They seem to be everywhere. Per- and polyfluoroalkyl substances (PFAS) are found in a vast range of places and products - from airports to pizza boxes, refineries to non-stick pans, inks to medical devices. PFAS have also found their way into conversations all over the world, becoming a buzzword, often synonymous with “toxic” and a cause of panic for some consumers and alarm for companies.
A new PFAS reporting requirement under the US Toxic Release Inventory (TRI) Reporting Program, a US-based regulation designed to disclose information about toxic chemical releases from US industrial and federal facilities to the public, is now triggering disclosure of annual chemical releases for 172 specific PFAS to the US Environmental Protection Agency (USEPA). Reporting of data from operations in calendar year 2020 (CY2020) is due 1 July 2021, and the USEPA will subsequently make the chemical release data available to the public.
What are we working with?
To better understand what all this means, let’s begin with the basics.
PFAS, which have been in use since the 1940s, are a family of over 4,000 human-made fluorinated organic compounds and substances whose carbon-fluorine bonds comprise one of the strongest chemical bonds in nature. Fully-fluorinated PFAS are resistant to photo, thermal, chemical, and biological degradation, remaining stable under extreme conditions such as high temperature, acid, base, and microbial attack.
While these characteristics can make PFAS very useful in many industrial applications, their persistence in the environment has earned PFAS the moniker “forever chemicals,” and has led to public concern and new regulations, such as the TRI reporting requirements.
Recent legislation requirements
In December 2019, the US Congress passed the PFAS Act of 2019 under the National Defense Authorization Act (NDAA) to create a series of legal requirements on PFAS. One key requirement was the addition of PFAS to the TRI Reporting Program.
Using the PFAS Act, Congress bypassed the standard regulatory process the USEPA must follow to add chemicals to the TRI Reporting Program, ultimately resulting in the addition of 172 specific PFAS to the program. The final list was published on 22 June for CY2020 TRI reporting. However, the TRI reporting requirements for PFAS will continue to evolve, as Congress charged the USEPA with continuing to evaluate additional PFAS for TRI regulation. The USEPA is also considering technical changes to how PFAS are regulated and reported under the TRI Reporting Program. As a result, companies can expect to face evolving requirements for PFAS reporting under the TRI Reporting Program in the coming years.
Under this regulation, companies selling mixtures or products containing any of these 172 PFAS to US TRI-regulated facilities must now disclose the presence of these PFAS in their products. This disclosure is required by the Emergency Planning and Community Right-to-Know Act (EPCRA) Supplier Notification Requirements and was effective immediately on 1 January 2020. TRI-regulated facilities will need this PFAS disclosure information to determine if they exceed a reporting threshold for a regulated PFAS for CY2020 and then report associated PFAS environmental releases and waste management activities to the USEPA by 1 July 2021.
With supply chains that stretch around the world, this new disclosure requirement in the US will have global effects. The TRI reporting requirement will present a challenge for companies that have never had to evaluate for the presence of PFAS in their operations before. Many companies may in fact discover the presence of PFAS in their raw materials for the first time during their due diligence and CY2020 TRI report preparation process.
Regulations and other controls on PFAS are not limited to the US. Signatories of the Stockholm Convention have agreed to a global ban on the use of perfluorooctanoic acid (PFOA) and related compounds with limited exceptions and to phase out the use of perfluorooctane sulfonic acid and related PFAS, with other PFAS being considered for bans in the future. Further restrictions on the manufacture and use of other PFAS are being developed in the European Union under REACH. An even more aggressive plan has been proposed by five countries (Germany, Netherlands, Norway, Sweden, and Denmark) to limit the manufacture and use of a much broader class of PFAS.
Pitfalls of public disclosure
The stakeholder groups that review, analyze and use the public TRI data set are varied and wide, and include the general public, governmental agencies, politicians, academia, and non-governmental organizations (NGOs). As many of these stakeholders have significant and growing interest in PFAS, the intended purpose of the program may prove to be more effective for PFAS than historically seen for other TRI-regulated chemicals.
