The loophole, arising from a clause in the 2020 National Defense Authorization Act (NDAA), enabled many companies to avoid disclosing releases of toxic “forever chemicals” to the EPA.
Internal EPA correspondence obtained by The Hill shows that career staff members attempted to make Congress aware of the issue, but they believe their efforts were rebuffed by political appointees.
One employee lamented that career staff “had tried to tell” the Senate about the problem, but he could not get approval to do so.
The clause at issue, written by the Senate Environment and Public Works Committee (SEPW), said on Jan. 1, 2020, some of the chemicals — also known as PFAS — must be included in the EPA’s reporting database for toxic chemical releases: the Toxics Release Inventory (TRI).
But while the clause specified an annual reporting threshold for the compounds, it did not indicate whether Congress intended to deem them “chemicals of special concern,” as opposed to the baseline “standard chemical” label.
Without the stricter designation, polluters could hide their discharges under an exemption intended for chemicals released in small proportions, called “de minimis” concentrations.
Some EPA experts wanted to point this out to Senate staffers but said they were blocked from doing so.
In August 2019, EPA career official David Turk wrote that his team “noticed some nuances that we had not considered previously that might be worth raising to [Senate] staff.”
Turk, head of the data-gathering and analysis division within the EPA’s Office of Pollution Prevention and Toxics (OPPT), expressed concern that under the NDAA as drafted, companies would be able to get out of reporting their PFAS discharges if they only made up a small percentage of the total discharge.
“Note that in contacting SEPW staff, we do not plan to take a position on this issue, but rather would like to convey a consideration that we had failed to raise previously,” Turk wrote.
His colleague Daniel Bushman, who at the time served as TRI petitions coordinator and chemical list manager, added that “the fix could be as simple as the bill just saying to add PFAS to the list of chemicals of special concern with a 100 pound reporting threshold.”
Known for their persistence in the body and the environment, PFAS, or per- and polyfluoroalkyl substances, have been linked to cancers and other serious illnesses. They are present in household items such as nonstick pans, cosmetics and waterproof apparel, and in certain types of firefighting foam.
With no direction otherwise from the NDAA, the EPA’s toxics branch codified 172 types of PFAS as standard chemicals and thereby opened the reporting loophole — publishing an initial version of the rule in May 2020 and finalizing it a month later.
Under this classification, if levels of PFOA, a particularly toxic type of PFAS, constituted less than 0.1 percent of a given mixture, or if those of the other 171 kinds of the toxic compounds were below 1 percent, sites would be exempt from disclosing their discharge. Given that even unsafe levels of PFAS generally occur in comparatively tiny quantities, the classification meant that hardly any facilities would need to file a report.
Bureaucratic breakdown
EPA experts from the Toxics Release Inventory Program had recognized the problem nearly a year before — but found themselves talking to a brick wall built by the Trump administration, according to the internal correspondence.
The experts recalled trying to inform the Senate committee that the language they were incorporating would not likely lead to stricter PFAS release reporting.
But these messages apparently never reached their intended recipients.
“Starting in late July 2019 we became aware of this issue and tried to raise it with Michal on multiple occasions,” Turk wrote in a June 10, 2020, email chain.
Turk was referring to Michal Freedhoff, who at the time served as minority director of oversight — a Democratic staffer — for the Senate committee.
That same day in 2020, Turk made similar remarks to another colleague, Stephanie Griffin, noting that “SEPW staff is pissed that we didn’t tell them about the whole chemicals of special concern issue.”
“We had tried to tell them,” he continued. “It’s all very awkward.”
Asked by Griffin where the breakdown in communication occurred, Turk said that it was “initially, Mark Hartman. And then Nancy Beck.”
Mark Hartman, the OPPT’s deputy director of programs, is a career official. Nancy Beck was a Trump appointee who served as deputy and then principal deputy assistant administrator of the EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP), which houses the OPPT. Prior to taking on the EPA role, Beck worked for five years as an executive at the American Chemistry Council, a chemical industry lobbying group.
In his exchange with Griffin, Turk then recounted a situation in which he and his colleagues were blocked from sharing the issue with the Senate committee.
