Federal Regulatory Update

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Over the past year, the United States Environmental Protection Agency (EPA) has announced several significant developments regarding per- and polyfluoroalkyl substances (PFAS). Most recently, the EPA published a Notice of Proposed Rulemaking on September 6, 2022. This notice designated perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the Federal Register. The public comment period is open until November 7, 2022, with promulgation of the final rule expected in August 2023.

In addition to the EPA’s Notice of Proposed Rulemaking in September, other significant developments announced by the agency in the past year include:

• July 2022: Updates to the Toxic Release Inventory to add four PFAS compounds, expanding the list to over 170 PFAS compounds that must comply with the program’s reporting obligations regarding use, discharge, and waste disposal.

• June 2022: Revisions to the Drinking Water Health Advisory Limits (HALs), reducing the limits for PFOA and PFOS from 70 parts per trillion to 4 and 20 parts per quadrillion, respectively. Though these standards are not enforceable, the HALs are lower than what current laboratory methods can detect. The EPA also issued new HALs for perfluorobutane sulfonic acid (PFBS) and hexafluoropropylene oxide dimer acid (GenX).

• April 2022: Memorandum issued to proactively use its Clean Water Act permitting authorities to monitor and minimize PFAS in EPA-issued discharge permits under the National Pollutant Discharge Elimination System (NPDES).

• October 2021: Announcement of two rulemaking initiatives under the Resource Conservation and Recovery Act (RCRA)—one to start listing PFOA, PFOS, PFBS, and GenX as RCRA Hazardous Constituents, the second to clarify that the EPA has the authority to require investigation and cleanup of emerging contaminants under the RCRA Corrective Action Program.

The direct and indirect effects of each federal action will be substantial. For one, designation of PFAS as hazardous substances allows the EPA to respond to actual or threatened PFAS releases and recover costs related to the investigation and cleanup. These updates will also impact facilities with federal permits, such as Treatment, Storage, and Disposal Facilities or facilities with NPDES stormwater or wastewater discharge permits; project costs and schedules related to PFAS waste disposal; and the definition of PFOA and PFOS under the American Society for Testing and Materials’ standard for Phase I Environmental Site Assessments.

While there has been plenty of movement on the federal level recently, the formal rulemaking process is a lengthy one. Several actions have not had a status update since the initial announcement and, in the absence of federal standards, many states have promulgated their own drinking water and/or remedial standards or framework. Langan has stayed abreast of the multitude of state and federal regulatory actions since this process started, gaining extensive experience by working with clients and attorneys to develop practical solutions and provide advice on various project phases.

These federal initiatives are only the beginning when it comes to regulating this class of compounds. Yet one element remains the same: engaging a knowledgeable consultant and attorney is vital to successfully navigating PFAS-related project challenges.