https://www.theguardian.com/environment/2022/oct/12/pfas-toxic-forever-chemicals-trump-era-loophole?link_id=22&can_id=676680e690ebef04ff7b58faa7b3f94f&source=email-scotus-opens-floodgates-on-trump-election-scams-3&email_referrer=email_1699983&email_subject=trump-ratted-out-to-feds-by-one-of-his-own
<https://www.theguardian.com/environment/2022/oct/12/pfas-toxic-forever-chemicals-trump-era-loophole?link_id=22&can_id=676680e690ebef04ff7b58faa7b3f94f&source=email-scotus-opens-floodgates-on-trump-election-scams-3&email_referrer=email_1699983&email_subject=trump-ratted-out-to-feds-by-one-of-his-own>
US firms exploiting Trump-era loophole over toxic ‘forever chemicals’
Study finds chemical companies dodging federal law designed to track how many
PFAS plants are pumping into environment
A sign in Oscoda, Michigan, warns hunters not to eat deer because of high
amounts of toxic chemicals in their meat. Photograph: Drew YoungeDyke/AP
Chemical companies are dodging a federal law designed to track how many PFAS
“forever chemicals” their plants are discharging into the environment by
exploiting a loophole created in the Trump administration’s final months, a
new analysis
<https://www.ewg.org/news-insights/news/2022/09/dow-3m-and-others-exploit-loophole-avoid-reporting-forever-chemicals>
of federal records has found.
The Fiscal Year 2020 National Defense Authorization Act put in place
requirements that companies discharging over 100lb annually of the dangerous
chemicals report the releases to the Environmental Protection Agency (EPA).
But during the implementation process, Trump’s EPA created an unusual
loophole that at least five chemical companies have exploited.
The amount of PFAS <https://www.theguardian.com/environment/pfas> being
discharged into the air, water or disposed of on land “could be much higher
than we already know”, said Jared Hayes, a policy analyst with the
Environmental Working Group (EWG) and a report co-author.
“Allowing manufacturers to skirt reporting requirements has serious public
health consequences for communities that live near facilities that use PFAS
and they have a right to know how many forever chemicals companies are
releasing,” he wrote.
PFAS are a class of about 12,000 chemicals typically used to make thousands
of products resist water, stain and heat. They are called “forever chemicals”
because they do not naturally break down, and accumulate in humans and the
environment. A growing body of evidence links them to serious health problems
like cancer, birth defects, liver disease and autoimmune disorders.
The chemicals are estimated to be contaminating drinking water for over 200
million people in the US, and state and federal regulators have passed a
barrage of new legislation in recent years designed to rein in pollution.
Public health advocates say PFAS discharges from chemical plants have
sickened residents living near or downstream from them. Contamination from a
Chemours factory in North Carolina has contaminated hundreds of square miles
<https://www.theguardian.com/us-news/2022/jul/12/north-carolina-pfas-toxic-forever-chemicals-cancer>
around the facility, and DuPont paid
<https://www.reuters.com/article/us-du-pont-lawsuit-west-virginia/dupont-settles-lawsuits-over-leak-of-chemical-used-to-make-teflon-idUSKBN15S18U>
$670m (£610m) for sickening thousands of residents near its West Virginia
PFAS production plant.
EWG’s analysis of federal reporting records identified five plants
discharging unknown amounts of 14 PFAS compounds, though there may be more.
The Trump EPA gave PFAS an unusual exemption under the law that allows
companies not to report discharges if the amounts are “negligible”, which is
defined as less than 1% of a total mixture. The rule is referred to as the
“de minimis exemption”.
Companies discharging thousands of pounds of PFAS could have gotten their
releases under the 1% threshold via several routes, said Melanie Benesh,
EWG’s vice-president of government affairs. Companies may have added water to
PFAS to dilute it to the point that it is below 1%. However, the total amount
of PFAS released is still high, and may present a threat once in the
environment.
Companies may also be using complex mixtures with multiple PFAS. If the
companies keep any one PFAS compound below the 1% threshold, then they won’t
have to report it, even if the total amount of all PFAS compounds in the
mixture far exceeds 1%.
“The reason we have the [reporting law] is so communities downstream from
those facilities know what’s in their water, so if you have companies that
are avoiding reporting then it undermines the purpose of the law,” Benesh
said.
In a statement to the Guardian, an EPA spokesperson said the agency is aware
of the loophole and has begun the process to potentially close it.
Benesh said she is uncertain why the Trump administration would agree to
create the loophole, but noted that chemical companies or trade groups asked
for the exemption <https://www.regulations.gov/docket/EPA-HQ-TRI-2019-0375>
during implementation’s public comment. Meanwhile, the American Chemistry
Council, a trade group representing companies that avoided reporting PFAS
discharges, had lobbied the EPA
<https://www.reginfo.gov/public/do/eom12866SearchResults?pubId=202204&rin=2070-AK97&viewRule=true>
office in charge of implementing the law.
The NDAA required companies managing and disposing of 180 different kinds of
PFAS
<https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act>
over 100lb (45kg) annually to report their releases to the EPA’s toxics
release inventory (TRI).
Separately, the chemical data reporting
<https://www.epa.gov/chemical-data-reporting/access-cdr-data> rule (CDR)
already required companies that use PFAS in volumes more than 2,500lb
(1,134kg) annually to report use data.
The EPA last year noticed companies that handled or produced large volumes of
PFAS and reported to the CDR did nor report discharges under the TRI.
Companies contacted
<https://www.epa.gov/chemicals-under-tsca/epa-releases-preliminary-data-2021-toxics-release-inventory-reporting>
by the agency cited
<https://www.epa.gov/chemicals-under-tsca/epa-releases-preliminary-data-2021-toxics-release-inventory-reporting>
the 1% de minimis exemption as the reason for not reporting.
Allowing PFAS to be exempted under de minimis is “clearly at odds with
Congress’s intent”, Hayes wrote. Lawmakers intentionally set the 100lb
(45kg)-reporting threshold because all substances with such low reporting
levels are labeled “chemicals of special concern”
<https://www.law.cornell.edu/cfr/text/40/372.28>.
Manufacturers cannot use the de minimis exemption to avoid reporting releases
of chemicals of special concern. But when the Trump EPA implemented the law,
it did not include PFAS as a chemical of special concern, and instead gave it
a designation <https://www.law.cornell.edu/cfr/text/40/372.65> with chemicals
with reporting thresholds of 10,000 pounds or above, Hayes wrote.
PFAS are the only chemicals with a 100lb (45kg) reporting limit that can use
the exemption.
“EPA’s de minimis loophole gives companies an opportunity to keep their
pollution secret, which goes against the very purpose of the toxic release
inventory,” said Tim Whitehouse, a former EPA attorney and executive director
of Public Employees for Environmental Responsibility.
In a statement to the Guardian, the EPA said its proposed rule changes
include removing the eligibility of the 1% exemption for PFAS, designating
PFAS as a chemical of concern, and “reversing the approach set forth by the
previous administration”.
There can be no more hiding, and no more denying. Global heating is
supercharging extreme weather at an astonishing speed. Guardian analysis
recently revealed how human-caused climate breakdown is accelerating the toll
of extreme weather across the planet. People across the world are losing
their lives and livelihoods due to more deadly and more frequent heatwaves,
floods, wildfires and droughts triggered by the climate crisis.
