Litigation Over the De Minimis Concentration and Alternate Threshold Exemptions in the PFAS TRI Reporting Rules

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On January 20, 2022, the National PFAS Contamination Coalition, Sierra Club, and Union of Concerned Scientists (collectively the “Coalition”) filed a complaint in the District Court for the District of Columbia challenging two final rules promulgated by EPA related to TRI PFAS Reporting.  Specifically, the Coalition asserts that two rules violate the National Defense Authorization Act for Fiscal Year 2020 (NDAA) by allowing two exemptions to the Act’s PFAS reporting mandate — the de minimis concentration and alternate threshold exemptions.  These rules are “Implementing Statutory Addition of Certain Per- and Polyfluoroalkyl Substances; Toxic Chemical Release Reporting” (85 Fed. Reg. 37,354) and the “Implementing Statutory Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory Beginning With Reporting Year 2021” (86 Fed. Reg. 29,698) (collectively the “TRI PFAS Rules”).

According to the Coalition, allowing the de minimis exemption means that PFAS otherwise subject to the rule “will not be reported to the TRI because they are used in mixtures in low concentrations —even where the total amount of the PFAS manufactured, processed, or otherwise used is well over the 100-pound threshold set by Congress.”  The compliant further explains that the alternate threshold exemption permits covered facilities that release and disposal of less than 500 pounds per year of a TRI-listed PFAS to submit “a bare-bones certification rather than the detailed toxic chemical release form, reducing the information disclosed to the public.”

Adopting these rules without allowing for notice and opportunity for comment, promulgation violated the notice and comment provisions of the Administrative Procedure Act, according to the Coalition.  The Coalition further asserts that the NDAA did not authorize EPA to allow an exemption for de minimis concentrations.  Nor, according to the Coalition, does the NDAA allow for alternate threshold exemptions.  The Coalition argues that “the TRI PFAS Rules are also arbitrary and capricious because they are premised on the idea that communities do not need to know about releases of small amounts of toxic chemicals, or even releases of large amounts where the chemical of concern is present in low concentrations, flouting evidence that exposure to even extremely low levels of PFAS is dangerous.”

The complaint argues that Plaintiffs’ members are deprived of critical information by the de minimis concentration and alternate threshold exemptions.   According to the Coalition, the exemptions deprive Plaintiffs of knowledge about the toxic air and water pollution that they and their families are exposed to, which impairs their ability to advocate for stronger protections from that pollution.  The absence of these data also impairs Plaintiff’s ability to “conduct the research and analysis needed to inform communities and guide policy development.”

As previously posted, EPA complied a roadmap outlining key actions and commitments on PFAS for 2024.  This roadmap states that EPA intends to propose a rulemaking in 2022 to remove the “de minimis eligibility” from supplier notification requirements for Chemicals of Special Concern for TRI reporting, and categorize PFAS as such.

Recent State Activity on PFAS Regulation

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Since January 2022, many states have passed and proposed dozens of laws regulating PFAS substances.  These legislative efforts address topics including setting drinking water standards for PFAS, banning PFAS in consumer products, banning or restricting the use of firefighting foams containing PFAS, and adding PFAS substances to toxic and hazardous substances lists.

Virginia and Washington will soon adopt regulations establishing maximum contaminant levels for drinking water.  Indiana and Rhode Island have also proposed doing so.  California is considering legislation that would establish a Central Basin Communities water fund that would, in-part, offset treatment costs of PFAS-contaminated public water systems.

Minnesota, California, and Rhode Island have proposed legislation that would ban the use of PFAS in consumer products.  Products that would be subject to these bans range from cosmetics and cookware to carpets and clothing.

Arkansas, California, Illinois, Maine, and Louisiana have passed laws banning or restricting the use of firefighting foams containing PFAS.  Rhode Island and Ohio have proposed legislation that would restrict the use of firefighting foams.

Minnesota has added PFAS substances to its list of Toxic and Hazardous Substances.  California has added PFAS to the list of substances subject to Prop 65.  A Rhode Island bill would include PFAS in the definition of “hazardous substances” for purposes of industrial property remediation.

Legislative efforts have also addressed notice requirements.  Maine enacted legislation that requires manufacturers to provide notification if any personal, residential, commercial, or industrial product contains PFAS.  A bill pending in the California General Assembly would create a publicly accessible registry of products containing PFAS.  The bill would also require manufacturers to register PFAS-containing products.  A Minnesota bill would require manufacturers of products for sale in the state that contain intentionally added PFAS to provide written notice of the PFAS, its amount, and its purpose.

