PFAS – Regulation Is Upon Us

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Recent Regulatory Steps

On January 14, 2021, on the eve of President Biden’s inauguration, EPA issued an advance notice of proposed rulemaking, seeking comment on whether PFOA and PFOS should be regulated under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). This will likely lead to the designation of PFOA and PFOS as “Hazardous Substances” under CERCLA and RCRA. Such a designation will likely lead to EPA and the state agencies taking more aggressive action to investigate and identify new sites where PFAS may be a concern and also to review the status of existing sites where PFAS may be a concern that was not addressed in previous investigations or response actions and to potentially pursue response actions at such sites.  At this moment though there is only the interim policy that EPA provided to assist in addressing PFOA and PFOS groundwater contamination. The comment period on this advance notice just closed and we anticipate a proposed rulemaking in the near future.

Next, EPA reissued the final regulatory determinations for PFOA and PFOS under the Safe Drinking Water Act (SDWA), which was published in the Federal Register on March 3, 2021. This determination will begin the process to label both PFOA and PFOS as hazardous substances under the SDWA and will allow EPA to set Maximum Contaminant Levels (“MCL”) for both compounds. This process usually takes approximately two years and will allow EPA to eventually propose a national drinking water standard for both PFOA and PFOS. This will also allow EPA to require cleanup of some PFOA and PFOS where it is found in potential drinking water sources. The current suggested maximum concentration is 70 parts per trillion (ppt) for both compounds based on EPA guidance.

Lastly, on March 11, 2021, EPA published the proposed fifth Unregulated Contaminant Monitoring Rule, which requires data to be collected regarding the presence of 29 PFAS compounds in drinking water. The proposal seeks 12 months of data collected by various public water systems from January 2023 and December 2025. EPA will be holding two virtual stakeholder meetings on April 6, 2021 and April 7, 2021, and the comment period will be open for 60 days.

In addition to the regulatory steps that EPA has taken, Michael Regan’s recent confirmation as Administrator of the EPA is likely to further accelerate PFAS regulations. A former secretary of the North Carolina Department of Environmental Quality (NC DEQ), Regan is no stranger to PFAS. Regan was the secretary of the NC DEQ when it sued Chemours for allegedly discharging PFAS into the Cape Fear River in eastern North Carolina. Regan’s prior experiences with PFAS, coupled with the Biden Administration’s commitment to prioritizing PFAS, will likely result in new regulations sooner rather than later

Background

PFAS are synthetic chemicals used in a number of industrial processes and in the manufacturing of certain consumer goods because of their fire resistance and their ability to repel oil, stains, grease, and water. Regulators are concerned about these compounds’ persistence in the environment, especially in drinking water, and have nicknamed the PFAS chemicals generally “forever chemicals.”

To date, EPA has added 172 PFAS chemicals to the Toxic Release Inventory (“TRI”), which requires reporting the manufacture, processing and use of these substances if the amount is more than 100 lbs. However, there are approximately 3,500 different compounds under the umbrella of PFAS, and the available data regarding their chemical properties and toxicity vary greatly. The most well-known versions, and considered to be of greatest concern, are long chain PFAS, perfluoroctanoic acid (“PFOA”) and perfluoroctane sulfonate (“PFOS”). EPA has taken the position that long term exposure to these chemicals may result in birth defects, cancer, liver effects, immune system effects, thyroid effects, and other health issues.

Conclusion

PFAS regulation is moving quickly under the Biden Administration. Additionally, states have already begun setting their own limits and regulating PFAs on their own and will continue to do so as the public eye remains on PFAS.

Since 2019, when EPA issued its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan, EPA has been developing the facts and legal authority necessary to officially regulate Per- and polyfluoroalkyl substances (“PFAS”). For this background see PFAS: A new source for regulatory concern. The Environmental Team at Husch Blackwell has been closely following these trends and has already assisted clients in this area. Additionally, some of the Husch Blackwell Environmental Team recently presented an Emerging Issues: PFAS Assessment and Mitigation webinar for the Illinois Manufacturers’ Association at the Annual Environmental Conference. You can find a copy of this recording here. Prior to that, the Environmental Team presented a webinar in 2019 that offered legal and technical updates on expected PFAS developments as well as technical approaches to addressing PFAS in the environment. Husch Blackwell’s Environmental Team has the knowledge and expertise to help clients respond to agency concerns with respect to new or existing contaminated sites and/or areas of concern related to drinking water.

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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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