U.S. Environmental Protection Agency PFAS Strategic Roadmap: A Not-So-Brief Overview — with More to Come

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For the past decade, environmental regulators in the United States have considered poly- and per-fluoroalkyl substances (PFAS) to be “emerging contaminants,” based on initial studies linking two of the potentially thousands of PFAS to various alleged health effects.  The October 2021 release of a “PFAS Strategic Roadmap” (Roadmap) by the U.S. Environmental Protection Agency (U.S. EPA) shows that era is coming to an end. Over the next three years, U.S. EPA will be undertaking major moves to control and clean up PFAS using a range of regulatory tools.

The twenty-three pages of U.S. EPA’s Roadmap describe a laundry list of actions that the agency plans to undertake to address PFAS issues between now and 2024 under statutes including the Toxic Substances Control Act (TSCA), Safe Drinking Water Act (SDWA), Emergency Planning and Community Right-to-Know Act (EPCRA), Clean Water Act (CWA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), and Clean Air Act (CAA).  A summary of proposed actions and their expected timeframes is below:

Date Statute Action
Ongoing TSCA Denial of low-volume exemption applications under TSCA for new PFAS entering the market
Ongoing TSCA Issue TSCA Section 5(e) orders for significant new uses of existing PFAS imposing “rigorous safety requirements”
Ongoing TSCA Increase compliance tracking for TSCA notice requirements and consent decrees
Ongoing Multiple Utilize enforcement authority under RCRA, TSCA, CWA, SDWA and CERCLA to identify past and ongoing releases of PFAS through inspections and information requests, and address any imminent and substantial endangerment of human health through appropriate action
4Q 2021 TSCA Order PFAS manufacturer testing under TSCA section 4
4Q 2021 SDWA Require expanded drinking water system sampling for PFAS from 2023-2025
2Q 2022 Not applicable Establish PFAS Voluntary Stewardship Program
2Q 2022 EPCRA Update list of PFAS subject to Toxics Release Inventory reporting requirements and categorize PFAS on the TRI list as Chemicals of Special Concern with lower reporting thresholds
2Q 2022 CERCLA Propose designation of PFOA and PFOS as CERCLA hazardous substances
2Q 2022 CERCLA Issue Advanced Notice of Proposed Rulemaking to seek public input on designation of other PFAS chemicals as CERCLA hazardous substances
3Q 2022 TSCA Designate abandoned uses of PFAS as triggering significant new use requirements under TSCA if reactivated
4Q 2022 CAA Evaluate technical information and regulatory options for addressing PFAS as a potential hazardous air pollutant
4Q 2022 TSCA Finalize proposed rule to increase information reporting requirements regarding PFAS manufacture and use
4Q 2022 SDWA Propose national Primary Drinking Water Regulation for PFAS chemicals PFOA and PFOS
4Q 2022 CWA Incorporate PFAS monitoring requirements into federally-issued NPDES permits and potentially propose substantive conditions such as product elimination and substitution requirements and stormwater Best Management Practices for aqueous firefighting foams

Issue federal guidance to state CWA permitting authorities recommending use of same approaches as in federally-issued permits

4Q 2022 CWA Develop national recommended water quality criteria for PFAS to protect aquatic health
2022-2024 CWA Develop technology-based regulatory limits on discharges of PFAS in wastewater for specific industries, potentially including organic chemicals, plastics and synthetic fibers; metal finishing; electroplating; landfills; electrical and electronic components; textile mills; leather tanning and finishing; plastics molding and forming; and paint formulating
4Q 2023 2020 National Defense Authorization Act Update guidance on disposal/destruction of PFAS and PFAS-containing materials
4Q 2024 CWA Develop national recommended water quality criteria for PFAS to protect human health

In addition to these regulatory steps, U.S. EPA plans to continue toxicity research and assessments for “GenX” PFAS chemicals, as well as five other PFAS (PFBA, PFHxA, PFHxS, PFNA, and PFDA), to be followed by the issuance of new health advisories in 2022 and beyond that state, local, and Tribal regulators may use in developing enforceable PFAS limits.

Overall, businesses that produce and use PFAS will face a significant number of new regulatory considerations in the future. This post has provided a broad overview of U.S. EPA’s planned actions and timeline regarding PFAS, but stay tuned for more detailed looks at how U.S. EPA may consider environmental justice considerations in the following: regulating PFAS; potential TSCA implementation issues; regulation of PFAS in wastewater discharges through CWA Effluent Limitation Guidelines and individual NPDES permits; PFAS regulation under CERCLA; and possible parameters for a Voluntary Stewardship Program as referenced in the Roadmap. Meanwhile, the Dickinson Wright team will continue to follow new developments in this evolving area.

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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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