Other legislative proposals would enact the following:

  • A prohibition on products containing PFAS from being classified as recyclable.
  • A requirement for state-owned solid waste disposal facilities to establish leachate treatment to reduce PFAS.
  • A requirement for screening for PFAS in sludge or sludge-derived compost that is applied to land.
  • A requirement to adopt groundwater quality standards for certain PFAS.
  • A prohibition on the sale of products labeled as “compostable” or “home compostable” if it has a total organic fluorine concentration greater than 100 parts per million (ppm).

Four PFAS Added to TRI

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On January 28, EPA announced the addition of four per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) list.  These additions were prompted by the fiscal year 2020 National Defense Authorization Act (NDAA).  Section 7321 of the NDAA provides a framework for adding PFAS to the TRI.  Specific PFAS were added to the TRI by the act including perfluorooctanoic acid (PFOA) and its salts and perfluorooctane sulfonic acid (PFOS) and its salts. These were added to the TRI list on January 1.

The NDAA mandates the addition of other PFAS substances to the TRI list when they are the subject of certain regulatory actions.  Such actions include finalizing a toxicity value, issuing a significant new use rule (SNUR), and the addition of a PFAS substance to an existing significant new use rule.  The reporting requirement goes into effect January 1 the year following the regulatory action.

In April 2021, EPA finalized a toxicity value for perfluorobutane sulfonic acid (PFBS) (CASRN 375-73-5) and potassium perfluorobutane sulfonate (CASRN 29420-49-3). These two PFAS substances are being added to the TRI list because EPA finalized a toxicity value. PFBS-based compounds are replacement chemicals for PFOS, a chemical that the primary U.S. manufacturer voluntarily phased out by 2002.

A third PFAS, a substance being regulated by an existing SNUR, was designated as “active” on the TSCA Inventory.  Therefore, this substance has also been added to the TRI.

The fourth PFAS is a substance for which EPA had to review CBI claims before adding it to the TRI list: CASRN 203743-03-7.  The NDAA provides for Agency review of any CBI claims before adding any PFAS to the TRI list whose identity is listed on the confidential Inventory.  For this substance, CBI claims were “declassified.”

Reporting requirements for these PFAS substances are in effect for 2022.  Facilities that manufacture, process or otherwise use more than 100 pounds of any listed PFAS substance during 2022 are required to submit an EPCRA Section 313 report.  Reporting for calendar year 2022 is required by July 1, 2023.  Reports are submitted through EPA’s CDX TRIMEweb.

New Jersey PFAS Litigation Against 3M, DuPont, and Others to Continue

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New Jersey litigation against Dupont, Chemours, Corteva, and 3M over PFAS contamination will proceed following a federal district court ruling on a 3M motion to dismiss in December 2021.  The case involves contamination of four different sites in New Jersey, two of which were at issue in the motion to dismiss — 3M is not a defendant in the litigation over the other two sites.  Claims against 3M were brought under New Jersey’s Spill Compensation and Control Act (the “Spill Act”) and under New Jersey common law.

Spill Act

In its assessment, the Court explained that the Spill Act provides that generally “any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred.” It went on to say that although the Spill Act does not define the phrase “in any way responsible for any hazardous substance,” that the Act, does, however, instruct that it is to “be liberally construed to effect its purposes.” The Court further found that another court in this district had considered a motion by 3M to dismiss another Spill Act claim in Giordano v. Solvay Specialty Polymers USA, LLC, and had found that the plaintiffs in that case had sufficiently alleged that 3M was “in any way responsible for the contaminated water supply.”  It then held that Giordano was persuasive and found that the State had sufficiently “pled that 3M is ‘in any way responsible for’ the discharge of hazardous substances at both of the Sites at issue.”

Failure to Warn

New Jersey also argued that 3M owed a duty to warn the State that 3M’s PFAS-containing products could endanger New Jersey’s citizens and environment.  The State asserted that this duty arose under common law from its role as parens patriae, which is the State’s authority to act for citizens who cannot protect or advance their own interests, and the duty as trustee of New Jersey’s environment and natural resources.

