EPA Offers Guidance on PFAS Reporting Under the Toxics Release Inventory Program During Uncertain Times

While U.S. EPA recently announced in a March 26, 2020 memo that it will temporarily suspend enforcement of certain routine monitoring and reporting violations due to COVID-19, EPA’s memo does not amount to a “free pass” for businesses to voluntarily discontinue compliance monitoring and reporting. On the contrary, increased scrutiny over the use of Per- and Polyfluoroalkyl Substances (PFAS) means businesses must evaluate and prepare to comply with the new monitoring and recordkeeping requirements under the Toxics Release Inventory (TRI) for certain PFAS. On April 16, 2020, EPA offered long-awaited preliminary guidance to regulated facilities subject to TRI reporting for PFAS.

Background on TRI Reporting

Environmental professionals are likely familiar with the TRI chemical reporting requirements. Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) imposes reporting requirements on certain facilities that manufacture, process, or otherwise use a listed toxic chemical above the relevant threshold quantity. Facilities within certain industry sectors must report each year how much of each reportable chemical used is released to the environment and/or managed through recycling, energy recovery, and treatment. Commencing with the 2020 reporting year, the list of reportable chemicals under TRI includes 172 different PFAS, a class of thousands of chemicals known for both their prevalence and persistence in the environment. Recordkeeping and reporting under the TRI has become exceedingly more complicated with the hurdles created by COVID-19 and the addition of the 172 PFAS to the TRI list of chemicals. Coupled with the increased public awareness of PFAS and attention by public interest groups, accurately documenting PFAS releases in TRI reporting presents a challenge.

Addition of PFAS to the TRI Chemical Reporting List

Under Title LXXIII of the National Defense Authorization Act (NDAA), also known as the PFAS Act of 2019, certain PFAS were added to the TRI chemical reporting list. Possibly signaling its frustration with the lack of progress by EPA, Congress’ decision to amend EPCRA through the NDAA was curious, as EPA had issued an Advance Notice of Proposed Rulemaking (ANPR) just a few weeks prior seeking public comment on whether and how to include PFAS in the TRI inventory. While the NDAA specified 14 PFAS for addition to the list, the NDAA required EPA to add other PFAS if they met certain criteria. Ultimately, on February 19, 2020, the list was expanded to include 172 different PFAS chemicals requiring reporting under the TRI. The updated list can be accessed here. In addition, the NDAA implemented a framework to automatically add new PFAS to the TRI chemical list whenever EPA: (1) finalizes a toxicity value for a PFAS; (2) finalizes a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) for a PFAS; (3) adds a PFAS to an existing SNUR; or (4) designates a PFAS as active in commerce on the TSCA Inventory. Finally, the NDAA also established a reporting threshold for each individual PFAS of 100 pounds.

Accordingly, businesses falling within applicable industry sectors that manufacture, process, or use 100 pounds or more per year of any of the 172 listed PFAS chemicals must include those chemicals in its annual TRI report, known as a Form R report. The inaugural Form R report detailing use of PFAS during calendar year 2020 is due by July 1, 2021. To date, EPA has not issued any subsequent updates to the list released on February 19, 2020.

1. Challenges Facing Reporting Facilities

Even in the absence of COVID-19, TRI reporting presents numerous challenges for manufacturers, processors, and users of PFAS attempting to quantify their inventories largely due to the absence of reliable testing methodologies and established technical resources. Analytical techniques for most environmental media except drinking water, including soil, sediment, fish tissue, and biosolids, are not expected to be validated by EPA until at least 2021.^[1] Air emissions will be particularly difficult to quantify given EPA lacks a clear methodology for measuring PFAS emissions. To develop TRI estimates, EPA expects that facilities use “the best readily available data (including monitoring data) to prepare the report—where such data are not readily available, reasonable estimates of the amounts involved must be used.”^[2] Because validated methodologies to measure PFAS releases are still being developed, reporting facilities may be unable to obtain dependable “readily available data” from supply records or waste manifests, or confidently sample, calculate, and report on chemical inventories. Further, without an extensive library of technical resources regarding product concentrations and analytical protocols to draw from, reporting entities may lack certainty that they are developing technically sound release estimates.

