PFAS, a large class of environmentally persistent synthetic chemicals, have been, and still are, manufactured and used in a range of commercial and industrial applications. Individual PFAS subtypes can vary greatly in uses, chemical properties, and environmental longevity. PFAS can be present in a variety of sources, ranging from food and drinking water to commercial household products to building materials. Some of the chemicals — including perfluorooctanoic acid (“PFOA”), perfluorooctane sulfonate (“PFOS”), perfluorobutane sulfonic acid (“PFBS”), and hexafluoropropylene oxide and its salt (“GenX” chemicals) — have been linked to various adverse health impacts. Other PFAS compounds or subclasses may not pose similar risks, and for many more the data is currently incomplete. A number of local, state, and federal governments are looking to address existing PFAS contamination and further understand the nature, composition, and impacts of these chemicals. Several high profile settlements related to PFAS contamination in industrial communities over the last few years have further spurred interest in the chemicals.2
The Biden administration has been very clear that tackling PFAS is a high priority on its agenda. The current head of EPA, Michael Regan, made commitments throughout his confirmation hearings to prioritize and take an aggressive approach to addressing PFAS. To that end, EPA has taken a number of actions over the past year to address PFAS in a range of ways, including, but not limited to:
- Proposing two rulemakings under the Resource Conservation and Recovery Act (“RCRA”) concerning initiating the process to designate certain PFAS chemicals as hazardous constituents and clarifying EPA’s authority to require investigation and cleanup of wastes through the RCRA corrective action process regarding PFAS in October 2021.
- Publishing a final toxicity assessment for PFBS and GenX chemicals in April and October 2021, respectively, and a draft assessment for perfluorobutanoic acid (“PFBA”) in August 2021.
- Beginning the process to designate PFOA and PFOS as hazardous substances in June 2021.
- Publishing two new rulemakings revising effluent limitation guidelines and pretreatment standards intended to reduce PFAS in wastewater discharges in February 2021.
The extent to which PFAS compounds beyond PFOA, PFOS, and GenX chemicals become more stringently regulated will largely depend on the results of EPA’s identification and testing programs. Future activities focused on remediating existing contamination may also remain unidentified until effective treatment and mitigation technologies are developed. In the meantime, EPA has committed itself to provide regular reporting and updates on its PFAS initiatives.
Breaking Down the PFAS Strategic Roadmap
The Roadmap presents currently planned agency activities and rulemakings organized by the responsible EPA office along with approximate milestone dates for each action. The planned activities given the most detail by this iteration of the Roadmap can be categorized as primarily part of either the “Research” or “Restrict” central directives. There are some activities that can be described as remedial, but EPA’s commitments are light on specifics.
The Roadmap includes a broad range of testing, research, and other data collection activities related to PFAS as an immediate focus for the agency. EPA hopes to develop “the best available science” by increasing its understanding of PFAS exposure, toxicity, and effects, control, disposal, and remediation. Importantly, EPA has expressed interest in determining the cumulative burden of these substances, particularly in environmental justice communities.
In October of this year, as obligated by the 2020 National Defense Authorization Act (“NDAA”), EPA released a National PFAS Testing Strategy to guide its selection of PFAS “for which the Agency will require testing using Toxic Substances Control Act (“TSCA”) authorities.” EPA expects to use its TSCA authority to require PFAS manufacturers to conduct and fund these studies. This planned testing follows the recent release of a toxicity assessment for GenX chemicals and ongoing assessments of five other previously identified PFAS.3 Additionally, EPA is planning on ramping up its PFAS data collection in the near future with revisions to PFAS reporting requirements under Toxic Release Inventory (“TRI”) and TSCA Section 8 regulations planned for 2022, a nationwide monitoring program for PFAS in public drinking water systems (pending sufficient funding from Congress), and continuing its data reviews of potential PFAS discharges related to specific industries. On the research side, EPA has committed to developing multi-lab validated analytical methods for detecting and measuring PFAS across a multitude of mediums and exposure pathways. The research and science supporting this work is much further along for some materials, like drinking water, compared to measuring PFAS in air emissions, where the research remains in its infancy, and the Roadmap’s timelines reflect so.