The Court explained that to determine whether a duty exists at common law, the New Jersey Supreme Court first asks whether it was foreseeable that a party’s conduct was capable of harming another.  And then, where foreseeability has been established, the New Jersey Supreme Court assesses “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution

To assess foreseeability, the court, assessed whether it was foreseeable to 3M that its products could harm the State of New Jersey’s citizens and natural resources.  Analyzing the question in the context of a motion to dismiss, the Court presumed that New Jersey’s allegations and all reasonable inferences therefrom were true and found that the State has adequately established foreseeability of the harm.  The court then found that 3M did owe a duty to the state, explaining that “the Court again notes that the New Jersey Supreme Court has instructed that whether a duty exists ‘devolves to a question of foreseeability of the risk of harm to that individual or identifiable class of individuals.’  The New Jersey Supreme Court did not limit its inquiry to those with whom a defendant had a relationship.” And that, “New Jersey courts have not limited the duty to warn to those with whom a defendant has a direct relationship.”  Furthermore, the Court found that the public interest also favors finding of a duty as the prevention of far-reaching environmental and human harm is of paramount public concern.  The Court then held that the State had plausibly alleged a failure to warn and denied 3M’s motion to dismiss.

Design Defect

Finally, the Court found that New Jersey had adequately stated a claim for design defect claim.  The Court explained that “to state a claim for design defect under New Jersey law, a plaintiff must plead either that the product’s risk outweighs its harm, or that an alternate design exists.”  Because the State had alleged that “PFOA and PFOS have characteristics that cause extensive and persistent environmental contamination,” that “PFOA and PFOS contamination presents a serious threat to public health through drinking water,”  that PFAS exposure “has been linked to several diseases, including kidney and testicular cancer, thyroid disease, ulcerative colitis, high cholesterol, and pregnancy-induced hypertension and low birth weight,” that the PFAS used at the sites “were defective in design and unreasonably dangerous” for similar reasons, and that “the foreseeable risk to public health and welfare posed by 3M’s PFAS outweighed the cost to 3M of reducing or eliminating such risk,” the Court held that New Jersey had “managed to plead enough facts to eke out a claim for a design defect.”

US District Court Judge John Michael Vazquez issued the unpublished opinion.

Update on Roundup Appeal to the U.S. Supreme Court

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Roundup has been the subject of countless lawsuits.  One critical case is Monsanto v. Hardeman, 21-241.  Bayer has petitioned the U.S. Supreme Court for relief.  Recent Court action suggests that the Supreme Court might hear the case.  In December the U.S. Supreme Court solicited the Biden administration’s opinion on whether to hear Bayer AG’s appeal of a $25 million award to Edwin Hardeman.  Hardeman asserts that decades of exposure to Roundup caused his non-Hodgkin’s lymphoma.

Bayer contends that the Ninth Circuit wrongly affirmed the district court’s decision.  The company argues that the Ninth Circuit wrongly decided that FIFRA did not preempt Hardeman’s state-law failure-to-warn claim, despite EPA’s conclusion that such a cancer warning would be false and therefore prohibited by FIFRA.  The company asserts that ruling contravenes the Supreme Court’s holding that any state labeling requirement not “genuinely equivalent” to a FIFRA labeling requirement is preempted. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 454 (2005).

Bayer further argues that the Ninth Circuit wrongly affirmed the admission of expert opinions that glyphosate can cause non-Hodgkin’s lymphoma and caused Hardeman’s cancer specifically, even though those opinions rested on “little more than subjective intuitions” in conflict with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), which requires trial courts to play “a gatekeeping role” to ensure that expert opinions are reliable, and with Federal Rule of Evidence 702, which requires expert opinions to be the product of “reliable principles and methods,” “reliably applied … to the facts of the case,” Fed. R. Evid. 702(c)-(d).

The following groups have filed amici briefs in the case: CropLife America, U.S. Chamber of Commerce, Atlantic Legal Foundation, Lawyers for Civil Justice, Product Liability Advisory Council, Inc., Retail Litigation Center, Inc., and Washington Legal Foundation. In response to the Supreme Court announcement, Bayer released a statement declaring that “[n]ow that the Supreme Court has requested input from the Solicitor General in this case, we will not entertain any further settlement discussions with plaintiff lawyers that are representing a substantial number of Roundup claims.”

It is expected that, before the current Court term ends in late June, the justices will probably say whether or not they will hear the case.

EPA Proposes Addition of 12 Chemicals to Toxic Chemical List

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EPA is proposing to add 12 chemicals to the list of toxic chemicals which are subject to the reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA), section 313.  Under EPCRA section 313(e)(1), any person may petition EPA to add chemicals to or delete chemicals from the list. EPA issued a statement of policy in the Federal Register of February 4, 1987 (52 FR 3479) (FRL-3101-6) providing guidance regarding the recommended content of and format for petitions.  Additionally, EPA believes one chemical should be classified as a persistent, bioaccumulative, and toxic (PBT) chemical.  The Toxics Use Reduction Institute filed a petition for EPA to consider 25 chemicals for inclusion the toxic chemicals list. EPA reduced the list to 12 because the other chemicals did not meet the statutory criteria listed below.