“Then we finally did get approval to include it in materials to send to Nancy that she might then send to SEPW, which we knew she wouldn’t send to them,” Turk added.
The “awkwardness” Turk referred to stemmed from an email sent earlier that day from Freedhoff to Sven-Erik Kaiser of the EPA’s Office of Congressional and Intergovernmental Relations, expressing shock that the May prepublication labeled PFAS as standard chemicals. The designation, she noted, could make PFAS “eligible for the de minimis concentration exemption.”
“To get around TRI reporting for a listed PFAS chemical, all one would need to do is dilute the 100 lbs in 10,000 lbs of something else,” Freedhoff wrote. “This is not what Congress intended — we intended for reporting to occur for all releases that exceeded 100 lbs.”
She stressed that the purpose of the NDAA clause “was certainly NOT to allow an entity to avoid reporting in the first place.”
A significant portion of the June 11 communications among Turk and his colleagues were redacted under Freedom of Information Act procedures. But one visible portion affirmed Freedhoff’s assertions that EPA staffers never warned her that the NDAA language could prevent PFAS from being listed as chemicals of special concern.
“We did not have direct interactions with Michal and did not control the delivery of information to Michal,” Turk added. “It appears that our messages on the topic never did reach her.”
Slipping through the cracks
Correspondence from 2019 shows that career EPA staffers made multiple attempts to warn Freedhoff about the loophole.
Kaiser, a career official at the agency, initially expressed confidence to her that the clause would do what lawmakers wanted. In a June 17, 2019, email to Kaiser about the clause in question, Freedhoff asked whether “this does what it needs to do.” Kaiser responded that the EPA believed the “language achieves the drafters’ intent.”
But less than a month later — on July 10, 2019 — Bushman, the TRI petition coordinator, noted that the draft “does not classify PFAS as chemicals of special concern.”
Bushman expressed concern that facilities would be able to claim that they stayed below the annual reporting thresholds, which he said “defeats the idea of having 100 lb reporting threshold to capture small quantities.”
Turk echoed Bushman’s comments, also noting on July 10, 2019, that the reporting loophole “would put a [serious] damper on the utility of the TRI data.”
A few weeks later, on Aug. 6, Turk wrote to several staff members and Hartman, the OPPT’s deputy director of programs, warning that under the NDAA draft as written, companies would be able to “use the de minimis exemption, which could result in the loss of reporting.”
Turk expressed similar unease on Sept. 12, 2019, alerting Kaiser that the TRI/OPPT team had generated technical assistance “when Nancy reached out for info,” but that “it was unclear” whether the EPA was “also providing that document to SEPW staff.”
Turk asked Kaiser if it “would be inappropriate to share” the special concern details with Freedhoff. Kaiser said he would “see if there’s an opportunity,” but that he thought they had previously raised the matter and that Senate staff “weren’t in position to address it at the time.”
Turk emphasized that he had only recognized this “nuance” recently — meaning that if his message was not conveyed alongside the technical data Beck had requested, then EPA staff would have “never raised it” to SEPW, as they “wouldn’t have known to do so.”
A week later, on Sept. 19, Turk once again informed his colleagues that he was uncertain as to whether the EPA team ever delivered the message to SEPW.
“I believe it went to Nancy Beck, but I don’t know if it went to SEPW,” Turk said.
To this, longtime career staffer Tala Henry, then deputy director of OPPT, responded, “I don’t think we can raise other issues,” adding that this “specific request is late in the game.”
Asked by email why she might have deemed the request “too late in the game,” Henry, who no longer works at the EPA, stressed that she had not reviewed the correspondence, which was available due to a Freedom of Information Act request.
But based on her memory of the internal EPA exchanges, she said she recalled that “the TRI team had already provided the technical assistance requested by SEPW.”
This process, Henry continued, occurred “with all requisite clearance by EPA Office of General Counsel and political leadership and coordination clearance through EPAs Office of Congressional Affairs.”
“The legislation (part of the NDAA) was imminent,” she added.