2. New EPA Guidance on TRI Reporting

Recognizing the uncertainties that lay ahead for reporting facilities, EPA hosted a webinar on April 16, 2020 to provide an overview of TRI reporting and information related to the recent additions of 172 PFAS to the TRI chemical list. While much of the webinar was dedicated to the basics of TRI reporting, EPA offered several noteworthy insights specific to PFAS:

• For determining threshold requirements, EPA advised that Safety Data Sheets (SDS) should be considered a primary source of information. Suppliers of mixtures or trade name products are required to provide written notification to covered facilities of TRI regulated products under 40 C.F.R. § 372.45. The regulatory information section of the SDS should contain data on the regulated constituents.
• The 172 PFAS added to the list of reportable chemicals were not classified by EPA as Persistent Bioaccumulative Toxic (PBT) compounds. Therefore, very low concentrations of PFAS may be eligible for the de minimis The de minimis concentration for Perfluorooctanoic acid (PFOA) is 0.1%. All of the other PFAS additions have a de minimis level of 1%.                                                                                             
• EPA clarified that the 100-pound threshold applies for each individual PFAS, and not to the class of PFAS chemicals as a whole.
• EPA made a preliminary determination that aqueous film forming foams (AFFF) containing PFAS, which are maintained by facilities for use in fire suppression systems, would not require TRI reporting until the system is actually used in training or emergency action. Accordingly, the mere storage of AFFF onsite as part of a fire suppression system would not require reporting under the TRI. EPA indicated that they would internally verify this interpretation for regulated facilities and offer a final determination at a later date.

Although many industry-specific questions were unanswered, for example, measuring air emissions or utilizing air emission factors, EPA did not indicate any specific plans to release future guidance. Instead, EPA advised that the regulated community should refer to previously issued guidance and Q&A documents on TRI reporting to address questions regarding PFAS reporting. EPA further declined to offer any interpretations of the applicability of the COVID-19 memo to TRI reporting except that all determinations would be made on a case-by-case basis.

TRI Reporting under the COVID-19 Compliance Assurance Memo

On March 26, 2020, EPA announced a temporary policy easing enforcement of limited compliance violations due to COVID-19. Winston & Strawn’s client briefing on the release of EPA’s memo can be found here. Under the COVID-19 compliance assurance memo, EPA stated that “it does not expect” to seek penalties for violations of routine compliance monitoring or reporting if those facilities can demonstrate with qualifying documentation the violation was caused by COVID-19. Missed monitoring or reporting requirements applicable to intervals of less than three months will not need to be made up. Once the temporary policy is terminated, EPA expects that facilities with annual reporting obligations, such as those required under the TRI program, will “take reasonable measures to resume compliance activities as soon as possible,” including submitting late reports. Accordingly, the temporary relaxation of enforcement action is fairly limited in scope and does not affirmatively bar EPA from retroactively imposing penalties or any criminal enforcement for knowing violations.

EPA’s memo specifically identifies delayed TRI reporting as an example of the routine reporting noncompliance contemplated by EPA’s temporary policy. While a facility may be afforded relief by EPA for a COVID-19-related delay in a Form R report, the memo does not absolve a company from its responsibility to maintain accurate records of PFAS or other chemical use or include justifiable data in support of TRI estimates. EPA requires adequate documentation evidencing a reasonable COVID-19 claim to qualify for potential protections afforded by EPA’s policy, which remains within EPA’s sole discretion. Enforcement and civil penalties may await those facilities that fail to submit a Form R report or submit an incomplete or inaccurate report.

Facilities seeking a safe haven for TRI-related compliance issues under the EPA memo should recognize its inherent jurisdictional limitation, as EPA’s decision whether to invoke its enforcement discretion has no bearing on state and tribal enforcement or third-party citizen suits. By voluntarily withholding its enforcement discretion, EPA may be jeopardizing its right to “diligent prosecution” and ability to supersede citizen suits, potentially opening the door to a wave of third-party-initiated actions. Public interest groups are frustrated by the current administration’s deregulatory agenda and have signaled their willingness to fill the void. For example, as we discussed in a previous blog posting, an environmental watchdog group, the Environmental Working Group (EWG), recently released a list of facilities it believes are releasing PFAS into the environment. Readers of the report will discover that EWG relied on questionable methodologies, but reports like these should be a warning that public interest groups remain vigilant, particularly regarding emerging contaminants such as PFAS.