The chemicals substance identities and CASRNs are:

  • 1-Bromopropane; 106-94-5
  • Dibutyltin dichloride; 683-18-1
  • 1,3-Dichloro-2-propanol; 96-23-1
  • Formamide; 75-12-7
  • 1,2,5,6,9,10-Hexabromocyclododecane; 3194-55-6
  • 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta[g]-2-benzopyran (HHCB); 1222-05-5 (PBT chemical identified by EPA)
  • N-Hydroxyethylethylenediamine; 111-41-1
  • Methylhexahydrophthalic anhydride; 25550-51-0
  • Nitrilotriacetic acid trisodium salt; 5064-31-3
  • Nonylphenol; 25154-52-3
  • p-(1,1,3,3-Tetramethylbutyl)phenol; 140-66-9
  • 1,2,3-Trichlorobenzene; 87-61-6
  • Triglycidyl isocyanurate; 2451-62-9
  • Tris(2-chloroethyl) phosphate; 115-96-8
  • Tris(1,3-dichloro-2-propyl) phosphate; 13674-87-8
  • Tris(dimethylphenol) phosphate; 25155-23-1

EPCRA section 313 allows for the addition of chemicals if they meet one of three different requirements: acute human health effects criterion, chronic human health effects criterion, and environmental effects criterion.   Substances can be added to the section 313 list if:

  • The chemical can reasonably be anticipated to cause significant health issues in humans, existing beyond the facility site, as a result of continued releases.
  • The chemical can reasonable be anticipated to cause cancer, reproductive issues, neurological disorders, heritable genetic mutations, or other chronic health effects in humans.
  • The chemical can reasonably be anticipated to cause a significant adverse effect on the environment to due to its toxicity that it warrants reporting under this section in the judgment of the Administrator.

EPA believes these 12 chemicals in moderately low to low doses/concentrations each meet at least one of the criteria. EPA is proposing a 100-pound reporting threshold for HHCB because it has been shown to be bioaccumulative in aquatic species with bioconcentration factor values greater than 1,000.  The threshold for reporting non-PBT, toxic chemicals is 10,000 pounds of the chemical used at a facility per year.

White House Plan to Combat PFAS

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The White House announced a multi-agency plan to address the risks posed by PFAS.  The plan involves eight federal agencies including the Departments of Agriculture, Defense, Agriculture, Homeland Security, and Health and Human Services (HHS).   The White House explained that “To safeguard public health and protect the environment, the efforts being announced will help prevent PFAS from being released into the air, drinking systems, and food supply, and the actions will expand cleanup efforts to remediate the impacts of these harmful pollutants.”

A key element in this plan is EPA’s PFAS Roadmap, which addresses PFAS through a number of environmental statutes from TSCA to the Safe Drinking Water Act.

The White House Council on Environmental Quality (CEQ) Chair Brenda Mallory will lead the newly-formed Interagency Policy Committee on PFAS. The committee on PFAS will work to coordinate and help develop new policy strategies to support research, remediation, and removal of PFAS in communities across the country.

The White House Fact Sheet also identified efforts underway at the DOD, FDA, and other HHS agencies.

DOD is conducting PFAS cleanup assessments at the nearly 700 DOD installations and National Guard locations where PFAS were used or may have been released.  The Department expects to complete its initial assessments by the end of 2023.  In addition, DOD manages a large research and development program on PFAS detection, treatment, and destruction—with $70 million devoted to a PFAS-free replacement firefighting foam.

The FDA will expand its testing of the food supply to advance efforts to estimate dietary exposure to PFAS from food.  In addition, FDA will report on the process of phasing out sales of certain PFAS from food contact uses, following the 3-year phase out agreements reached with certain manufacturers in 2020.  Outreach efforts are also underway to ensure that companies are reminded of packaging requirements that are intended to reduce human exposure to PFAS.  The FDA will also monitor the presence of and potential exposure to PFAS in cosmetics.

HHS will review the research on human health and PFAS.  This includes a study by two HHS agencies, Centers for Disease Prevention and Control (CDC) and Agency for Toxic Substances and Disease Registry (ATSDR), in eight states that will provide information about the health effects of PFAS exposure.

EPA PFAS Strategic Roadmap

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EPA has compiled a roadmap outlining Key Actions to address the risks posed by PFAS.  The roadmap identifies key actions under TSCA and other statutes including the Clean Water Act, the Safe Drinking Water Act, and Superfund.

