On August 9, 2023, the EPA published its proposed updated Air Emissions Reporting Rule (AERR), which seeks to allow EPA to collect air emissions data on PFAS from companies, even though PFAS are currently not designated as a chemical that can be regulated under the Clean Air Act. The public comment period closed on October 18, 2023, and the EPA intends to publish a final rule by summer 2024. PFAS air emissions have currently not received nearly the attention that drinking water, Superfund, and PFAS supply chain reporting, but with a predicted impact on over 120,000 facilities nationwide at a cost of $3 billion, companies absolutely must pay attention to EPA’s initiatives with respect to air emissions.

PFAS Air Emissions In EPA’s Crosshairs

The current AERR requires state regulatory agencies to collect criteria air pollutants and precursors (CAPs) emissions data from facilities within their area and report that information to EPA. The updated AERR would require those same state regulatory agencies to additionally submit information regarding emissions of Hazardous Air Pollutants (HAPs) to the EPA, something which is currently only done on a voluntary basis. PFAS are not designated as either CAPs or HAPs; however, the EPA’s updated AERR proposes that the EPA be allowed to collect data on air emissions based on an EPA Office of Inspector General’s report and a D.C. Circuit court case that recommended or required EPA to take steps to examine all existing or potential HAPs to better guide future rulemaking. EPA proposes that the reporting threshold for PFAS be set at 0.05 tons per year, although it acknowledges that there are no approved PFAS air monitoring techniques yet and no definitive findings from EPA as to PFAS toxicity from air emissions.

Impact On Companies

The EPA estimates that the updated AERR will cost companies over $3 billion over the next 10 years, which will impact 120,000 facilities (around 43,000 of which are estimated to be small businesses). Reporting requirements would begin in 2027. While still over two years away, companies will have to begin establishing processes to collect air emissions data, which may require investment in technology to do so. It is likely that AERR data collected will be more significant than data already collected for the EPA through programs such as TRI, since the EPA indicated that data collected under the updated AERR will be able to be applied to other programs such as TRI.

From a potential litigation standpoint, the information collected by EPA will be publicly available and not confidential in any way. This means that the information will be available to plaintiffs’ attorneys who may be looking for new PFAS avenues for class action litigation, especially in environmental justice communities that may have higher than usual clusters of issues such as cancers. EPA is quite open that it intends to use the information to promulgate new regulations, which in turn may lead to increased enforcement action related to PFAS air emissions.