Environmental Group File D.D.C. Complaint Seeking to Block Application of EPA's Toxic Release Inventory's de minimis and "Alternate Threshold" Reporting Rules to PFAS

King & Spalding

The Sierra Club, the Union of Concerned Scientists, and the National PFAS Contamination Coalition (a group comprised of thirty different environmental groups in seventeen states) filed a complaint in the United States District Court for the District of Columbia against the United States Environmental Protection Agency (“EPA”) and EPA Administrator Michael Regan challenging two EPA Toxic Release Inventory (“TRI”) rules related to PFAS reporting:

• First, the complaint challenges the applicability of the TRI’s de minimis reporting exemption to the PFAS compounds recently added to the TRI. That reporting exemption applies to TRI-listed chemicals that are part of a chemical mixture at low concentrations (less than 1% if the TRI-listed chemical is not a carcinogen, 0.1% if it is (40 C.F.R. §372.38(a))).

º Note that EPA’s PFAS Strategic Roadmap already had announced that EPA would implement rulemaking this year to include PFAS on the TRI list as “Chemicals of Special Concern” and to remove de minimis eligibility for such chemicals.

• Second, the complaint also seeks to prevent use of the “alternate threshold” reporting rule for recently added PFAS compounds. That reporting rule is available for smaller operations with an annual activity threshold no greater than 1,000,000 pounds manufactured, processed, or used, as well as an annual 500-pound limit for certain TRI-listed chemicals (40 C.F.R. §372.27(a)).

The complaint alleges that application of these exemptions to the PFAS compounds contravenes Congress’s intent as expressed in the 2020 National Defense Authorization Act, which added certain PFAS materials to the TRI and set an initial reporting threshold at a more-stringent 100 pounds without exceptions (15 USC § 8921(b)(2)(A), (c)(2)(A)).

We will be watching closely to see how Judge John Bates handles the case and whether this complaint will accelerate changes in PFAS reporting.

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