On December 5, 2022, the United States Environmental Protection Agency (USEPA) proposed a rule eliminating an exemption that currently allows facilities to avoid reporting the use of small concentrations of Per- and polyfluoroalkyl substances (PFAS).
PFAS chemicals, commonly referred to as “forever chemicals” due to their longevity, are commonly used in consumer products and industrial processes. The Biden administration has prioritized addressing PFAS as they apply to public health, as outlined in the USEPA’s PFAS Strategic Roadmap released in October 2021. That roadmap sets forth timelines by which the USEPA intends to act on various policies impacting public health, the environment, and accountability.
The 2020 National Defense Authorization Act (NDAA) added certain PFAS to the list of chemicals covered by the Toxics Release Inventory (TRI) for the 2021 reporting year. Under the current provisions, however, facilities that report to the TRI can disregard de minimis concentrations of TRI-listed PFAS in mixtures or trade name products (below 1% concentration, except for Perfluorooctanoic acid which is set at 0.1%).
The USEPA’s action follows a press release from earlier this year wherein the Agency expressed concern at the low number of reporting facilities, seemingly as a result of the existing exemption. The current proposal will add PFAS subject to reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) to the list of Lower Thresholds for Chemicals of Special Concern, eliminating the de minimis reporting exemption. Due to the low concentration of PFAS used in many products, the USEPA contends removing the existing “reporting loophole” will increase data collected for PFAS, thereby providing a clearer picture of PFAS releases and waste management quantities.
The proposal will also remove the de minimis exemption for purposes of the Supplier Notification Requirements for all listed Chemicals of Special Concern, which includes chemicals like lead and mercury. The USEPA states that doing so will ensure purchasers are informed of the presence of these chemicals in the products they purchase.
Parties that may be impacted by the proposal are those who manufacture, process, or otherwise use listed PFAS or any chemicals listed under 40 CFR 372.28. Anyone wishing to comment on the proposal must submit comments by February 2, 2023 through the Federal eRulemaking Portal using docket identification number EPA–HQ–TRI–2022–0270.
In related news, the USEPA on December 6, 2022 released a guidance memorandum providing states with directions on how to use the National Pollutant Discharge Elimination System (NPDES) permit program to protect against PFAS. According to the USEPA’s press release, the guidance “recommends that states use the most current sampling and analysis methods in their NPDES programs to identify known or suspected sources of PFAS and to take actions using their pretreatment and permitting authorities, such as imposing technology-based limits on sources of PFAS discharges.”
We will continue to monitor these and other federal PFAS developments on the Corporate Environmental Lawyer blog.