EPA pursues expanded record-keeping related to “forever” chemicals

The EPA wants to reduce toxic release inventory (TRI) reporting thresholds for companies who use, process, and manufacture per- and polyfluoroalkyl substances, also known as 'forever chemicals.' With its new proposal, some metal fabricating companies might be required to file these reports. Image: Francesco Scatena/iStock/Getty Images Plus

An Environmental Protection Agency (EPA) proposed rule could have a big impact on both U.S. steel producers and their customers who fabricate metal products.

The agency wants to reduce toxic release inventory (TRI) reporting thresholds for companies who use, process, and manufacture per- and polyfluoroalkyl substances (PFAS). (These synthetic chemicals have been a part of consumer products since about the 1950s. PFAS have been looked at more critically in recent years because the carbon-fluorine bond that exists in these chemicals does not degrade easily in the environment. These chemicals can last thousands of years, thus earning the nickname “forever chemicals.”) Currently, 189 PFAS are listed on the TRI, most of which have been put on there in the last few years because of a congressional provision in the National Defense Authorization Act (NDAA) for fiscal year 2020.

The EPA has gone further than that congressional law specifies by listing PFAS as “chemicals of special concern,” which kicks in expanded reporting by companies who find very small amounts of those PFAS in their products. The EPA not only wants reports from companies who know they have small amounts in their products, such as sheet metal or pipe, but the agency also wants those companies, as suppliers to downstream users, to report small quantities of PFAS to their customers. That means manufacturers of all sizes, be they automakers or job shops, would then be obligated to file reports, too. Those reports must include calculations of a PFAS released into the environment or managed as waste, including recycling.

The EPA says these new reporting requirements, which could lead to community notification of chemicals on-site, are no big deal in terms of economic burden. A group of trade associations including the National Association of Manufacturers and National Association for Surface Finishing disagrees. Representatives for both associations told the EPA that its current approach must be revised because it is “arbitrary and capricious, an abuse of discretion, unsupported by record evidence, and contrary to law in violation of the Administrative Procedure Act.”

The Alliance for Automotive Innovation, which represents domestic and foreign carmakers, went further and argued the NDAA “did not direct either the classification of PFAS chemicals as chemicals of special concern, or the elimination of the de minimis exemption for PFAS chemicals.”

The EPA’s proposal has two parts. By adding PFAS to the list of chemicals of special concern, the EPA eliminates a current de minimis reporting exemption. As a result, companies whose products contain PFAS would have to submit reports they do not have to prepare now, even if those products contain minimal amounts of the chemicals, which have become something of a cause célèbre at the EPA in the last few years. One of the many NAICS manufacturing codes whose companies could be affected, according to the EPA, is the fabricated metal product manufacturing sector.

The second part of the proposed rule, which has particular relevance only for steel-producing and -consuming companies, is elimination of the de minimis exemption under the Supplier Notification Requirements for all substances on the list of chemicals of special consideration, not just PFAS. One of those chemicals is lead. The American Iron and Steel Institute and Steel Manufacturers Association don’t want that change to apply to lead in carbon and alloy steel. Lead is present in small quantities in key metal industry inputs such as ore, scrap, and other metals.

“For such a large-volume, naturally occurring chemical, lead has proven to be substantially burdensome for facilities to track every minute quantity that might be contained in mixtures or other trade-name products tangentially related to the production process, aggregate those amounts, quantify releases to various environmental media and on-/off-site locations, and report those amounts to the nearest one-tenth of a pound,” the two steel-producing trade groups wrote to the EPA. “As a result, elimination of the de minimis exemption for lead has significantly increased the TRI reporting burden for many facilities.”