EPA Announces Roadmap for PFAS Regulation with Nationwide Implications

On Monday, EPA announced a “PFAS Strategic Roadmap” for regulating so-called “forever chemicals” from cradle to grave. The Roadmap is a plan to “research, restrict, and remediate” certain synthetic chemicals that are ubiquitous in the environment and the bloodstream of nearly all Americans. To implement the Roadmap, EPA will initiate new studies to evaluate PFAS exposures and toxicity; develop enforceable drinking water standards for certain PFAS; designate two PFAS (PFOA and PFOS) as hazardous under CERCLA; and, among other things, establish permitting requirements under the Clean Water Act for PFAS in wastewater and stormwater discharges.[i]

PFAS, already regulated under many state laws, is not yet regulated at the federal level. Federal regulations would impact a wide variety of industrial sectors and sweep into their ambit, for example: water utilities; wastewater treatment plants; ranchers and farmers; subsistence fishers; pulp and paper mills; and manufacturers of outdoor clothing, cookware, cosmetics, and other household and personal goods.

This is the first in a series on the Roadmap and its implementation. Marten will explore the specific implications of the policies and regulations previewed in the Roadmap in future editions of this newsletter.

What are PFAS?

PFAS, or per- and polyfluoroalkyl substances, are a group of man-made chemicals that do not break down in the environment. The most widely known PFAS are perfluorooctanoic acid (PFOA) and perfluorooctane sulfate (PFOS). PFAS are found in items from food packaging and commercial household products to drinking water and living organisms. The two most well-characterized sources of PFAS contamination are manufacturing plants and releases of aqueous film-forming foam (AFFF), used to suppress fuel fires. Current studies indicate that exposed populations show increased levels of cholesterol and obesity, low infant birth weights, reproductive effects, thyroid hormone disruption, effects on the immune system, and cancer.[ii]

Biden Administration’s Proposed Strategy to Regulate PFAS

EPA centers its Roadmap on three guiding statements of intent: “increase investments in research, leverage authorities to take action now to restrict PFAS chemicals from being released into the environment, and accelerate the cleanup of PFAS contamination.”[iii] The objectives set forth in the Roadmap anticipate a three-year regulatory and implementation timeframe. The actions EPA has announced it intends to take under each authorizing statute are summarized as follows:

Safe Drinking Water Act (SDWA)

• Establish an enforceable drinking water standard (maximum contaminant level or MCL) under the SDWA for PFOA and PFOS by 2023. EPA expects to propose a rule in Fall 2022 and finalize it in Fall 2023. This proposed timeline would meet the statutory mandate under the proposed PFAS Action Act, H.R. 2467.[iv]
• Publish health advisories, similar to the existing 70 ppt advisory for PFOA and PFOS, for GenX (a specific short-chain PFAS compound) and five other PFAS (PFBA, PFHxA, PFHxS, PFNA, and PFDA). These non-enforceable drinking water advisories are expected Spring of 2022 and will be based on final toxicity assessments of PFBS and GenX released in Fall 2021.[v]
• Expand public water system testing. Under the Fifth Unregulated Contaminant Monitoring Rule (UCMR), water systems serving 3,300 or more people, and 800 representative public water systems serving fewer than 3,300, will test for 29 PFAS in drinking water for a 12-month duration from January 2023 through December 2025. This testing is designed to compile a sufficient raw data set for EPA to conduct site-specific assessments of contamination, including disproportionate impacts on certain groups, and generally better understand PFAS impacts in public water systems. EPA is currently considering public comments on the proposed UCMR 5[vi] and expects to issue a final rule by Fall 2021.[vii]

Clean Water Act (CWA)

• Restrict PFAS discharges from industrial sources through EPA’s Effluent Limitations Guidelines (ELGs) Program significantly by the end of 2024. Through ELGs, EPA will impose technology-based limits on PFAS in wastewater discharge into surface waters and by municipal sewage treatment facilities. EPA has established timelines for nine industrial categories, projecting complete PFAS phaseout in the pulp, paper, and airport industries by 2024.[viii]
• Leverage federal and state NPDES permitting to reduce PFAS discharges to waterways by Winter of 2022. EPA will propose monitoring requirements for 40 PFAS under new and existing NPDES permits where PFAS are expected to be present in wastewater and stormwater discharges. EPA will issue new guidance recommending that state-issued permits also require monitoring for the same 40 PFAS.[ix] Further, EPA will develop ambient water quality criteria for PFAS: criteria for aquatic life are expected in Winter 2022 and human health criteria in Fall 2024.
• Regulate PFOA and PFOS in biosolids. This action would be based on a risk assessment to be completed by Winter 2024. Any resulting rules would govern solid waste permitting and standards at wastewater treatment facilities.[x]

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

• Designate PFOA and PFOS as hazardous by Summer 2023. EPA expects to release a proposed rule by Spring 2022 and establish a final rule by Summer 2023. The agency is also considering designating additional PFAS, including PFAS precursors, as hazardous under CERCLA. It expects to seek public input on the issue in Spring 2022.[xi]

Toxic Substances Control Act (TSCA)