The USEPA will publish the reported CY2020 TRI data on PFAS releases to the public in late summer 2021. Disclosure of these data to the public could lead to wider potential reputational risk, as knowing that a chemical is regulated under the TRI Reporting Program can generate cause for concern among consumers. After all, it would seem logical a chemical couldn’t be on the TRI list unless it’s deemed toxic.
Having a chemical labeled “toxic” can, in fact, be quite challenging for a company’s or product’s reputation and become a driving factor for a consumer product deselection. This is of unique concern for many PFAS, where it remains unclear just how “toxic” the chemicals in question are. The general public is not necessarily in a position to fully comprehend the PFAS information that will be disclosed under the TRI Reporting Program, and could see the “toxic” label for these 172 PFAS as a red flag for all PFAS, not recognizing PFAS as a large chemical grouping with varying degrees of toxicity.
Making this TRI data set broadly available may expose companies to risks such as product liability lawsuits, questions on environmental contamination liabilities, toxic tort claims, product deselection, and reputational damage. And with the new guidelines effective immediately, information overload and misinformation could easily result. According to ERM traditional and social media monitoring, online chatter about PFAS increased 22 percent from April 2020 to September 2020. Companies must be positioned to manage the potential blowback on PFAS chemical disclosures and proactively engage key customers and consumers.
Compliance deadlines are tight. Typically, when the USEPA adds a chemical to the TRI Reporting Program, the EPCRA Supplier Notification Requirements kick in first and give the disclosure process time to catch up. Actual TRI reporting on the new chemical typically phases in second. In the case of PFAS, that’s not happening—these regulations became effective immediately, creating a need for prompt action to plan for compliance.
Companies selling a mixture or trade product containing one of these 172 PFAS to a TRI-regulated entity are required to disclose the PFAS presence to their customers immediately. Once becoming aware, those customers then have 30 days to give their customers the same information on their products. All TRI-regulated facilities throughout US supply chains are required to evaluate for and submit their TRI reports as necessary for these 172 PFAS by 1 July 2021. Due to the PFAS information deficits present in supply chains, difficulties in TRI reporting are likely to occur.
Start planning now
Companies should begin their PFAS due diligence immediately. This process may involve:
- Full supply chain engagement
- Research on possible PFAS in raw materials
- Evaluation of potential exemptions and preparation of justification documentation
- Development or expansion of existing material disclosure programs or processes
- Augmentation of existing product stewardship/compliance programs
- Calculation of TRI reporting thresholds for identified PFAS
- Development of PFAS release calculation or engineering estimate methodologies for preparation of TRI report submissions
Immediate actions must also be put into broader context. Companies should anticipate the ongoing need for action after this initial reporting period. This includes building systems for changing PFAS reporting requirements and getting ahead of the business consequences of reactions by customers or the public.
As companies prepare for the new PFAS disclosure and TRI reporting protocols, and as public awareness of PFAS continues to rise, you should keep the following in mind:
- Identify risks. Determine what business and social risks apply to you.
- Assess implications. With ever-increasing regulations on PFAS in products, you may encounter new requirements that affect your market access.
- Know your stakeholders. Identify and define relationships with stakeholders relevant to your reporting, both internal and external.
- Be transparent. Develop a plan to inform key customers and consumers, and other key stakeholders in advance of public reporting disclosures. Set the stage prior to future disclosures.
- Be proactive. Develop a communications and stakeholder engagement plan. Recognize that, once they are identified as PFAS containing as a result of supplier disclosure, your products may be subject to other regulations in addition to TRI reporting.
- Get alignment. Train your team (and identify a spokesperson[s]) on how to respond to PFAS-related questions.
Recognize that defining the extent of your company’s PFAS risk and strategizing for effective risk management should be a multi-functional, boots-to-boardroom strategy. Sales, product development, public relations, supply chain, product stewardship, site environmental managers, legal counsel, risk management, and company leadership will all have a role to play in your strategy development. Keep your company on top of these incoming—and immediate—changes by planning for them now.