the first time for 2020. The TRI reporting threshold for these PFAS is 100 pounds, which is lower than the thresholds for most TRI chemicals.

As expected, most facilities reporting for PFAS were in the chemical manufacturing sector or the hazardous waste management sector. Other sectors included computers and electronic products, nonmetallic mineral products, and petroleum products.

Facilities reported for 43 different PFAS. The most reported PFAS were perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS) and its potassium salt, and hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt. PFOA and PFOS are the two most well-known and widely studied PFAS but have been phased out of domestic production.

Elimination of the De Minimis Exemption

In connection with the release of the 2020 TRI National Analysis, the EPA found that facilities reported managing 800,000 pounds of PFAS in 2020, but of that, only about 9,000 pounds were reported as releases.

The EPA is apparently suspicious of what it has characterized as a “seemingly limited scope of PFAS reporting” and stated that it has “used existing data to generate lists of potential producers and recipients of PFAS waste, and has contacted facilities with potential reporting errors, as well as those that were expected to report but did not.”

In light of these findings, the EPA announced that it plans to enhance reporting under the TRI by proposing a rulemaking by this summer that would, among other changes, remove the eligibility of the de minimis exemption for PFAS.

If it becomes final, this proposal would also make unavailable the de minimis exemption for providing supplier notifications to downstream TRI facilities for PFAS and persistent, bioaccumulate, and toxic chemicals.

The de minimis exemption allows facilities that report to TRI to disregard certain “minimal” concentrations of chemicals in mixtures of trade name products. The de minimis exemption applies when the quantity of a listed chemical is either (1) an OSHA-defined carcinogen present at a concentration of less than 0.1% by weight, or (2) any other listed chemical present at a concentration of less than 1% by weight.

According to the EPA, “because PFAS are used at low concentrations in many products, the elimination of the de minimis exemption will result in a more complete picture of the releases and other waste management quantities for these chemicals.”

No Surprise Here

Although the EPA’s statements indicate that the agency is paying close attention to which facilities are reporting and intends to keep PFAS a top priority, the agency’s announcement that it will remove the de minimis exemption for PFAS should not come as a surprise.

As part of the EPA’s PFAS Strategic Roadmap, which sets timelines by which the EPA plans to take specific actions on PFAS, the agency stated that the de minimis exemption for PFAS “significantly limited the amount of data that EPA received for [PFAS] in the first year of reporting.”

The EPA’s proposed regulatory action to remove the de minimis exemption for PFAS is just one piece of the agency’s larger PFAS puzzle. From proposals to set maximum contaminant levels for PFOA and PFOS to designating these substances as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, the EPA has signaled that it intends to make PFAS a top priority for the agency in the foreseeable future.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Jeffrey Dintzer is a partner in Alston & Bird’s Environmental, Land Use and Natural Resources practice group in Los Angeles.

Gregory Berlin is a senior associate in Alston & Bird’s Environmental, Land Use and Natural Resources practice group in Los Angeles.