EPA Escalates Efforts to Regulate PFAS

Faegre Drinker Biddle & Reath LLP

Continuing its focus on reducing potential exposure from per- and polyfluoroalkyl substances (PFAS), the Environmental Protection Agency (EPA) announced on September 8 that it would be seeking comment on its Preliminary Effluent Guidelines Program Plan 15 (Plan 15). The preliminary actions announced in Plan 15 are rulemakings to establish discharge standards for PFAS from the organic chemicals, plastics and synthetic fibers (OCPSF) category, which generally covers chemical facilities, and the metal finishing category. EPA also announced that it would be studying the PFAS discharges from the landfill and textile categories.

This announcement comes on the heels of last spring’s Advanced Notice of Proposed Rulemaking (ANPRM) that sought comment on the regulation of PFAS from different sources, including the OCPSF and other manufacturers that may have PFAS in their waste stream. That docket resulted in 29,000 comments from multiple sources addressing whether and how EPA’s Office of Water should be regulating PFAS discharges.

This announcement is the EPA’s first effort to address PFAS releases at manufacturing facilities where they are used. PFAS chemicals are widely used and can be found in many everyday household items, including carpet, furniture, food packaging and many other critical applications, like firefighting.

While EPA has previously taken steps to address PFAS in drinking water, this is the first use of existing Effluent Limit Guidelines to set discharge limits and treatment standards for facilities using PFAS chemicals. Separate rulemakings under Plan 15 will address meat and poultry facilities and stream electric power generators.

EPA is seeking comment on the Plan and is setting up rulemakings that will address a tangle of issues, including whether to try and regulate PFAS as a class or address discrete PFAS chemicals. Further, EPA will need to establish discharge limits, and a basis for those limits, in any rulemaking. Parties that may be impacted should begin analyzing their operations and collecting data so they are prepared to submit comments for the EPA to consider and respond to before a final rule is released. However, the first step is for industry to understand and provide comments to Plan 15 so that the EPA has a full understanding of the possibilities and challenges faced by the regulated community based upon its proposal. 

Plan 15 is the beginning of a process that will take several years to complete, and each step in the process will be a foundation for future actions the industry will take. Early and robust participation will pay dividends later in the process by ensuring that the foundation that is established will be based on sound data and science.

EPA and states continue to look for additional tools to address PFAS, and the U.S. Congress continues to consider legislative proposals — including those that would deem PFAS hazardous and endeavor to regulate them as a class.

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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