Yesterday, the EPA PFAS release data was disclosed to the public for the first time, which is the result of a nearly year-long effort by the agency to have companies disclose PFAS discharge information. The data collected relates to only 38 facilities in the United States, but the results reflect the EPA’s continued efforts for significant data collection related to PFAS releases into the environment from industrial processes. The EPA PFAS release data provides a roadmap for companies in terms of how the EPA will continue to monitor PFAS discharges, and companies must understand that in the near future, the EPA’s coming regulations with respect to PFAS are likely to place considerable reporting obligations on entities.

What Are PFAS and Why Are They a Concern?

Per- and poly-fluoroalkyl substances (“PFAS”) are a class of over 7,000 manmade compounds. Chemists at 3M and Dupont developed the initial PFAS chemicals by accident in the 1930s when researching carbon-based chemical reactions. During one such experiment, an unusual coating remained in the testing chamber, which upon further testing was completely resistant to any methods designed to break apart the atoms within the chemical. The material also had the incredible ability to repel oil and water. Dupont later called this substance PFOA (perfluorooctanoic acid), the first PFAS ever invented. After World War II, Dupont commercialized PFOA into the revolutionary product that the company branded “Teflon.”

Only a short while later, 3M invented its own PFAS chemical – perfluorooctane sulfonate (PFOS), which they also commercialized and branded “Scotchgard.”  Within a short period of time, various PFAS chemicals were used in hundreds of products – today, it numbers in the thousands.

The same physical characteristics that make PFAS useful in a plethora of commercial applications, though, also make them highly persistent and mobile in the environment and the human body – hence the nickname, “forever chemicals.” While the science is still developing regarding the extent of possible effects on human health, initial research has shown that PFOA and PFOS are capable of causing certain types of cancer, liver and kidney issues, immunological problems, and reproductive and developmental harm.

EPA PFAS Release Data

On July 29, 2021, the EPA published preliminary Toxics Release Inventory (TRI) data about chemical releases, chemical waste management, and pollution prevention activities that took place during 2020 at nearly 21,000 federal and industrial facilities across the country. The preliminary EPA PFAS release data includes the first-ever reporting on per-and polyfluoroalkyl substances (PFAS) added to the TRI by the 2020 National Defense Authorization Act (NDAA).

The 2020 preliminary data were reported by facilities in certain industry sectors, including federal facilities, that manufactured, processed, or otherwise used the TRI-listed chemicals above certain quantities during 2020. The data include quantities of such chemicals that were released into the environment or otherwise managed as waste. The data also include the pollution prevention activities initiated by individual facilities during 2020.

The data released is raw data and does not contain any summary or trend analysis. EPA plans to publish the updated TRI dataset this fall, which will be used to develop the 2020 TRI National Analysis. EPA expects to publish the 2020 TRI National Analysis in early 2022.

According to the EPA, “…the data related to the PFAS added by the NDAA and received by the agency include a total of 89 TRI reporting forms for 44 discrete PFAS chemicals filed by 38 individual facilities. The preliminary data indicate facilities managed over 700,000 pounds of production-related waste of PFAS during 2020….EPA will include a section in the 2020 TRI National Analysis (to be published in early 2022) that will provide more detailed information, including discussion on the quantities of the PFAS that were released to the environment, recycled, burned for energy recovery or treated; source reduction activities implemented on PFAS; the facilities and sectors that disclosed this information; and the communities in which these activities took place.”

Impact On Businesses

Just two weeks ago, the EPA also took a significant step towards PFAS regulation under the Safe Drinking Water Act. The EPA action shows that our prediction that the EPA will promulgate a federal drinking water standard for PFAS within the next 12 months is accurate.

Many companies assume that any regulation under the Safe Drinking Water Act will not impact them, as virtually no industries, aside from water utilities, have any direct impact on drinking water. However, this belief provides a false sense of security that must immediately be dispelled. There are three specific ways that drinking water limits for PFAS will trigger scrutiny on environmental practices of businesses: (1) elffluent discharges into water sources; (2) waste sent to landfills that may leach into drinking water sources; and (3) properties abutting or in the vicinity of water sources.

Direct industry effluent discharges into water sources (which may not be drinking water sources, but may feed into drinking water sources) will be the low-hanging fruit target for local environmental agencies at the state level. Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS. Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water. Data collected now by the EPA under the TRI will also have an impact on future EPA enforcement action once the drinking water standards are in effect.

Companies that send their industrial waste to landfills are also well advised to do a full compliance check. While many companies do not use PFAS directly in their own manufacturing processes, do the parts or other raw materials used in the manufacturing process have PFAS contamination issues? If so, a company could unknowingly send PFAS-laden industrial waste products to landfills, and so these are questions that companies must get answers to. Over time, it is possible that the PFAS may leach out of the landfill and find their way into local water sources. Environmental regulatory agencies will look to these sites, the owners of the sites, and potentially companies sending waste to the sites as responsible parties for PFAS contamination in waterways.

Finally, even businesses having nothing to do with PFAS or manufacturing from which PFAS could be a contaminant need to follow news regarding PFAS regulations. For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)? What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration? If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses.

Conclusion

Our prediction remains that some time in 2022, PFAS drinking water rules will be finalized at the federal level. This will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs. Companies absolutely must begin preparing now for regulatory actions that will have significant financial impacts down the road.