In Fall 2021, Trihydro overviewed key per- and polyfluoroalkyl substances (PFAS) actions expected from the United States Environmental Protection Agency (EPA) as it progressed with its PFAS Action Plan and PFAS Strategic Roadmap. Since then, EPA has made several regulatory advancements regarding PFAS, including developments related to reporting obligations, hazardous substance/air pollutant designation, testing/sampling requests, and restrictions in using PFAS in commerce.
This article provides an update on federal regulatory movements regarding PFAS, summarizing developments by regulation.
Toxics Release Inventory
On January 24, 2022, EPA announced the addition of four PFAS compounds to the list of chemicals covered by the Toxics Release Inventory (TRI), bringing the number of PFAS compounds subject to TRI reporting to 179.
EPA added the following four new PFAS to TRI. For this article, we have abbreviated the PFAS names (one of the PFAS added to TRI is 400 characters long!), using their simplified names or functional category paired with the straightforward numerical convention from the Chemical Abstract Service (CAS).
- PFBS (CAS 375-73-5)
- PFBS-K (CAS 29420-49-3)
- Methylpropenoate polymer (CAS 65104-45-2)
- Methylacrylate polymer (CAS 203743-03-7)
Facilities that manufacture, import, process, or use PFAS chemicals listed on the TRI over a threshold quantity of 100 pounds per year should have suitable tracking and recordkeeping systems. Facilities subject to TRI reporting are required to track activities for listed chemicals as of January 1, 2022; reporting forms for the 2022 calendar year will be due July 1, 2023. The previous de minimis level for PFOA (CAS 335-67-1) has remained unchanged at 0.1%. All other PFAS have a de minimis level of 1%.
While the most recent update to TRI only added four PFAS chemicals, the EPA has indicated plans for ongoing additions and more stringent reporting requirements (e.g., removing de minimis exemptions). Thus, facilities subject to TRI reporting should remain vigilant in tracking updates.
Comprehensive Environmental Response, Compensation, and Liability Act + Resource Conservation and Recovery Act
On January 10, 2022, EPA submitted a proposal to the White House Office of Management and Budget (OMB) that would designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The OMB has 90 days to review the proposal and EPA has indicated it expects a final rule near the end of 2023.
If PFOA/PFOS receive a hazardous substance designation under CERCLA, sites with impacts from these chemicals will be required to investigate and/or remediate the site in compliance with CERCLA requirements. Given the widespread existence of PFOA/PFOS, a hazardous substance designation could create a large influx of CERCLA sites across numerous industries and could reexamine Records of Decision (RODs) or even re-open certain closed sites that have received a No Further Action (NFA) letter.
A CERCLA hazardous substance designation will affect waste management and disposal of PFOA/PFOS (for example, by liming disposal locations for PFAS-impacted materials). EPA has already undertaken efforts to examine four PFAS compounds as potential candidates for the corrective action process under the Resource Conservation and Recovery Act (RCRA).
Safe Drinking Water Act
Under the Safe Water Drinking Act (SDWA), EPA has the authority to set enforceable National Primary Drinking Water Regulations (NPDWR) for drinking water and can require monitoring of public water supplies.
On the NPDWR front, EPA’s Science Advisory Board (SAB) on PFAS recently reported progress on preliminary Maximum Contaminant Level Goals (MCLGs) for PFOA/PFOS. While the SAB has more work to do and has yet to consider public comments, the preliminary MCLGs for PFOA/PFOS based on the proposed toxicity reference doses would fall into the parts per quadrillion range. Because current analytical methods cannot reach this level of sensitivity, it would prove difficult to monitor to this standard. The proposed PFOA/PFOS MCLGs are expected by Fall 2022.
In concert with regulations for PFOA/PFOS, EPA is working on health advisories (HAs) for additional PFAS (PFBS [CAS 375-73-5] and HFPO-DA [CAS 13252-13-6]). The additions will expand the current number of PFAS with HAs from two (PFOA and PFOS) to four. The HAs are used as interim screening levels for PFAS in water. Although HA values are non-enforceable, they provide some incentive for site managers to collect and evaluate site data for these compounds. By comparison, data evaluation remains dubious for the large number of PFAS compounds requested by state orders that lack standards for comparison.
Regarding the monitoring of public drinking water supplies, EPA published a final rule requiring public water systems serving 3,300 or more people to collect national occurrence data for 29 PFAS chemicals under the Unregulated Contaminant Monitoring Rule (UCMR). Sampling is to commence in January 2023. Sampling results will not only inform EPA, health agencies, and consumers as to the level of communities’ exposure to PFAS in drinking water, but also prepare Public Water Systems (PWSs) for a possible need to treat the water for PFAS.
Clean Water Act
The Clean Water Act’s (CWA) Preliminary Effluent Guidelines Program Plan announced rulemaking for revising limitations for manufacturers of Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) and chromium platers to address receiving waters discharges of PFAS. Under the CWA, the National Pollutant Discharge Elimination System (NPDES) effluent limitations serve as the primary mechanism for controlling discharges of pollutants to receiving waters through permitting. Some effluent permits have begun to be written to include PFAS and it is expected the practice will continue. EPA also plans to release the National Water Quality Criteria (NWQC) for aquatic life sometime in 2022. The NWQC will cause PFAS to be included in permits and considered in ecological risk assessments for aquatic receptors.
Clean Air Act
On October 19, 2021, the Prevent Release of Toxics Emissions, Contamination, and Transfer (PROTECT) Act of 2021 was introduced in Senate. PFAS air emissions are not currently regulated, and the PROTECT Act proposes to list the following PFAS as hazardous air pollutants under the Clean Air Act (CAA):
- PFOA (CAS 335-67-1)
- PFOS (CAS 1763-23-1)
- PFBA (CAS 375-73-5)
- HFPO-DA (CAS 13252-13-6)
If the bill is enacted, it would lead to revisions to the list of categories and subcategories of major sources and area sources. The PROTECT Act would also establish emissions standards for the PFAS included on the list of hazardous substances, leading to a higher regulatory burden.
Toxic Substances Control Act
While major PFAS-related news related to the Toxic Substances Control Act (TSCA) is not expected until late 2022 (i.e., the requirement for Chemical Data Reporting [CDR] retroactive to 2011), industry is beginning to see EPA invoke TSCA Section 4 data/test orders for PFAS.
On December 28, 2021, EPA granted a petition to compel companies to test for certain PFAS. Under TSCA Section 4 authority, EPA can require that recipients of test orders not only conduct toxicity studies, but also fund them. As progress on items outlined in EPA’s PFAS Strategic Roadmap continues to unfold, it is anticipated that companies will increasingly receive test orders under TSCA Section 4. Also under the purview of TSCA, EPA is limiting compliance exemptions and is adopting more stringent chemical reviews/risk assessments concerning the manufacturing, importation, and use of certain PFAS chemicals.
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