EPA Is Sued Over “Secrecy Loopholes” in PFAS Reporting Requirements | Levin Papantonio Rafferty - Personal Injury Law Firm

EPA Is Sued Over “Secrecy Loopholes” in PFAS Reporting Requirements

Last week, advocacy groups (Union of Concerned Scientists, Sierra Club, and National PFAS Contamination Coalition) slapped the U.S. Environmental Protection Agency (EPA) with a lawsuit alleging that the agency crafted exemptions that help manufacturers dodge the EPA’s toxics release inventory (TRI) reporting requirements.

When a chemical appears in the EPA’s TRI, releases of the chemical must be reported by companies that manufacture, process, or use at least 45kg of the substance per year. The 2020 National Defense Authorization Act ushered in the addition of PFAS to the TRI. As a result, as of May 2020, 172 PFAS are now subject to the agency’s reporting requirement.

Enter the Loophole

When the EPA added three more PFAS to the TRI last year, the agency slated the chemicals to a TRI section that exempts businesses from having to report releases of the toxic substances. Companies can take advantage of this loophole in either of the following circumstances:

  1. If the PFAS exists within a mixture and in maximum concentrations of one percent (the de minimis exemption)
  2. If the amount of PFAS involved is less than 454,000 per year, and less than 227 kg or less of the chemicals are released and disposed of.

Earthjustice analyzed the EPA’s first PFAS release report only to find that a mere 39 facilities had filed TRI reports. In the 2021 report, the EPA acknowledged that the TRI loopholes “significantly limited the amount of data that EPA received.”

According to the EPA, it plans to blot out the de minimis exemption for PFAS in 2022. Unfortunately for the agency, it’s too little too late.

The slow-moving machinery for such a rule change would mean that the public would not be privy to PFAS data until 2025. Plaintiffs hope that a court will render the rule gaps illegal in 2022 so that more robust and accurate reporting could begin in January 2023.

Meanwhile, Back in December…

The EPA lawsuit comes on the heels of what had been a promising close to 2021 for PFAS-concerned groups. In late December 2021, a half dozen North Carolina environmental health groups scored a partial victory in their quest to uncover the harmful effects of “forever chemicals.” The U.S. EPA announced it was compelling The Chemours Co. to release toxicity data for 24 categories of PFAS.

The agency’s action granted the request of petitioners who allege that the global chemistry company discharged PFAS into the Cape Fear River watershed. More than a year has passed since the groups petitioned the EPA to demand data showing the toxicity and human health risks of 54 per- and polyfluoroalkyl substances (PFAS).

National PFAS Testing Strategy

An EPA press release also referenced its plants to advance a National PFAS Testing Strategy. This plan involves breaking down an otherwise overwhelming number (thousands) of PFAS into smaller categories of chemicals with similar characteristics. To date, there is no (or limited) data on the hundreds of PFAS in use across industries today.

“Communities in North Carolina and across the country deserve to know the potential risks that exposure to PFAS pose to families and children,” EPA Administrator Michael S. Regan is quoted as saying in the agency’s release. “By taking action on this petition, EPA will have a better understanding of the risks from PFAS pollution so we can do more to protect people. This data will also help us identify the sources of pollution so we can hold those accountable for endangering the public.