In the past few months, the U.S. Environmental Protection Agency (U.S. EPA) has done three significant things to tighten controls on per- and polyfluoroalkyl substances (PFAS).

I. Proposing to List PFAS as ‘CERCLA Hazardous’

The first measure to increase transparency around when and how these ubiquitous chemicals are being released into the environment was proposing to list PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Among CERCLA’s many regulatory requirements, it provides the federal government broad authority to regulate hazardous substances, respond to releases of hazardous substances and develop long-term solutions to address issues involving hazardous substances. Further, it provides a liability framework for governments or other private parties to hold responsible persons liable for cleanup costs if designated hazardous substances or substances determined to present an “imminent and substantial danger to the public health or welfare” are released into the environment.

In its Sept. 6 Notice of Proposed Rulemaking (NPRM), U.S. EPA proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS, the most commonly made and used PFAS in the U.S.), including their salts and structural isomers, as CERCLA hazardous substances. This designation would have several immediate impacts:

• First, the rulemaking would require entities to immediately report environmental releases of these two PFAS that meet or exceed the reportable quantity set under CERCLA. The proposed reportable quantity is 1 pound or more in a 24-hour period. According to U.S. EPA, entities would not be required to report past releases of PFOA or PFOS, as they were not yet listed as hazardous substances. Failure to make an immediate report is a criminal offense.
• Second, it would make it easier for U.S. EPA to order cleanup actions at sites where these chemicals are located and have been released into the environment, as well as for the agency to obtain court orders to hold parties that contributed to such a release financially liable for remediation and mitigation measures. Liability for CERCLA cleanups runs into the millions or even hundreds of millions of dollars per site.
• Third, it would make it easier for private parties to bring actions against other potentially responsible parties to recover their costs for cleaning up PFAS contamination.

The public comment period ended Nov. 7 with over 600 filed. As soon as the final rule is published in the Federal Register, we will provide an update and summary of the regulation.

II. Listing PFAS as ‘A Contaminant Candidate in Drinking Water’

The U.S. EPA published in November the Final Fifth Drinking Water Contaminant Candidate List (CCL 5). This action may result in costly new treatment obligations for municipalities and other water authorities who provide drinking water.

The Contaminant Candidate List is a “list of contaminants in drinking water that are currently not subject to any proposed or promulgated national primary drinking water regulations.” Further, “these contaminants are known or anticipated to occur in public water systems and may require regulation under the Safe Drinking Water Act (SDWA).”

The updated candidate list includes the entire chemical group of PFAS. Listing on the CCL is the first step in the regulatory process to set drinking water standards for public water suppliers. This change will also affect facilities with permitted industrial wastewater and industrial stormwater discharges and facilities that treat drinking water and process water, since U.S. EPA looks to drinking water standards in setting such requirements.

III. Urging the Use of the NPDES Permit Program to Curb PFAS Discharges into Waterways

The U.S. EPA issued a memorandum Dec. 5 urging states to address and accelerate efforts to reduce PFAS discharges to waterways, noting that the following kinds of industrial facilities may discharge PFAS to surface waters: military bases (particularly airfields); organic chemicals, plastics & synthetic fibers (OCPSF); metal finishing; electroplating; electric and electronic components; landfills; pulp, paper and paperboard; leather tanning and finishing; plastics molding and forming; textile mills; paint formulating; and airports.

Under the federal Clean Water Act (CWA), all but a few states are the permitting authority for discharges to waters of the United States, applying federal effluent limitation guidelines in order to set the discharge standards. These CWA discharge permits are issued under the National Pollutant Discharge Elimination System (NPDES) program to help regulate and curb pollution discharges into waters of the United States from point sources. These sources include process wastewater and stormwater from industrial facilities, as well discharges from Publicly Owned Treatment Works (POTWs), or municipal sewage treatment plants. Those POTWs, in turn, regulate discharges by industries to such treatment plants, so that these new PFAS requirements will also affect such “indirect dischargers.”

The recent memorandum builds on an earlier one from last April outlining ways U.S. EPA can leverage the NPDES program and cooperatively work with state and local governments and private parties to reduce the discharge of PFAS. In particular, U.S. EPA recommends that states and municipalities identify known or suspected sources of PFAS using the most current sampling and analysis methods in their NPDES programs. Further, U.S. EPA suggests using pretreatment provisions, effluent-and wastewater residuals monitoring, permitting limitations and other best management practices to address PFAS discharge. According to the memorandum, “this program will also enable U.S. EPA and the states to obtain comprehensive information on the sources and quantities of PFAS discharges, which can be used to inform appropriate next steps to limit the discharges of PFAS.”

If your facility has a NPDES permit or if it discharges to a municipal treatment plant, it is important to understand these requirements, which may start by requiring monitoring for PFAS in the discharges.

The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties. Opinions and conclusions in this post are solely those of the author unless otherwise indicated.

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