An outcome ‘of maximum awkwardness’
Nine months after the September 2019 internal EPA communications, in June 2020, it became clear Freedhoff and her SEPW team had never received the information about the loophole that agency staffers had tried to convey.
On June 9, Turk reported in an email to his colleagues that he had done “a little researching of [his] inbox” and indicated his concern that the career staffers’ message had not been relayed to the committee, despite Kaiser recalling in a past exchange with Turk that it had been.
“I don’t believe that we had yet presented this topic to him as something to share with SEPW, for at the OPPT or OCSPP level it kept getting stripped,” Turk wrote.
By this time, the EPA had issued its rule codifying PFAS as a standard chemical.
In Freedhoff’s June 10 email expressing shock about the classification, originally sent to Kaiser, she asked whether the EPA could withdraw the rule prior to its official publication and launch a notice and comment process to allow her colleagues “to describe their intent in writing.”
As the email spread among EPA staffers that day, Turk told Griffin, an OPPT team lead, that Freedhoff had asked “to pull the final rule because it doesn’t reflect their intent.”
Reiterating how he and his team had anticipated this outcome the summer before, Turk stressed that they “had discussed that SEPW would be upset when they learned that we didn’t tell them of this issue, which was one of the reasons we had tried to tell them of it.”
At around the same time, Turk told Bushman, the TRI petition coordinator, that he was “not looking forward to the ‘discussion’ with Michal.”
“It’s not like we can be open/honest with her given that we had wanted to convey all of this to her but we hadn’t been able to do so,” he continued. “‘You got it wrong, we realized that you got it wrong, and we never told you,’ also isn’t a viable discussion.”
“I suppose we can point to Nancy Beck. But, even that, seems fishy,” Turk added.
Bushman agreed, though he said he was reluctant “to take the heat for management’s unwillingness to let them know that what they were writing was not going to get them what they wanted.”
But he surmised that nothing could be done about the situation at the time, adding that “if the Admin changes then next year we could likely address it.”
Asked about the accusations lodged against her by the EPA staffers, Beck, who is today director of regulatory science at the law firm Hunton Andrews Kurth LLP, said that she did not have time to delve into all the correspondence.
Beck noted, however, that in January 2019, Alexandra Dunn became the Senate-confirmed assistant administrator of the OCSPP — the position directly above her.
“She was the decision maker, not me,” Beck wrote in an email, adding that she “went on a detail” to the National Economic Council in June 2019. “Perhaps Alex has a recollection of this issue and can discuss it with you.”
The Hill has reached out to Dunn, who is now the president and CEO of agrochemicals group CropLife America, for comment.
As Turk and Bushman wrote back and forth on that June 10, 2020, evening, the former suggested how interesting it would be “if the admin changes and Michal joins the EPA,” predicting “the most ridiculous outcome in terms of maximum awkwardness.”
Whether Turk was joking or serious, this is at least in part what happened. Freedhoff assumed Beck’s former role in January 2021 and received Senate confirmation to lead the OCSPP later that year.
A reversal — and a ‘re-reversal’
Two days after Turk and Bushman’s June 10 banter, it became clear in the email correspondence that the TRI Program Division was preparing for a potential about-face — to possibly list the 172 PFAS as chemicals of special concern.
“At this point, it appears that the NDAA listing rule will now indicate that the NDAA-added PFAS will be listed as ‘chemicals of special concern,’” Turk wrote to colleagues on the morning of Friday, June 12, warning that they “are not notifying anyone of this change.”
But just three days later, on Monday, Turk said he was “not sure what’s happening,” adding that his team was “in a momentary holding pattern.” And by Wednesday, Turk wrote that “the rule is going out as originally intended, in alignment with the prepublication version.”
Responding to what Turk described as a “re-reversal,” Bushman voiced suspicions that this was “due to conversation with the administrator and possibly some feedback from industry if someone reached out.”
The team reverted back to the prepublication version of the rule, finalizing the text on June 22, 2020, and leaving the 172 PFAS, for the time being, in the standard chemical category.
In the hands of ‘political leadership’
Freedhoff, Turk and Bushman ended up being correct in their projections that the June 2020 standard chemical listing would lead to minimal PFAS reporting.
