EPA and activist groups headed for additional litigation over PFAS reporting thresholds

The Environmental Protection Agency (EPA) and various activist groups have not been able to agree on a stay of litigation in a case regarding supplier reporting exemptions for the Toxics Release Inventory (TRI). This sets the stage for a short battle over an additional stay of litigation until November 2023, when the Agency has planned to promulgate a final rule to eliminate the reporting exemption.

BY WALKER LIVINGSTON, ESQ | OCT 27, 2022 1:46 PM EDT

Regulatory background

Per- and polyfluoroalkyl substances (PFAS) are a large class of synthetic fluorinated organic compounds, a group of chemicals that includes perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt, known as GenX, along with many other chemicals.
PFAS can repel oil and water and are produced for use as surface treatments for soil, stain, and water resistance; for textiles, paper, and metals; and most notably for fire suppression foams. They are used in cleaning products, cookware, leather, paint, and wire insulation.
The Toxics Release Inventory (TRI) database was created by Section 313 of the Emergency Planning and Community Right-to-Know Act or ( EPCRA). Under EPCRA, facilities that manufacture, process, or use chemicals listed on the TRI over a threshold amount are required to annually report the quantity of the chemicals released, emitted, or discharged into the environment, unless an exemption is applicable. The reporting period is the calendar year and the deadline for reporting is July 1 of the year following the reporting year.
The criteria for TRI reporting are established by the EPA. Reporting is required for chemicals that may cause cancer or other chronic human health effects, and for those that have significant adverse acute human health or environmental effects. Large manufacturing facilities report data to the TRI, as do industries involved in metal mining, electric power generation, chemical manufacturing, and hazardous waste treatment. By requiring information to be reported to the EPA and made public, the EPA hopes to prevent major accident hazards/accidents.
What reporting looks like: Facilities are required to report if they have 10 or more employees, fall under one of the required industries, and exceed the established threshold imposed for the relevant chemical. A TRI Form R is submitted for each TRI-listed chemical a facility manufactures, processes, or otherwise uses in quantities above the reporting threshold. TRI data and tools are available here.
These facility owners/operators must also report pollution prevention and recycling data for such chemicals, pursuant to Section 6607 of The Federal Pollution Prevention Act of 1990 (PPA, 42 U.S.C. 13106). The PPA focuses on source reduction of pollution from hazardous substances, and Section 6607 requires that facilities report additional data on waste management and source reduction activities to the TRI.
The National Defense Authorization Act for Fiscal Year 2020 (FY2020 NDAA) was signed into law on December 20, 2019. Section 7321(c) identifies certain regulatory activities that automatically add PFAS or classes of PFAS to the EPCRA section 313 list of reportable chemicals. The NDAA established TRI manufacturing, processing, and other use reporting thresholds of 100 pounds for each of the listed PFAS.
For Chemicals of Special Concern, the Guidance on Supplier Notification provides that supplier notification is not required if a toxic chemical in a mixture or trade name product is present below the de minimis level for that toxic chemical, regardless of whether or not it is a persistent, bioaccumulative, or toxic (PBT) chemical (section 2.3).
Currently, the de minimis concentration for perfluorooctanoic acid (PFOA) (CAS RN 335-67-1) is 0.1%. All other TRI-listed PFAS have a de minimis level of 1%.

The lawsuit

On January 20, 2022, several activist groups including the Sierra Club, Earthjustice, and the National PFAS Contamination Coalition (collectively, Plaintiffs) filed a lawsuit against the EPA in the District Court for the District of Columbia. In the complaint, the Plaintiffs argued that the EPA violated the 2020 NDAA and EPCRA by adding the statutorily listed PFAS substances to the TRI in a way that allows facility owners to apply the de minimis exemption to skip otherwise required reporting actions. The Plaintiffs also argued that the EPA violated the Administrative Procedure Act (APA) by promulgating PFAS rules without traditional notice-and-comment rulemaking periods.
On April 5, 2022, the EPA requested (and the Plaintiffs did not oppose) that the court stay the litigation until September 30, 2022, so that the EPA could focus its efforts on the rulemaking process, which would potentially obviate further litigation between the parties and conserve the court’s resources.
On August 15, 2022, the EPA submitted a proposed rule eliminating the de minimis exemption for PFAS TRI reporting for review to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA). The proposed rule will (1) classify certain PFAS (including, but apparently not limited to all statutorily listed PFAS at issue in the litigation) as Chemicals of Special Concern, eliminating the de minimis exemption and Alternate Threshold, and (2) amend EPA regulations to eliminate the de minimis exemption from supplier notification requirements for all Chemicals of Special Concern. The rule is pending review as of October 25, 2022, and the EPA expects to publish the proposed rule in December 2022.
The EPA expects to issue the final version of the rule by November 30, 2023. The rule will apply to 2024 and future reporting years.