A high level snapshot of planned “Research” activities identified in the Roadmap includes, but is not limited to:
- Complete industry-specific data reviews and studies where EPA seeks to obtain preliminary information on potential PFAS discharges, by Winter 2023, or requires more information to support potential rulemaking proceedings, by Fall 2022, and continue to monitor industries where voluntary PFAS phaseouts are already occurring to inform whether future regulatory actions are necessary or not in Fall 2022.
- Develop a technical foundation to address PFAS air emissions by identifying sources, developing monitoring approaches, and understanding air emission pathways for human and environmental exposure.
- Publish final toxicity assessments for PFBA, PFHxA, PFHxS, PFNA, and PFDA, which will inform future health advisories and potential regulatory actions.4
- Finalize a data-gathering rule under TSCA Section 8(a)(7) by the end of 2022 that would allow EPA to collect information on “uses, production volumes, disposal, exposures, and hazards” for any PFAS manufactured since 2011.
- Conduct a nationwide drinking water system sampling program from 2023 to 2025 pursuant to EPA’s proposed Fifth Unregulated Contaminant Monitoring Rule, published in March 2021, for 29 select PFAS.5
- Publish and initiate a Clean Water Act (“CWA”) rulemaking to promulgate a multi-laboratory validated analytical method to detect and “measure up to 40 specific PFAS in various environmental media, including wastewater, surface water, and biosolids,” by Fall 2022, and publish updates to current EPA Methods 533 and 537.1 for monitoring specific PFAS in drinking water by Fall 2024.
EPA outlined its actions to restrict the introduction of new PFAS into commerce and the environment. EPA’s goal is to minimize PFAS contamination and exposure, and “place responsibility” for addressing exposure and hazards on those directly involved with the PFAS supply chain, significant users, and treatment and disposal facilities. The agency is moving forward on rulemakings that would restrict future releases and setting national standards and advisories for certain PFAS EPA has identified as human health and environmental risks. At this point in time, such rulemakings primarily concern PFOA and PFOS, two of the more well-studied PFAS that EPA has linked with negative human health effects. But these EPA actions may very well become the blueprint for future regulatory action as its research on other PFAS substances matures. Finally, EPA is also proposing a few permitting changes designed to limit or reduce the release of PFAS more generally from industrial and commercial activities.
A snapshot of EPA’s planned actions to “Restrict” PFAS releases and exposure includes, but is not limited to:
- Designate inactive or abandoned PFAS or PFAS applications as significant new uses under the TSCA which will then subject those PFAS and their uses to additional EPA conditions, safety measures, and approvals prior to readoption by industry.
- Limit PFAS discharges from certain industrial sources, including organic chemicals, plastic, and synthetic fibers (“OCPSF”), metal finishing, and electroplating via Effluent Limitation Guidelines by Summer 2024.
- Publish a final National Primary Drinking Water Regulation (“NPDWR”) for PFOA and PFOS in water supplies by Fall 2023.
- Require new National Pollutant Discharge Elimination System (“NPDES”) federal permit conditions designed to reduce PFAS discharges and recommend the adoption of these conditions by analogous state permitting authorities.
- Publish final ambient water quality criteria for PFOA and PFOS for aquatic life, by Winter 2022, and human health, by Fall 2024.
- Publish health advisories under the Safe Drinking Water Act (“SDWA”) for GenX and PFBS to help Tribes, states, and local governments decide whether local regulatory actions are necessary.
EPA has a shared a few commitments related to its final PFAS directive, “Remediate,” but most of the Roadmap primarily speaks of remediation activities and cleanup in broad terms with few specific details on how the remediation will be implemented. Most significantly, EPA will consider designating PFOA, PFOS, and potentially other PFAS and their precursors as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund).
When questioned about possible implications for airports and military facilities which may have been using PFAS in firefighting foams, EPA Council on PFAS Co-Chair Radhika Fox noted that EPA will be coordinating with the Federal Aviation Administration and Department of Defense throughout the rulemaking process. Other less specific activities laid out by the Roadmap include the development of PFAS disposal guidance, mitigation technologies, and public education campaigns.
A snapshot of initiatives to help Remediate PFAS contamination includes, but is not limited to:
- Issue Notice of Proposed Rulemaking to designate PFOA and PFOS as hazardous substances under CERCLA and Advanced Notice of Proposed Rulemaking on other PFAS and PFAS precursors by Spring 2022.
