US EPA sued over gaps in PFAS release reporting

Advocacy groups are asking a federal court to force the US Environmental Protection Agency to plug what they call loopholes in two rules on reporting releases of dozens of toxic, highly persistent chemicals.

The EPA acknowledged last October that those rules have limited the ability of the public to get data on releases of per- and polyfluoroalkyl substances (PFAS) from industrial and federal facilities. Exposure to many of these synthetic chemicals is linked to cancer, hormone disruption, and cholesterol, kidney, and developmental problems. They can be toxic at very low concentrations.

"Families across the country have a right to know if a nearby chemical plant, or a military base, is dumping PFAS in the air or water,” says Eve Gartner, managing attorney for the law firm Earthjustice and the lead lawyer on the case. “EPA is allowing secrecy loopholes to protect polluters. This must stop,” she says in a statement.

The National Defense Authorization Act for Fiscal Year 2020 required the EPA add certain PFAS to the annual toxics release inventory (TRI) under the Emergency Planning and Community Right-to-Know Act. The listing of a chemical in TRI means that facilities that manufacture, process, or use at least 45 kg a year of the substance must report releases of it to the EPA. The agency then compiles and makes the information public.

A May 2020 EPA rule triggered TRI reports on releases of 172 PFAS to land, water, or air. The agency added three more PFAS to the TRI in 2021.

In their lawsuit, the advocacy groups are challenging the EPA’s decision to add those PFAS to a section of the TRI that allows companies to opt out of reporting releases of a chemical under either of two circumstances.

One is that if a TRI substance is part of a mixture and is present in concentrations of no more than 1%, facilities don’t need to report releases of the mixture. This is called the de minimis exemption.

The second situation applies when a facility makes, processes, or uses a TRI substance in amounts less than 454,000 kg per year and releases and disposes a total of 227 kg/y or less. In this case, the facility can file what the advocacy groups call a “bare-bones form” to the EPA and can omit information about environmental releases.

The EPA released the first results of PFAS release reporting late last year. The amount of PFAS that facilities reported to have manufactured, processed, used, and released was “far lower than expected” given the volume of PFAS known to be made, imported, or used in the US, according to an analysis by Earthjustice. Only 39 facilities—including 28 chemical manufacturing plants—filed TRI reports, which collectively covered 43 PFAS, Earthjustice found.

In the EPA’s October PFAS policy road map, the agency acknowledges the TRI exemptions “significantly limited the amount of data that EPA received.” The agency says it plans this year to propose a rule to remove the de minimis exemption for PFAS release reporting.

That’s not fast enough for the advocacy groups.

“If they release a proposed rule sometime in 2022, the earliest it would be finalized is sometime in 2023, meaning that reporting without the loopholes wouldn’t go into effect until 2024, meaning communities would not get that data until 2025,” Gartner tells C&EN in an email. “We believe a court can and should find these reporting loopholes are illegal this calendar year, meaning that the loophole-free reporting could start in January 2023.”

In the suit, Earthjustice is representing the Union of Concerned Scientists, Sierra Club, and National PFAS Contamination Coalition, a group of 30 organizations concerned about community drinking water sources that are contaminated with PFAS.