EPA Announces Multiple Actions on PFAS Substances

Faegre Drinker Biddle & Reath LLP

On June 10, 2021, the U.S. Environmental Protection Agency (EPA) announced multiple measures aimed at enhancing regulations on per- and polyfluoroalkyl substances (PFAS). These actions come during a week where lawmakers on the Senate Environment and Public Works Committee questioned water utilities executives and environmental agency officials on how to advance PFAS remediation efforts and limit the impact of these compounds on communities. Meanwhile, many are wondering how long it will be before we see a maximum contaminant level (MCL) for PFAS and whether any PFAS compounds will be designated as hazardous substances.

What did EPA do?

Last week’s measures from EPA include a proposed rule intended to increase oversight and gathering of data on manufacturers of PFAS. The rule builds off statutory language in the FY 2020 National Defense Authorization Act (NDAA) by requiring all manufacturers and importers of PFAS from any year dating back to 2011 to submit report information related to PFAS chemical identity, uses, production volumes, disposal, exposures and hazards.

The EPA has said the proposed rule will greatly assist the agency in their efforts to expand PFAS research, monitoring and regulatory action. The rule would focus on the more than 1,300 PFAS compounds and chemicals identified in the Toxic Substances Control Act (TSCA) EPA Inventory as of April 2021. Detailed in Section 8 of TSCA, the specific reporting standard proposed by EPA is that manufacturers will report information to the extent it is “known to or reasonably ascertainable by” the manufacturer. That standard would be defined to include “all information in a person’s possession or control, plus all information that a person similarly situated might be expected to possess, control, or know.” The EPA has said they intend to use the information collected to help determine future assessments of potential exposure and inform further regulatory authority under the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act.

This rule, when finalized, would mark the first official use of statutory authority under TSCA to collect information on the manufacturing of PFAS chemicals — a policy priority mentioned several times during the June 9 Senate Environment and Public Works Committee Hearing. EPA has requested manufacturers to electronically report their information, similar to previous TSCA reporting requirements. The agency will accept public comments on the proposed rule for 60 days following publication. When the rule is finalized, the deadline for reporting PFAS data to the EPA will be one year following the effective date of the rule.

In addition to the proposed data collection rule on manufacturers, on June 3, 2021, the EPA also announced plans to add three new PFAS chemicals to the Toxics Release Inventory (TRI). The three substances include perfluorooctyl iodide, potassium perfluorooctanoate and silver perfluorooctanoate. Through NDAA statutory authority, these three PFAS substances will be included in the TRI in addition to the 172 PFAS chemicals added in 2020. Manufacturers using these three PFAS chemicals will be required to submit reporting forms to the EPA by July 1, 2022, for data from the previous calendar year.

Lastly, the EPA advanced the withdrawal of guidance previously released by the Trump administration that the agency claimed weakened July 2020’s Significant New Use Rule (SNUR). The Significant New Use Rule prohibits companies from importing certain long-chain PFAS compounds as part of “surface coating” on consumer products and components without prior EPA review and approval. Products that could contain these long-chain PFAS include automotive parts, carpets, furniture and electronic components. The compliance guidance issued by the Trump administration limited what could be considered “surface coating” and provided exemptions for “unintentionally present” pollutants as well as for companies that process chemicals. That compliance guidance has been rescinded and is no longer in effect or posted on the agency’s website.

What are we waiting for?

While the EPA has started to move forward on several regulatory steps to increase the reporting requirements for PFAS chemicals, there are two major regulatory actions that will continue to garner attention. The first is how quickly will EPA establish a maximum contaminant level (MCL) for PFOA and PFOS and the other is will EPA designate any PFAS chemicals as hazardous substances or hazardous wastes? While the Biden administration EPA reaffirmed previous regulatory determinations under the Safe Drinking Water Act, they will likely face continued criticism that they are not moving quickly enough to establish an MCL.

After initially delaying the promulgation of a final determination under the SDWA for PFOA and PFOS, it was reissued in March. The next step is for EPA to propose a rule, which must be done in 24 months, and a regulation must be finalized within 18 months of the rule proposal. The question is: will EPA expedite the existing standard setting process? At a recent Senate EPW hearing the American Water Works Association noted that, “… a scientific, risk-based and data-driven process is indeed going to take a significant amount of time. By-passing such a process may result in ineffective use of limited resources.” While another witness at the hearing noted to the members of the committee that, “[y]ou have the power to set a two-year deadline for federal drinking water standards for PFAS, as Senator Capito proposed in the Protect Drinking Water from PFAS Act …” There are conflicting pressures on EPA to both move quickly and to follow the existing process, but managing both will be difficult. If they move too quickly, they likely increase the legal vulnerability of any final action. If they don’t move quickly enough, they will undoubtedly face criticism.

The EPA has also been publicly silent on the designation of any PFAS chemicals as hazardous substances. The designation has been a priority for some who see that as a pathway to a cost recovery mechanism for cleanups. The Trump administration prepared an Advanced Notice of Proposed Rulemaking to receive public feedback on the options available for managing PFAS under different environmental laws; the Biden administration has not yet made its position on how to proceed on this known. Advancing the ANPR would inform the process, establishing a robust record in support of what is widely considered inevitable agency action.

The Biden administration released their regulatory agenda late last week. Establishing an MCL through the SDWA and designating PFOA and PFOS as hazardous substances under CERCLA were both listed as long-term actions for the EPA. A regulatory timeframe for designating PFAS as hazardous substances was not indicated, while the deadline for EPA to propose a rule for an MCL and a national primary drinking water regulation is set for March 3, 2023.

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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