The data and the standards are critical to the success of enforcement efforts including PFAS lawsuits. The historic $2.5 billion settlement achieved by New Jersey in New Jersey Department of Environmental Protection v. E.I. du Pont de Nemours is a case in point. The easing of those reporting requirements and the delay in their implementation has alarmed state AGs on whom much of the enforcement burden has landed.
Toxic “forever chemicals”
PFAS have been manufactured and widely used in industry since the 1940s. They biodegrade, if at all, only very slowly and now contaminate water supplies, soil, air and food products throughout the world. They bioaccumulate in human beings and have been linked to:
- kidney and testicular cancers;
- liver damage;
- increases in cholesterol levels; and
- pregnancy complications and lower birth weight.
In April 2024, the EPA set the acceptable level of PFAS contamination in drinking water at 4 parts per trillion (ppt) for perfluorooctane sulfonate/sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), two common PFAS compounds.
The technology behind widespread cleanup efforts is still in its developmental phases, so scientific attention has largely focused on assessing the extent and nature of PFAS damage to the environment. Hence the concern about the reduction of reporting requirements.
The original 2023 reporting standard
EPA regulations finalized in October 2023 (the “original rule”) required manufacturers and importers of PFAS and PFAS-containing articles to report detailed data on activities dating from 2011 to 2022. The due date for the retroactive reporting (as revised since 2023) was April 13, 2026.
The original rule required the disclosure of “a broad range of information, such as information related to chemical identity and structure, production, use, byproducts, exposure, disposal, and health and environmental effects.” According to the AG’s comment, the “EPA considered, but rejected, exemptions during the rulemaking process, reasoning that “this rule is focused on improving EPA’s knowledge of commercially manufactured PFAS and their uses.” The extensive disclosure was thought necessary “to improve the [EPA’s] understanding of PFAS in commerce and to support actions to address PFAS exposure and contamination.” The original rule contains virtually no exemptions.
The new rules
On November 10, the EPA proposed revisions to the original rule that would add important exemptions, including:
- Imported articles. The EPA justified this exemption by explaining that article importers are unlikely to have known or reasonably ascertainable information about the PFAS in the articles they imported during the lookback period.
- De minimis PFAS concentrations for concentrations of PFAS below 0.1 percent. As with the imported article exemption, the EPA reasoned that “reporters are unlikely to have records of PFAS amounts below 0.1 % because of U.S. and international requirements at the time.”
- Byproducts, impurities, and non-isolated intermediates; and
- Research and development chemicals. The EPA argued that information on PFAS manufactured solely for R&D purposes would be limited and would provide minimal information regarding PFAS exposures and quantities in commerce.
The AGs argue that the exemptions will eviscerate the original disclosure rule, which the EPA crafted after considering and rejecting the exceptions. It seems motivated, at least in part, by considerations of the feasibility and/or convenience of compliance by PFAS manufacturers and importers.
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It is difficult, however, to assess the importance of the data that will be lost under the proposed revisions because reporting under the original rule had not yet begun. This is shaping up as an unsatisfying debate where both sides depend on conjecture. But we do know that the information is vital to state enforcement.
States rely on EPA data
For their part, the state attorneys general argue that “State agencies have labored to identify PFAS in commerce and the environment, so that they may mitigate human exposures and environmental harm where the risks are unacceptable. Our States also rely on EPA to use its substantial statutory authority to identify and collect information on toxic chemical contaminants, which in turn supports and better informs State agency actions. With more information about the sources and identities of PFAS in our jurisdictions, States could better identify potential sources, target our testing initiatives, and mitigate the use of, and contamination by, PFAS where possible.”
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