- Publish updates to the 2020 interim guidance on destroying and disposing of certain PFAS and PFAS-containing materials by Fall 2023, as required by the 2020 NDAA.
- Develop technologies for reducing or removing PFAS in the environment, including water treatment methods for drinking water systems by Fall 2022.
- Apply enforcement tools under RCRA, TSCA, CWA, SDWA, CERCLA, and other authorities to identify and address historical and current releases of PFAS into the environment.
- Educate the public about the risks of PFAS and engage affected communities across EPA regions to help reduce potential health risks while effective remediation techniques are developed.
New PFAS regulation from EPA appears inevitable in the near future. Businesses should consider taking proactive measures to prepare for the forthcoming rules by examining whether PFAS affects their supply chains, waste streams, and/or properties. The most potentially disruptive and costly actions by EPA in this space will center on potential rules classifying PFOS and PFOA as CERCLA “hazardous substances” and rules designating four PFAS chemicals—PFOS, PFOA, GenX and PFBS—as “hazardous constituents” under RCRA. Both sets of rules and guidance could potentially increase the costs of handling, storing, and disposing of PFAS, in addition to expanding the scope and costs of cleanups. Interested companies should keep an eye out for updates to the Roadmap and take note on EPA’s annual reports on its PFAS initiatives. Businesses may want to consider keeping track of which PFAS EPA selects for testing under its testing strategy as the Roadmap provides a clear outline of the types of regulatory actions that could follow.
In addition, while there is certainly significant PFAS activity at EPA, many other agencies are also taking action. A recent White House press release highlighted ongoing PFAS initiatives by the Food and Drug Administration, Federal Aviation Administration, and the Departments of Agriculture, Homeland Security, and Health and Human Services. Businesses should also be mindful that these federal agencies, as well as the states, make take additional action on PFAS in the future.
The PFAS Taskforce
V&E’s PFAS Taskforce is dedicated to helping our clients navigate the emerging and complex law and regulations that may be used to address PFAS and related chemicals. By actively tracking and analyzing the different federal and state regulatory approaches to addressing PFAS — whether in water, groundwater, soil, and air — and engaging with the evolving scientific understanding of PFAS substances, we can help our clients build short- and long-term strategies to address potential liability, remediation, and litigation concerns regarding these emerging contaminants. Drawing upon the significant capabilities in our cross-office environmental team, V&E’s PFAS Taskforce is on hand to provide practical and tailored guidance for our clients as they prepare for the shifting PFAS landscape.
1 The EPA Council on PFAS is group of senior EPA officials, formed on April 27, 2021, tasked with “strategiz[ing] the best way to use EPA’s authorities, expertise and partnerships to mitigate and reduce PFAS pollution. . . .” Michael S. Regan, Memorandum Regarding Per- and Polyfluoroalkyl Substances, EPA (Apr. 27, 2021), https://www.epa.gov/sites/default/files/2021-04/documents/per-and_polyfluoroalkyl_substances.memo_.signed.pdf.
2 See Alex Guillèn, Chemical Companies to pay Delaware $50 million over PFAS contamination, PoliticoPro (Jul. 13, 2021); 3M, Ala. Communities reach $98M pollution settlement, APNews (Oct. 20, 2021), https://apnews.com/article/business-environment-and-nature-alabama-lawsuits-environment-a4dda1162d018987d691064b02873557; Arathy S Nair, DuPont settles lawsuits over leak of chemical used to make Teflon, Reuters (Feb. 13, 2017), https://www.reuters.com/article/us-du-pont-lawsuit-west-virginia/dupont-settles-lawsuits-over-leak-of-chemical-used-to-make-teflon-idUSKBN15S18U.
3 See also E.A. Crunden and Ariel Wittenberg, EPA deems ‘forever chemical’ haunting N.C. toxic to humans, E&E News: Greenwire (Oct. 25, 2021), https://www.eenews.net/articles/epa-deems-forever-chemical-haunting-n-c-toxic-to-humans/.
4 Draft assessments for PFHxA, PFHxS, PFNA, and PFDA are expected sometime in 2022. A final assessment for PFDA is expected in Fall 2022.
5 The extent of this sampling program will depend on Congressional appropriations.