What Happens Now?

• Evaluate your facility’s operations for any use of the 172 listed PFAS, particularly in chemical ingredients and safety data sheets. Even facilities that believe they are using only de minimis levels may exceed the 100-pound threshold over the course of a year. Collect data to determine quantities used and whether reporting is required. As EPA stressed during its April 16^th webinar, document your review and method used to reach your conclusion. If you have questions regarding the legal sufficiency of your chemical threshold determination, contact a Winston & Strawn attorney for assistance.
• In addition to evaluating chemical inputs, consider whether operations create PFAS as a byproduct. TRI reporting requires analysis of potential sources that result in a release or waste management activities, including air emissions and manufacturing, which includes generation of a byproduct in waste.
• Several factors may complicate a facility’s reliance on SDS to quantify PFAS inventories. First, suppliers of mixtures containing PFAS below de minimis concentrations may not include such information in the SDS. Further, identifying specific PFAS constituents in an SDS can be difficult because specific PFAS compounds may not be explicitly listed. Some manufacturers may refer to PFAS compounds generically as “proprietary fluorosurfactant.” In addition, some products may contain fluorinated precursors that could be degraded or otherwise create PFAS under certain conditions. Consider requesting additional information from the manufacturer if the SDS does not clearly describe PFAS contents. In addition, certain materials can be independently tested to verify PFAS compounds.
• Expect increased scrutiny of a facility’s TRI reporting given the increased public awareness of PFAS. TRI reports are made publically available by EPA and routinely reviewed by public interest groups and plaintiff’s litigation firms. Facilities should be prepared to address questions that may be received from the media, citizen groups or neighbors in your local communities.
• Consider the risk of enforcement even while EPA’s temporary COVID-19 policy is in effect. In the event enforcement is pursued while the policy is in effect, EPA still requires supporting documentation to justify a facility’s inability to monitor PFAS is in fact due to COVID-19 related complications.
• Document if your facility is required by permit or law to monitor PFAS use, and such monitoring is disrupted by COVID-19, including the specific nature and dates of the noncompliance and the actions and specific steps taken in response.
• Remain apprised of your facility’s future PFAS chemical use. The current PFAS list is expected to grow. Future additions to the TRI list will be required when EPA develops a toxicity value for PFAS, adds or finalizes a SNUR, or designates a PFAS as active on the TSCA inventory. In the ANPR, EPA estimated that approximately 600 different PFAS are currently active in U.S. commerce ^[3] EPA has not indicated when or if the additional PFAS will be added to the TRI.
• Follow Winston & Strawn’s regulatory updates on this subject to stay apprised of PFAS related developments, including an upcoming webinar and look for supplemental guidance from EPA with additional direction to navigate PFAS reporting under the TRI.

We note that government orders on the local, state, and federal level are changing every day, and the information contained herein is accurate only as of the date set forth above.

Please do not hesitate to contact Eleni Kouimelis (312-558-5133, ekouimel@winston.com), Stephanie Sebor (312-558-7341, ssebor@winston.com), Matt Walker (312-559-7514 mawalker@winston.com) or your Winston relationship attorney if you have any questions. We will continue to provide updates as the situation evolves.

View all of our COVID-19 perspectives here. Contact a member of our COVID-19 Legal Task Force here.

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^[1] EPA Technical Brief, Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Methods and Guidance for Sampling and Analyzing Water and Other Environmental Media (January 2020), https://www.epa.gov/sites/production/files/2020-01/documents/pfas_methods-sampling_tech_brief_7jan2020-update.pdf

^[2] U.S. EPA EPCRA Section 313 Industry Guidance for Chemical Distribution Facilities, dated January 1999

^[3] 84 Fed. Reg. at 66,371.