Vinson & Elkins LLP

PFAS regulation is one of the hot environmental topics and a key issue to watch during this next year. In this series of posts, V&E will address the increasing regulatory attention concerning a group of chemicals known as PFAS and the potential impacts this may have on affected industries.

Often referred to as “forever chemicals,” per- and polyfluoroalkyl substances (“PFAS”) are synthetic chemicals that have been widely used across the United States for several decades. Major environmental regulations and guidance aimed at addressing the potential adverse health effects of PFAS have been on the proverbial “horizon” for years and, in 2019 and 2020, the EPA ramped up regulatory activity. Although much of this activity is significant, the EPA has thus far avoided the action that would have the most wide-spread implications; namely, actually including some PFAS chemicals on the list of “hazardous substances” regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Resource Conversation and Recovery Act (“RCRA”). EPA has, however, taken initial steps that could result in such regulation.

In this post, we’ll address the recent PFAS regulations and guidance and look ahead to what may change in 2021. Given the numerous industries that the EPA has indicated could be impacted by its actions last year — petroleum refineries and terminals, paper and textile mills, a number of industrial manufacturers (including for polymers, cleaning products, and paints), aviation operations, wastewater treatment plants, and landfills — it is important to understand what the EPA has already done, while also looking ahead to potential changes.

Regulations focused on PFAS have been added relatively steadily over the past twenty years or so with Significant New Use Rules published in March 2002, December 2002, October 2007, and October 2013.1 Additionally, in 2006 the EPA introduced the PFOA Stewardship Program with aims for participating companies “to commit to reducing PFOA from facility emissions and product content by 95% no later than 2010, [from a year 2000 baseline] and to work toward eliminating PFOA from emissions and product content no later than 2015.” However, 2019-2020 proved far busier still for PFAS regulations and guidance:

  • In February 2019, the EPA released its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan describing its comprehensive approach to “identifying and understanding PFAS, . . . addressing current PFAS contamination, preventing future contamination, and effectively communicating with the public about PFAS.” The following year, on February 26, 2020, the EPA issued its first update to the Action Plan and identified PFAS in drinking water as a top concern. Alongside federal, state, local, and tribal partners, the agency worked to develop a new validated method for testing additional PFAS compounds in drinking water. In addition, the EPA published a proposed rule on March 10, 2020 to regulate perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”), among other drinking water contaminants, under the Safe Drinking Water Act (“SDWA”). The proposed rule received more than 11,500 comments.2
  • A few months later, on June 22, 2020, the EPA issued a final rule adding 172 PFAS chemicals to the Toxic Release Inventory (“TRI”) subject to reporting under the Emergency Planning and Community Right-to-Know Act (“EPCRA”) and the Pollution Prevention Act (“PPA”). The rule also set a “manufacture, processing, and otherwise use” reporting threshold of 100 pounds for each PFAS being added to the list.
  • The EPA announced a PFAS-related update to its Drinking Water Treatability Database on July 15, 2020. The Database provides information about the possible treatment options that states, tribes, local governments, and water utilities may use to help manage PFAS in drinking water. The update added four new PFAS compounds bringing the total number of PFAS compounds (inclusive of PFOA and PFOS) in the database to twenty-six.
  • On July 27, 2020, the EPA finalized amendments to the significant new use rule (“SNUR”) for long-chain perfluoroalkyl carboxylate chemical substances and perfluoroalkyl sulfonate chemical substances. The rule requires notification to the EPA at least 90 days before commencing the manufacture, import, or processing of these long-chain chemical substances for significant new uses. Commencement of such manufacture, import or processing is precluded until the EPA reviews the notice, makes an appropriate determination, and takes such actions as required in regard to that determination.
  • On November 22, 2020, the EPA issued a memorandum detailing its Interim Strategy for Per- and Polyfluoroalkyl Substances in Federally Issued National Pollutant Discharge Elimination System Permits. The strategy focuses on addressing PFAS in EPA-issued permits under the Clean Water Act (Section 402) and recommends including permit requirements for phased-in monitoring and best management practices for point source wastewater discharges and stormwater discharges, encourages information sharing on permitting practices and the developing a permitting compendium. On the same day, the EPA also released information on its progress in “developing new analytical methods” to test for 40 new PFAS compounds in “wastewater and other environmental media.”
  • On December 22, 2020, the EPA published a notice of availability for public comment on its Interim PFAS Destruction and Disposal Guidance. The guidance provides information on those technologies that “may be feasible and appropriate for the destruction or disposal of PFAS and PFAS-containing materials” and identifies further needed and ongoing research and development.
  • The EPA issued a proposed rule to address PFAS in the list of unregulated contaminants under the Safe Drinking Water Act’s Unregulated Contaminant Monitoring Rule on January 14, 2021. The proposed rule would require public water systems to collect occurrence data for 29 PFAS substances and “all community and non-transient non community water systems” serving 3,000 people or more (as well as a representative sample of smaller water systems) to conduct monitoring.
  • Also on January 14, 2021, the EPA issued the pre-publication version of an advance notice of proposed rulemaking seeking comment on developing future regulations pertaining to two specific PFAS compounds — namely PFOA and PFOS — under CERCLA and RCRA. According to the EPA, PFOA and PFOS are the two PFAS compounds that have been produced in the largest amounts in the U.S.3 Essentially, the EPA seeks comment on whether it should designate PFOA and PFOS as “hazardous substances” under CERCLA and “hazardous wastes” under RCRA. As of June 11, 2020, EPA had 233 private and federal facility National Priorities List (“NPL”) sites with confirmed PFAS detections in ground water. Sampling results exceeded EPA’s health advisories of 70 parts per trillion (“ppt”) for PFOA, and PFOS at 47 sites (15 private sites and 32 Federal Facility sites).4 Yet, despite this, the last administration also raised considerations of why using CERCLA and RCRA may not be desirable:

[I]n light of EPA’s success and experience in addressing PFAS in drinking water at levels above EPA’s current health advisory, EPA is reconsidering whether it should take any additional regulatory steps such as proposing to designate PFOA and PFOS as hazardous substances and, if so, what additional or alternate regulatory steps or authorities would be best suited and could be most appropriately tailored to address PFAS contamination in the environment. This notice seeks comment on the potential need for other regulatory steps and the benefits and the costs associated with such steps.5

The Biden Administration

During his election campaign, President Biden pledged to address PFAS in a number of ways and it is likely that 2021 will continue to see regulatory activity. Even without the change in administration, PFAS is an issue of widespread public concern, crossing the aisle and bipartisan support for action has grown in recent years. As we discussed previously, President Biden’s pick to lead the EPA — Michael Regan — has a reputation for his knowledge and experience on PFAS, and we expect him to play an active role as the federal government decides how to address these forever chemicals. It is also clear that the efforts to address PFAS will be shared with other Biden administration leaders. For example, PFAS and its regulation could have major implications for the Department of Defense, which has historically conducted training activities with firefighting foams containing PFAS. During his confirmation process, members of the Senate Armed Services Committee questioned Lloyd Austin, President Biden’s confirmed Secretary of Defense, on improvements to life on and near to military bases, including PFAS contamination cleanup. Austin confirmed that he would make PFAS remediation a priority and ensure that concrete steps would be taken to “finally do right by these communities.”

In addition, calls have already been made for the Biden administration to address the previous administration’s proposals. For example, because the EPA’s advance notice of proposed rulemaking seeking comment on whether the PFAS compounds PFOA and PFOS should be regulated under CERCLA and RCRA (see above) has not yet been published in the Federal Register, and will not be for some time yet, suggestions have been made to withdraw that notice and immediately restore the EPA’s original internal draft proposal which proposed to list the PFAS chemicals as “hazardous substances” under CERCLA.

Between the campaign promises, newly Democratic Congress, the prior experience of those likely to lead key federal agencies and overall public concern across bipartisan lines, we expect the coming year to exhibit continued action to address PFAS chemicals, either through new or existing environmental laws.

Takeaways

There will be continued focus on regulating PFAS under environmental laws in the new administration. One place to pay particular attention to is what the EPA decides to do regarding whether to list some PFAS chemicals as “hazardous substances” under CERCLA and RCRA. The EPA’s recent public notice on this issue indicates that there are multiple industries potentially affected if EPA proposes and finalizes a rule to designate PFOA and PFOS, including their salts and structural isomers, as CERCLA hazardous substances: PFOA and PFOS manufacturers and processors, manufacturers of products containing PFOA and PFOS, downstream product manufacturers and users of PFOA and PFOS products, waste management and wastewater facilities and anybody currently conducting a CERCLA clean-up where PFOA and PFOS may be found. In addition, public water systems will want to keep an eye on potential regulation of PFAS chemicals under the SDWA.

1 See EPA, Per- and Polyfluoroalkyl Substances (PFAS) Action Plan at 12 (Feb. 2019).

2 Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List, Regulations.Gov, https://beta.regulations.gov/docket/EPA-HQ-OW-2019-0583.

3 EPA, Technical Fact Sheet–Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) (Nov. 2017), available at https://www.epa.gov/sites/production/files/2017-12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf.

4 EPA, Addressing PFOA and PFOS in the Environment: Potential Future Regulation Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act at 5 (Jan. 14, 2021), https://www.epa.gov/sites/production/files/2021-01/documents/frl-10019-13-olem_addressing_pfoa_pfos_anprm_20210113_admin-508.pdf.

5 EPA, Addressing PFOA and PFOS in the Environment: Potential Future Regulation Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act at 6 (Jan. 14, 2021).

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