Current EPA motion to stay

In its motion to stay, the EPA explained that the parties have not been able to agree on whether the court should extend the stay of litigation, setting the stage for the current set of motions.
The EPA’s motion requests a stay of litigation through November 30, 2023. The Agency has offered, if the stay is granted, to file status reports every 90 days on the litigation.
A federal court has the power (and broad discretion) to grant a stay of proceedings to control its docket, weighing the competing interests between potential hardships to the parties and the court’s interest in conserving its judicial resources. As the stay would be a boon to the judicial economy, the EPA has the burden of proving that the proposed stay would not harm the Plaintiffs and would actively harm the EPA.
The EPA begins its argument by analyzing whether the Plaintiffs would be harmed if the stay is not granted. The Agency goes on to argue that although the Plaintiffs have asserted that the PFAS rules are unlawful and arbitrary, the EPA is already in the process of developing a rule that will modify the reporting requirements to cure the exemptions that the Plaintiffs sued over. The EPA goes further to argue that proceeding with the litigation is “unlikely to get Plaintiffs what they want faster.” The Agency notes that the earliest the litigation could resume is November 17, 2022 (a day after the EPA’s reply to Plaintiff’s opposition is due), which would leave just over a year before the EPA’s already planned final rule in November 2023 for the court to issue an order on the litigation. As the administrative record for the case has not yet been filed and neither party has briefed the court on the merits of the case, it is unlikely that the case could be completed, and the EPA release a rule within that timeframe.
The EPA goes on to argue that it is much more likely to suffer hardship if the court denies the stay. Specifically, the EPA references its staff working on the rulemaking who are also assisting the Department of Justice in responding to the litigation. According to a concurrent declaration field by the Branch Chief of the Data Collection Branch (DCB) in the Office of Pollution Prevention and Toxics (OPPT), David Turk, DCB includes three full-time employees who focus on the TRI and are responsible for its regulatory development and configuration. Those same employees are also responsible for supporting litigation related to the TRI and EPCRA, meaning that the employees are currently running double-duty for both rulemaking and for the litigation at hand. The EPA argues that if the litigation is not stayed, DCB staff will be spending time preparing for future litigation rather than finalizing the rulemaking.

Future filings and implications

On November 4, 2022, the Plaintiffs’ opposition to the EPA’s motion is due, and the EPA’s reply in support of its motion is due on November 16, 2022. After that, the court will rule on whether it will continue the stay of litigation or require the EPA to respond to the Plaintiffs’ complaint.
Mr. Turk’s declaration sets out the EPA’s expected schedule to release the rule if the litigation is stayed. First, the EPA sending the proposed rule to OMB began a 90-day timer, which means that OMB should complete by mid-November 2022 (90 days after August 15, 2022 is Sunday, November 13 which means the timer will likely roll over to the next Monday).
When the EPA receives the rule back from OMB, it will make any changes necessary and then expects to release the proposed rule in December 2022. The Agency expects to send the final rule to OMB for review in July 2023 and intends to sign the final rule by November 30, 2023.
Because additional litigation would likely cause the rule to be delayed further (even if the EPA was mandated by the court to release a rule), it is likely that the stay of litigation will be granted. Courts generally will try to preserve judicial economy in any situation possible, and unless the Plaintiffs can demonstrate a concrete and particularized harm that would not be obviated by the 2023 final rule, the court will most likely grant the EPA’s motion.

Featuring previous research by Patricia Iscaro.

To contact the author of this analysis, please email Walker Livingston ( [email protected])
To contact the editor of this analysis, please email Patricia Iscaro ( [email protected])

Key Documents and Dates

November 4, 2022 – Petitioners’ opposition to the EPA’s motion to stay proceedings is due
November 16, 2022 – EPA’s reply in support of its motion to stay proceedings is due
OIRA page for PFAS TRI Reporting Rule