Given today's incessant media coverage and regulatory attention to PFAS (per- and polyfluoroalkyl substances), and their widespread presence in a host of products, it may seem surprising at first that the recently published 2021 Toxic Release Inventory ("TRI") preliminary data on PFAS is so limited. 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. However, EPA is poised to expand dramatically the scope of facilities likely to file TRI reports for PFAS in coming years.
This is the second year that PFAS, known more colloquially as the "forever chemicals" due to their persistence and years-long degradation process, have made an appearance on the TRI, a publicly available database containing information on toxic chemical and waste management activities in the U.S. Their inclusion is relatively new, only being added to the TRI by the 2020 National Defense Authorization Act ("NDAA").
The information filed for 2021 indicate that the 45 facilities managed over 1.3 million pounds of production-related PFAS waste during the year. These numbers seem odd given that approximately 650 PFAS are currently in commerce (though only 172 are subject to TRI reporting) from about 120,000 facilities that involve merely the handling and/or potential release of PFAS. Though you should seldom trust your lawyers with math, we can confidently say here that these numbers are just not adding up.
The explanation for this gap, though, is simple. The rules allow facilities to disregard certain levels of listed toxic chemicals in mixtures or products that they use. Under this aptly named "de minimis" exception, facilities are not required to report to the TRI certain minimal concentrations of chemicals in the materials they process. Though PFAS are persistent, their quantities in products are often below the de minimis reporting threshold.
EPA has signaled on several different occasions that they intend to eliminate the de minimis exception for PFAS in a forthcoming rulemaking. First, in the Agency's October 2021 PFAS Strategic Roadmap, EPA stated its intent to categorize PFAS as a "Chemical of Special Concern," thereby removing its eligibility for de minimis status. Just a few months ago, EPA signaled how it might go about doing that. When EPA published the 2021 TRI dataset last week, it again indicated that it "plans to enhance PFAS reporting under the TRI by proposing a rulemaking this fall that would, among other changes, remove the eligibility of the de minimis exemption for PFAS. If finalized, this proposal would also make unavailable the de minimis exemption with regard to providing supplier notifications to downstream facilities for PFAS and certain other TRI chemicals." Just three weeks ago, EPA added five new PFAS to the TRI as well.
Indeed, the heat is on for EPA to act on PFAS. The Agency is making $1 billion available in grant funding to help communities struggling with PFAS contamination, and has recently updated its Health Advisories on four PFAS chemicals commonly found in drinking water, food packaging and cosmetics. That money comes from the Infrastructure Investments and Jobs Act, which in total, authorizes $5 billion for the Agency to reduce PFAS in environmental justice communities. This newfound financial support, combined with Congressional interest and widespread public scrutiny, all support the Agency's move towards expanding PFAS reporting requirements and, more generally, the Agency's aggressive stance towards mitigating PFAS.
It certainly appears that the days of PFAS eligibility under the de minimis exception are coming to a close. And, with that, we can expect a dramatically expanded TRI report in coming years.
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