Last week, EPA released the Agency’s 2021 Toxic Release Inventory (“TRI”) Analysis showing that only 44 facilities submitted 89 forms on their per- and polyfluoroalkyl (“PFAS”) releases and waste management, a marginal increase over the 38 facilities that submitted such data in 2020. The TRI Analysis comes on the heels of EPA’s proposed (and highly anticipated) rule to eliminate the use of the de minimis exemption for reporting on PFAS under the TRI program, the comment period for which expired on February 3rd. The de minimis exemption, a long-standing TRI policy, allows facilities to ignore minimal amounts of substances in chemical mixtures when present at concentrations below 1% (or 0.1% for carcinogens).
According to the TRI Analysis, in 2021, 44 facilities reported managing 1.3 million pounds of PFAS as waste, compared to 800,000 pounds reported in 2020. While most such waste is recycled, facilities reported 108,000 pounds in releases of PFAS containing waste, significantly more than the roughly 20,000 pounds of releases reported in 2020. Unsurprisingly, the hazardous waste management sector accounted for nearly 80 percent of these releases, primarily through regulated landfills, and the boost is largely attributable to one facility. Direct releases to the environment are a fraction of the reported numbers.
The spike in these numbers is likely attributable to updated reporting requirements required by the 2020 National Defense Authorization Act, which mandated PFAS reporting starting in 2021 (for the 2020 reporting year). Specifically, new reporting requirements under this Act included the addition of four PFAS to the list of 172 PFAS reported for 2020. EPA admits in the Analysis that the increase in PFAS managed as waste in 2021 is primarily due to reporting for one PFAS, perfluorooctyl oxide, one of the four chemicals added to the list for 2021.
In the Agency’s Press Release, EPA opines that
“Because PFAS are used at low concentrations in many products, this rule [to eliminate the de minimis exemption] would ensure covered industry sectors and federal facilities that make or use TRI-listed PFAS will no longer be able to rely on the de minimis exemption to avoid disclosing their PFAS releases and other waste management quantities for these chemicals.”
It certainly appears that EPA is poised to eliminate the exemption in its anticipated final rulemaking on the matter.
Many industry stakeholders, however, emphasize that the de minimis exemption is necessary to make the TRI program more workable in practice by limiting the need for reporting entities to hunt for information on miniscule amounts of substances that generally pose little to no risk.