Biden Roadmap Signals New Era of PFAS Regulation

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On October 18, the Biden administration and the U.S. Environmental Protection Agency (EPA) announced new plans for regulation of per- and polyfluoroalkyl substances (PFAS). The announcements are unprecedented in their breadth and depth of PFAS regulation—covering eight agencies and a range of issues, including PFAS in drinking water, the country’s food supply and consumer products. The announcements follow increased scrutiny of PFAS over the past five years under the Obama and Trump administrations and by a number of state governments. Much of the prior focus on PFAS has come from EPA and its state counterparts addressing a small group of intensely studied, environmentally ubiquitous, long-chain PFAS, including perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), which have not been manufactured in the U.S. since 2015 and 2002, respectively.

The Biden administration’s interagency regulatory effort will include the Food & Drug Administration (FDA), U.S. Department of Agriculture (USDA), Department of Transportation (DOT), Department of Defense (DOD), Department of Homeland Security (DHS), Department of Health & Human Services (DHHS), White House Council on Environmental Quality (CEQ), and EPA. EPA will continue to take the lead on a number of efforts to address PFAS, which were announced on Monday concurrently with the administration’s PFAS plans as part of an updated PFAS Roadmap. EPA’s focus will include PFOA and PFOS but also will shift to dozens of other PFAS chemicals, including many short-chain PFAS that remain on the market in the U.S. The range of actions on PFAS will include accelerated designations of PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), widespread sampling for dozens of PFAS in Americans’ drinking water supplies and a number of new toxicological studies of PFAS.

EPA’s PFAS Roadmap includes, most notably:

  • Establishing national primary drinking water standards for PFOS and PFOA with associated monitoring requirements and evaluation of additional PFAS chemicals.
  • Developing and proposing a rulemaking to designate PFOA and PFOS as CERCLA hazardous substances by summer 2023, as well as issuing an advanced notice of proposed rulemaking seeking public input on whether to similarly designate other PFAS chemicals.
  • Enhancing PFAS reporting under the Toxics Release Inventory by closing loopholes and removing exemptions and exclusions for toxic chemical reporting by spring 2022.
  • Finalizing a PFAS reporting rule under the Toxic Substances Control Act (TSCA) Section 8 by winter 2022 in order to obtain a more thorough assessment of PFAS sources and quantities nationwide.
  • Publishing the final toxicity assessments for PFAS chemicals, including short-chain PFAS, GenX, PFBA, PFHxA, PFHxS, PFNA and PFDA by fall 2021.
  • Restricting PFAS discharges from industrial sources via Effluent Limitations Guidelines (ELGs)—which establish national technology-based regulatory limits on pollutants discharged into municipal treatment works and surface waters—by 2022.
  • Reducing PFAS discharges and increasing PFAS monitoring via the existing National Pollutant Discharge Elimination System (NPDES) permitting regime.
  • Publishing final recommended ambient water quality criteria for PFAS by winter 2022 for aquatic life and fall 2024 for human health.
  • Developing the foundation for future designation of certain PFAS as Hazardous Air Pollutants (HAPs) under the Clean Air Act.
  • Undertaking miscellaneous research and development of technology for assessing and remediating PFAS in the environment.

President Biden’s multi-agency PFAS plan includes:

  • EPA monitoring of 29 PFAS compounds in drinking water via the Unregulated Contaminant Monitoring Rule (UCMR 5) program.
  • Expansion of FDA and USDA food supply testing to better understand dietary exposure to PFAS, with a heightened focus on seafood.
  • Completion of comprehensive PFAS cleanup assessments at affected DOD and National Guard locations by the end of 2023, as well as enhanced research and development by DOD and the Federal Aviation Administration (FAA) for PFAS-free replacement firefighting foam technology and interim PFAS discharge reduction in firefighting equipment testing.
  • Continued investigation and PFAS remediation at DHS facilities to protect emergency responders, with coordinated efforts by the Federal Emergency Management Agency (FEMA) to address PFAS usage in firefighting foams and associated emergency response planning.
  • Comprehensive DHHS review and research—including contributions from the Centers for Disease Control and Prevention (CDC) and Agency for Toxic Substances and Disease Registry (ATSDR)—on the effects of PFAS on human health (including potential effects on the immune system), methodologies for measuring exposure, and clinical care guidance for treating exposure to PFAS.
  • Formation of the Interagency Policy Committee on PFAS, within the CEQ, to coordinate PFAS research, remediation and removal activities throughout the entire federal government.
  • Proposed grants in the Bipartisan Infrastructure Deal to address emerging contaminants through the State Revolving Funds and small and disadvantaged community programs.

EPA’s and the administration’s PFAS regulatory announcements do not appear to include some of the more robust demands of environmental groups and stakeholders, including listing some or all PFAS as “hazardous waste” under the Resource Conservation and Recovery Act (RCRA), banning the incineration of PFAS wastes, and mandatory testing for PFAS in sludge applied to agricultural fields. Many of the individual regulatory efforts in EPA’s and the administration’s plans were already well underway. Nonetheless, EPA and the Biden administration have signaled that they plan to make regulation of PFAS a cornerstone of their environmental policy over the next three years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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