Earlier today, the U.S. Environmental Protection Agency
("EPA") finalized elimination of the de minimis
exemption for reporting of per- and polyfluoroalkyl substances
("PFAS") under the Toxic Release Inventory
("TRI"). EPA is officially designating PFAS as Chemicals
of Special Concern, for which the de minimis exemption is
not applicable and, therefore, tracking and reporting of small
concentrations in mixtures and products used at facilities is
required.
The de minimis exemption allows facilities to ignore
negligible amounts of substances in chemical mixtures when present
at concentrations below 1% (or 0.1% for carcinogens) in the
materials they process or otherwise use in their manufacturing
process. While PFAS are widely present in numerous products and
chemical mixtures due to their heat-, water- and stain-resistant
qualities, typically they are present at very low concentrations.
As a result, as we have discussed previously, only a
relatively small number of TRI reports for PFAS have been filed
with the agency in recent years. Indeed, out of the 75,890 total
entries reported to TRI for all chemicals in 2021 (from
approximately 21,000 facilities), EPA received a mere 92 PFAS reporting forms on 46
different PFAS from 45 facilities. In contrast, there are
approximately 650 PFAS are currently in commerce from about
120,000 facilities that involve merely the
handling and/or potential release of PFAS.
The final rule also makes the de minimis exemption
unavailable for purposes of supplier notification requirements to
downstream facilities for all Chemicals of Special
Concern, which in addition to PFAS includes a number of persistent,
bioaccumulative and toxic ("PBT") chemicals such as lead,
mercury, and dioxins. EPA contends that the change will help
"ensure that purchasers of mixtures and trade name products
containing these chemicals are informed of their presence in
mixtures and products they purchase." Critics contend however,
that this change – particularly for lead, which is naturally
occurring and widely present in the environment and raw materials
– will dramatically expand the universe of materials for
which downstream facilities must track the usage, disposal, and
lead content, adding millions of hours to the already
labor-intensive reporting burden.
When EPA proposed to eliminate the de minimis exemption,
the Agency received mixed feedback. EPA and several environmental
organizations argue that the exemption is a "reporting
loophole" allowing facilities to avoid reporting listed
chemicals, thereby diminishing public trust, reducing transparency,
and keeping community members in the dark about chemicals they
believe to be hazardous to human health. Industry stakeholders, on
the other hand, contend that the de minimis exemption
makes the TRI program dramatically more workable by limiting the
scope of substances for which reporting is required. Moreover, the
exemption is pragmatic and tries to avoid forcing companies to hunt
for information on miniscule amounts of substances present in trace
quantities that ultimately pose little to no risk.
Interestingly, EPA's decision to scale back the exemption to
the TRI reporting requirement, and thus open the PFAS reporting
floodgates, coincides with the Agency's issuance of a final Toxic Substances Control Act
("TSCA") rule that similarly requires companies to
electronically disclose to EPA information on PFAS uses, production
volumes, disposal, exposures, and hazards, dating all the way back
to 2011. Together, these two rules will dramatically expand the
amount of regulatory reporting industry will conduct related to
PFAS.
The new TRI requirements apply starting with the 2024 reporting
year (reports due July 1, 2025). A copy of the final rule is
available here: Changes to Reporting Requirements for Per- and
Polyfluoroalkyl Substances and to Supplier Notifications for
Chemicals of Special Concern; Community Right-to-Know Toxic
Chemical Release Reporting."
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