• Publish a national PFAS testing strategy as soon as Fall 2021. EPA will use its TSCA Section 4 authority to require PFAS manufacturers to fund and conduct studies on PFAS for which there is limited or no toxicity data. EPA will evaluate 20 newly identified PFAS categories to prioritize certain types of PFAS for the first round of test orders, which will be issued by the end of 2021.[xii]
• Identify PFAS categories to accelerate public health protection and facilitate better remediation and treatment strategies. EPA will categorize PFAS by developing categories: 1) for further hazard assessment using toxicity and toxicokinetic data and 2) based on removal technologies using existing understanding of treatment, remediation, destruction, disposal, control, and mitigation principles. Additionally, EPA plans to develop a PFAS database listing key characteristics of individual PFAS and category assignments.[xiii]
• Rigorously review PFAS chemicals to ensure compliance with updated health and safety requirements. EPA will no longer allow low volume exemptions for new PFAS to enter the market without rigorous health and safety review. EPA will also apply a premanufacture notice review process to all new PFAS.[xiv]
• Review previous PFAS approvals and close loopholes for abandoned uses. EPA will also review PFAS it previously approved, including those it reviewed before the 2016 TSCA amendments, and will issue TSCA Section 5(e) orders for PFAS approved under a significant new use notice. The orders will require compliance with certain safety measures as a condition for allowing the significant new use to continue. EPA will also classify inactive PFAS or potentially all uses associated with an inactive PFAS under a significant new use rule (SNUR) as early as Summer 2022, requiring anyone attempting to use inactive PFAS to comply with updated health and safety determinations.[xv]
• Enhance PFAS reporting under the Toxics Release Inventory (TRI) by Spring 2022. EPA will propose a rulemaking in 2022 to categorize PFAS on the TRI as “Chemicals of Special Concern” and to remove de minimis eligibility from supplier notification requirements for all chemicals of special concern. EPA will also announce another rulemaking adding more PFAS to the TRI in 2022, as required by the 2020 NDAA.[xvi]

Clean Air Act (CAA)

• Decide whether to list certain PFAS as hazardous air pollutants under the Clean Air Act and evaluate potential mitigation technologies by Fall 2022. EPA will base its decision on monitoring stack emissions and ambient PFAS concentrations and seek to increase its understanding of PFAS transport and exposure pathways.[xvii]

Proposed Environmental Justice-Based Evaluation

• EPA plans to investigate how PFAS contribute to the cumulative pollution burden on communities disproportionately impacted by environmental issues. For example, under SDWA UCMR 5 it will expand the number of participating drinking water systems, seeking to improve the agency’s ability to identify differential impacts to various communities. EPA intends to employ data mapping tools like EJSCREEN to determine which communities are disproportionately affected by PFAS air pollution and will meet with communities affected by PFAS in each EPA region, as recommended by the National Environmental Justice Advisory Council.

Congressional Action on PFAS

EPA’s action comes amidst a comparative lull in Congressional movement on PFAS. In July 2021, the U.S. House of Representatives passed the PFAS Action Act, H.R. 2467, directing EPA to regulate PFAS under CERCLA and the CWA, but the Senate has not voted on the bill. The House’s version of the fiscal 2022 National Defense Authorization Act includes PFAS provisions that, if passed by the Senate, would require EPA to publish drinking water standards for PFOA and PFOS within two years; eliminate the de minimis exception to the Toxics Release Inventory reporting requirements; and regulate PFAS manufacturing facilities more strictly.[xviii] On October 6, 2021, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment held a hearing examining PFAS, focusing on surface water, effects on human and aquatic ecosystems, and the CWA’s framework for addressing surface contaminants.[xix] On Wednesday, October 20, 2021, EPA water chief Radhika Fox faced questions from the Senate Environment and Public Works Committee regarding the agency’s approach to PFAS.[xx] Absent a substantial acceleration of action in Congress, however, EPA’s planned activities under existing regulatory authorities, as articulated in its Roadmap, will likely result in more substantive action on a faster timeline.

Conclusion

The Biden Administration EPA’s intent is to expand the scope of PFAS testing, monitoring, permitting, and enforcement, and to use existing mechanisms in the meantime to protect the country’s land, air, and water from man-made substances that have become ubiquitous in modern society. The Agency has stated that it considers PFAS a top regulatory priority and that it plans to root that regulation in evidence-backed research to ensure the appropriate chemicals are addressed, and at risk assessment-based levels.

Given the breadth of anticipated differential impacts under the PFAS Roadmap, Marten will publish additional newsletter installments focused on what implementing the Roadmap may mean for:

1. Existing litigation and potential new lawsuits, as well as existing Superfund sites and potential new listings. Our analysis will address the potential to re-open Consent Decrees and other administrative settlements governing “closed” sites, environmental site assessment expansions for real estate transactions, a potentially expanded role for citizen suits under the CWA and Clean Air Act, and a potentially broader net of liability under CERCLA and other statutes for entities and individuals deemed liable for PFAS contamination. New regulations could affect, for example, claims in the AFFF multi-district litigation (MDL) in the U.S. District Court for the District of South Carolina, which involves over 1,000 cases concerning claims against the U.S. Department of Defense and PFAS and AFFF manufacturers.
2. Substantial air and water permit changes mandated by forthcoming enforceable standards, enforced by both EPA and states under delegated authority, and how the EPA chooses to regulate PFAS (i.e., individually, by class, or subgroup) will affect applicable levels. Our analysis will discuss how these permit changes, along with the expanded UCMR rule and enforcement of drinking water standards, will affect low-income communities and communities of color disproportionately facing health and safety issues from PFAS and attendant contaminants.
    
3. Increased reporting requirements of PFAS uses and releases, and stricter restrictions on new and ongoing uses of certain PFAS that will affect a wide range of upstream manufacturers and downstream users and manufacturers. Our analysis will consider how contemporary congressional action will interact with these agency requirements.
    

For more information about PFAS and the EPA’s PFAS Roadmap, please contact Marten’s PFAS Team members: Jeff Kray, Jessica Ferrell, Martha Geyer, or Sara Cloon.