Given that PFAS are often used in small concentrations and in a wide variety of products, elimination of the de minimis exemptions could be particularly challenging for manufacturers that were not previously subject to EPCRA reporting or notification requirements.
On December 5, 2022, the U.S. Environmental Protection Agency (EPA) published a proposed rule to add all per- and polyfluoroalkyl substances (PFAS) subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) to the list of chemicals of special concern. The addition of PFAS to the list of chemicals of special concern will subject them to the same, more burdensome reporting requirements as other chemicals of special concern, including eliminating availability of the de minimis exemption for purposes of calculating reporting thresholds. In addition, EPA is proposing to eliminate the availability of the de minimis exemption under the supplier notification requirements for all chemicals of special concern, meaning suppliers of such chemicals may be required to make additional notifications to purchasers and downstream manufacturers. Companies that fail to comply with EPCRA reporting violations may face civil penalties, including monetary fines.
PFAS are a large, complex group of synthetic chemicals that have been widely used in a variety of consumer and industrial products since the 1940s to, among other things, impart water, heat and stain resistance. PFAS have been used in everyday products like clothing, carpets, furniture fabrics, paper and food packaging, cosmetics, cleaning products, paint, cookware and electronic components. Given that PFAS are often used in small concentrations and in a wide variety of products, elimination of the de minimis exemptions could be particularly challenging for manufacturers that were not previously subject to EPCRA reporting or notification requirements. Additionally, since PFAS may be present as part of a proprietary mixture, many product manufacturers may not be aware that their products contain PFAS, making the first year of reporting a particular challenge.
EPCRA Section 313, also known as the Toxics Release Inventory (TRI), requires certain facilities that manufacture, process or otherwise use any chemicals listed under 40 CFR 372.28 in amounts above reporting thresholds to report the environmental releases and other waste management quantities of such chemicals annually. The National Defense Authorization Act (NDAA) for fiscal year 2020 added over 170 PFAS to the list of chemicals required to be reported by the TRI and required additional PFAS to be added on an annual basis. Currently, there are 180 PFAS required to be reported under the TRI.
The EPA is now proposing to add all 180 PFAS (plus PFAS that may be added to TRI by specific sections of the NDAA in the future) to the list of chemicals of special concern. The list includes chemicals classified as persistent, bioaccumulative and toxic, such as mercury, lead, dioxin and polychlorinated biphenyls. Under the TRI, chemicals of special concern are subject to more burdensome reporting requirements. For example, they have lower reporting thresholds (either 10 or 100 pounds), are excluded from the de minimis exemption for calculating threshold quantities, may not be reported on Form A (Alternate Threshold Certification Statement) and have limits on the use of “range reporting” (i.e., estimating concentrations between high and low ranges). PFAS are already subject to a lower reporting threshold of 100 pounds, as established by the NDAA. But under the proposed rule, facilities manufacturing, processing or otherwise using PFAS would now be subject to the remaining, more burdensome reporting requirements applicable to chemicals of special concern. EPA states that the proposed rule “will result in a more complete picture of the releases and waste management quantities for these PFAS.”
Importantly, the de minimis exemption allows facilities to disregard small concentrations of PFAS in mixtures or other trade name products they use in making threshold determinations (i.e., facilities need not include mixtures and products containing small amounts of PFAS in calculating whether the facility meets the PFAS reporting threshold of 100 pounds). Because PFAS tend to be used in a wide variety of products in small quantities, the EPA believes that significant quantities of PFAS have gone unreported because of the de minimis exemption. The proposed rule would eliminate this exemption for PFAS, requiring facilities to make detailed calculations concerning the amount of PFAS in in their products—information that may not be readily available or calculable, especially in the first year of reporting.
EPA is also proposing to remove the availability of the de minimis exemption for purposes of the supplier notification requirements for all chemicals of special concern—an exemption historically available to manufacturers of these chemicals since EPA announced the initial TRI reporting rule in 1988. Similar to the de minimis exemption for calculating threshold amounts, the de minimis exemption to the supplier notification requirements allows suppliers to omit notifications for mixtures or trade name products containing small concentrations of chemicals that are subject to the TRI. Removing this exemption will impose additional notification requirements on suppliers of products containing chemicals of special concern in small concentrations and require these suppliers to make revisions to product safety data sheets. In turn, downstream manufacturers that receive these revised notifications will need to reevaluate their own reporting obligations under TRI. EPA believes this proposed change will help ensure that purchasers of mixtures and trade name products containing such chemicals are fully informed of their presence in mixtures and products they purchase.
All facilities that meet TRI reporting criteria must submit the required data to EPA or the relevant state or tribe by July 1 each year. Companies that fail to file timely, accurate TRI reports risk being assessed civil penalties, including monetary fines, and may be required to correct the violation. In August 2022, one company agreed to pay a penalty of over $1.7 million for various TRI reporting violations, representing the largest EPCRA penalty ever obtained by EPA.
All suppliers, manufacturers and users of chemicals of special concern should review their usage of these chemicals and begin evaluating the impact of these proposed changes. The proposed rule was published in the December 5, 2022, Federal Register (87 FR 74379) and is available on the EPA website. Comments must be received on or before February 3, 2023.
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Duane Morris has a dedicated group of professionals who continue to monitor, analyze and counsel clients on various aspects of PFAS, including companies who are developing technology to capture and eradicate PFAS from water and solids. Our attorneys can assist clients in evaluating the impact of EPA’s proposed changes and drafting comments to the proposed rule.
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