TSCA

The roadmap calls for EPA to “close the door” on abandoned PFAS; i.e., PFAS chemicals that are no longer produced.  Many of these substances have no restrictions under TSCA.  This leaves the door open for manufacturers to start producing the chemicals again.  The roadmap intends for EPA to designate all uses of these substances that are not current uses as Significant New Uses.  This will allow EPA to review and make determinations on the potential risks, and require safety measures, before allowing the manufacturing of those chemicals again.   The roadmap states that EPA plans to implement this action item during the summer of 2022.

There is an ongoing goal of completing toxicity assessments for two PFAS known as GenX chemicals.  EPA also has a goal to publish health advisories for GenX chemicals and PFBS in Spring 2022.

Other actions under TSCA include

  • Publish national PFAS testing strategy,
  • Review previous decisions on PFAS, and
  • Finalize new PFAS reporting under TSCA Section 8.

TRI

Another key action in the roadmap is for EPA to categorize PFAS on the Toxic Release Inventory (TRI) as “Chemicals of Special Concern” and to remove the de minimis eligibility from supplier notification requirements for all Chemicals of Special Concern.  Adding PFAS to TRI has a projected completion goal of 2022.

CWA

The roadmap calls for restricting PFAS discharges from industrial sources through a multi-faceted Effluent Limitations Guidelines (ELG) program.  EPA plans to undertake rulemaking to restrict PFAS discharges from organic chemicals, plastics and synthetic fibers, metal finishing, and electroplating operations.  A proposed rule for plastics and synthetic fibers is expected in Summer 2023, and a rule for metal finishing and electroplating is expected in Summer 2024.  Other industries EPA is considering issuing PFAS ELGs for include electrical and electronic components, textile mills, and landfills.

SDWA

EPA has goal to establish a national primary drinking water regulation for PFOA and PFOS.  EPA regulates drinking water for over 90 contaminants but that does not include any for PFAS.  EPA expects to issue a proposed regulation in Fall 2022.  The agency has a statutory deadline of March 2023 to complete this action.

Superfund

EPA is developing a Notice of Proposed Rulemaking to designate PFOA and PFOS as CERCLA hazardous substances.  This would require facilities to report on PFOA and PFOS releases that meet or exceed set reportable quantities.  The proposed rulemaking will be available for public comment in Spring 2022.   EPA is also asking for public comment on designating additional PFAS as hazardous substances under CERCLA.

CAA

The Clean Air Act requires EPA to regulate emissions of hazardous air pollutants, which do not currently include PFAS.  EPA plans to identify sources of PFAS air emissions, concentration levels, and cost-effective mitigation technologies.

EPA Extends Submission Deadline for Health and Safety Studies on 50 Chemicals

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EPA is allowing manufacturers and importers additional time to submit unpublished health and safety studies’ data for 50 chemicals.  The new deadline for 20 of the 50 chemicals is December 1, 2021, updated from September 27, 2021.  The new deadline for the remaining 30 chemicals is January 25, 2022.  The 20 chemicals in the first group fall into the category of high priority for risk evaluation – note that EPA explains that being classified as high priority does not necessarily mean that a chemical is high risk.  These chemicals are currently undergoing Risk Evaluation under TSCA.  The Health and Safety studies will help EPA prepare scoping documents that identify the hazards, exposures, conditions of use of the chemicals, and potential exposures to them.

The 30 chemicals in the second group are organohalogen flame retardants.  These chemicals are being evaluated by the Consumer Product Safety Commission, which is a member of TSCA’s Interagency Testing Committee.

Additional information on the reporting requirements for the 50 chemicals can be found here and additional information on initial addition of the chemicals to the list here.

Policy Changes for PFAS Entering the Market

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On April 27, 2021 EPA announced policy changes regarding new PFAS prior to the chemicals entering the market.  Previously, low volume exemptions were allowed for some new PFAS.  EPA will implement new rules for reviewing and managing the low volume exemption requests.  After receiving the request, EPA has 30 days to conduct the review and determine if the chemical in the request could cause serious human health effects or significant environmental effects.  If either of the effects are determined, or if the process would take more than 30 days, the request is denied.

EPA stated it is unlikely to grant any low volume exemptions for PFAS due to the chemicals’ history of damaging health effects and the complexity of the process resulting in longer than 30 days to complete a review.  Denying these lengthy process reviews of PFAS allows the EPA to devote more time on pre-manufacture notice review processes and mitigate potential risks of the chemicals.  EPA is also looking for way to work with companies which have been granted low volume exemptions for PFAS and have them voluntarily withdraw their low volume exemptions.