In the aftermath of the rule’s implementation, the EPA revealed that during the first year of reporting — for 2020 — the nation’s facilities managed 800,000 pounds of PFAS in 2020 but only disclosed 9,000 pounds as releases.
Following the transition from a Trump to Biden administration and with Freedhoff at the helm, the OCSPP and OPPT did ultimately decide to categorize 189 types of PFAS as chemicals of special concern more than two years after the loophole was opened.
The agency proposed the new rule in December 2022 and finalized it in October 2023 — scrapping the de minimis exemption and making it much harder to avoid reporting releases.
While the stricter designation will apply to submissions in reporting year 2024, industry can follow the standard chemical rules for their 2023 filings, which are due by July 1, 2024, according to the EPA.
Environmental advocates worry the shift will be too little, too late.
Nathan Saunders, a Maine environmental health official who first urged The Hill to look into the correspondence, stressed just how damaging the postponement could be for communities affected by PFAS.
“The whole U.S. population was delayed from knowing PFAS release for four years,” said Saunders, who manages the Radiation Control Program in Maine’s Center for Disease Control and Prevention and delved into the issue after massive amounts of PFAS were detected on his property.
Saunders blamed the setback on what he described as a “conscious identification of PFAS chemicals as standard chemicals.”
That conscious decision, he added, occurred “at the expense of public health and to the benefit of the corporate profits.”
Responding to a long list of questions about the internal haggling that informed TRI-related decisions, EPA press secretary Remmington Belford said in an emailed statement that Freedhoff, in her prior role at the SEPW, had “worked closely with EPA career staff” as her committee drafted the clause that would add the 100-pound reporting threshold.
Noting that the threshold was discussed on multiple occasions, Belford stressed that “at no time before the law was enacted” was Freedhoff told that lowering the threshold would be insufficient to eliminate the de minimis exemption — and would therefore not ensure “that the transparency objectives of the legislation would be met.”
Once she understood the truth, Freedhoff “did attempt to get EPA to change course,” according to Belford. After the law was enacted, she learned from EPA career staff “that political leadership in the previous administration did not allow [them] to present Congress with additional technical assistance” that would have explained the de minimis issue, he added.
Belford did acknowledge, however, that there was some initial confusion among EPA staff members. The confusion arose from the fact that to date, the only TRI chemicals assigned such thresholds were those in the “special concern” umbrella, he noted.
“Certain EPA career staff members wanted to clarify for Senate staff that if their intent was to designate the TRI-added PFAS as ‘chemicals of special concern,’ the text as written would not accomplish this intent,” Beck confirmed.
Asked specifically whether Beck or Hartman — who still works at the EPA — was responsible for blocking the message, Belford responded that “some of the people involved with the technical assistance for the 2020 NDAA are no longer with the agency.”
The understanding of OCSPP career managers, Belford explained, is that “the previous administration’s political appointees opted not to share” information about the exemption with SEPW staff.
“This understanding is consistent with what Dr. Freedhoff was told at the time by EPA career staff — this decision was not made by EPA career staff or managers,” he continued.
“EPA, like all federal agencies, includes both career civil servants hired through a competitive process and political appointees appointed by the President,” Belford said. “Ultimately, EPA career staff members (including senior career managers) are led by political appointees and are obligated to follow the direction they are provided.”
Asked if industry interests influenced the chemicals’ standard designation, as Bushman suggested in internal correspondence, Belford said that “industry did not contact career staff working in EPA’s TRI program to lobby, pressure or express their preferences regarding the text of the 2020 NDAA or its implementation.”
“EPA is not aware of whether industry contacted the political leadership of the agency that was in place at that time,” he added, reiterating that “EPA career staff are required to follow the direction of the political leadership.”
Once President Biden took office, Belford said “it was an immediate priority” for both the administration and EPA career staff to designate the TRI-listed PFAS as chemicals of special concern — a decision he in part attributed to Freedhoff, who joined the OCSPP in January 2021.
“In Dr. Freedhoff’s view, this was always the intent of Congress in passing the NDAA,” Belford added.
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