EPA sued over PFAS “secrecy” reporting loopholes

Washington, D.C. —

Today, three national advocacy organizations represented by Earthjustice, sued the Environmental Protection Agency (EPA) in federal court to force the agency to close illegal loopholes that let chemical plants and military bases across the United States avoid disclosing their PFAS emissions into the environment during manufacturing or use of these cancer-causing chemicals.

Under Congress’s 2020 National Defense Authorization Act (NDAA), PFAS manufacturers and polluters must report on nearly 200 PFAS they manufacture, use or release. The information is compiled by EPA in a public database called the Toxics Release Inventory, or TRI. But due to recently created EPA loopholes, chemical companies and the military can keep the PFAS they produce or dump in the environment secret.

“Thanks to EPA’s loopholes, communities, scientists and lawmakers don’t know which PFAS are being used, in what amounts, or to what extent companies are dumping PFAS in our air or water,” said Laurene Allen, a National PFAS Contamination Coalition leadership team spokesperson, and resident of Merrimack, New Hampshire, where known PFAS-polluter Saint Gobain Performance Plastics operates a major facility. “PFAS remain largely unregulated, so communities depend on accurate reporting to figure out how to advocate for themselves. EPA must close these loopholes immediately and force companies to accurately disclose their PFAS pollution.”

An Earthjustice review of the first data from TRI reports for PFAS, found that entities are either underreporting or not disclosing how they use or dump PFAS in the United States. For example, major PFAS polluters like the Department of Defense, and Saint Gobain Performance Plastics, did not report anything on the TRI. Also, only 39 facilities reported that they produced or processed more than 100 pounds of PFAS in 2020 — a number inexplicably low given the large volume of PFAS manufactured, imported, and used in the country. In addition, nearly half of the facilities that reported having manufactured, processed, or used PFAS in 2020, said that they did not release any PFAS into the environment.

EPA-created loopholes allow chemical companies and military agencies to avoid reporting their PFAS use and pollution if they release less than 500 pounds, and produced up to 1 million pounds of PFAS. EPA also allows secrecy if companies are mixing PFAS with other chemicals, even if dumping in air or water takes place.

“PFAS,” which stands for per- and polyfluoroalkyl substances, are a class of thousands of chemicals that can persist in human bodies and in the environment for decades. Studies show PFAS are linked to cancer, immune system dysfunction, liver and kidney damage. More than 95% of the U.S. population has PFAS in their bodies, according to the Centers for Disease Control and Prevention (CDC).

Chemicals in this class of more than 5,000 substances are found in products like nonstick pans, food packaging, waterproof jackets, and carpets to repel water, grease, and stains. They’re also used in firefighting foam often used on military bases and at commercial airports. Even personal care products like waterproof makeup, dental floss, sunscreen, shampoo, and shaving cream contain PFAS.

In October of 2021, EPA unveiled a roadmap to study and to some extent, regulate PFAS.

Earthjustice is filing this lawsuit on behalf of the National PFAS Contamination Coalition, Sierra Club, and the Union of Concerned Scientists.

Quotes from leading attorney and clients:

“Families across the country have a right to know if a nearby chemical plant, or a military base, is dumping PFAS in the air or water,” said Eve Gartner, Earthjustice managing attorney. “PFAS are extremely toxic. They are linked to cancer, yet EPA is allowing secrecy loopholes to protect polluters. This must stop.”

“Millions of Americans are exposed to PFAS every day,” said Anita Desikan, senior analyst at the Center for Science and Democracy at the Union of Concerned Scientists. “Communities, scientists and lawmakers need accurate data for safety, investigation and policy development.”

“For decades, people in New Jersey have been exposed to toxic PFAS chemicals in their air and drinking water. This is extremely concerning because ​​PFAS are so toxic that a very low dose can cause significant health effects,” said Anjuli Ramos, director of the Sierra Club, New Jersey Chapter. “EPA’s TRI reporting thresholds do not work when it comes to the evaluation and understanding of PFAS in the environment. Since states like New Jersey have limited regulatory authority to require companies to report their use and release of PFAS chemicals, the public counts on EPA to ensure the TRI accurately reflects all PFAS emissions for every company.”