Federal efforts to regulate per- and polyfluoroalkyl substances (PFAS) have continued in recent months. Most notably, on October 21, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) released its PFAS Strategic Roadmap. This document promises to establish a comprehensive, whole-of-agency approach to regulating PFAS, by building off the Trump EPA’s 2019 PFAS Action Plan and related federal initiatives. The Roadmap reflects EPA’s intent to regulate a broader range of activities than those contemplated in the 2019 Action Plan, as well as to accelerate the implementation of activities identified in the earlier Agency document.
The Roadmap’s regulatory agenda establishes milestones over the next three years for an array of PFAS-related actions:
The following discussion briefly summarizes the most notable proposed activities to be performed under key environmental statutes.
Toxic Substances Control Act (TSCA)
Review of PFAS Uses: Starting in 2022, EPA will review the protectiveness of restrictions already in effect regarding the 669 PFAS currently listed as active on the TSCA Inventory. If, after review, EPA determines that a particular PFAS activity presents an unreasonable risk, the Agency will designate that activity as a Significant New Use. Thereupon, any business that wishes to engage in the activity must submit a Significant New Use Notification (SNUN) to receive authorization from EPA.
This initiative could result in considerable business disruptions. Not only is the preparation and submission of an SNUN a potentially time-consuming process, but EPA approval may be predicated on restrictions and other requirements, such as the generation of additional testing data, to be included in a 5(e) order, issued to SNUN submitters, or Significant New Use Rules of general applicability.
TSCA PFAS Reporting: By January 1, 2023, EPA must finalize a rule under TSCA Section 8(a)(7) that would require manufacturers and importers besides those that are “small business,” to electronically report information on PFAS uses, production volumes, disposal methods, exposures, and hazards. Such information may provide a basis not only for further restrictions on PFAS activities but also for investigations and enforcement actions. Although small businesses will be exempt from such reporting, they must retain records of PFAS-related activities, which would have to be shared with EPA in the event the Agency invokes its investigative authorities under TSCA Section 11.
Emergency Planning and Community Right-to-Know Act (EPCRA)
Expanding PFAS Reporting Under the Toxic Release Inventory (TRI) Reporting: This was the first year in which facilities subject to EPCRA Section 313 had to file Form R reports for PFAS, an obligation that arose under regulations promulgated to implement provisions of the 2020 National Defense Authorization Act. These regulations identified 172 PFAS as subject to TRI reporting, though they also created an exemption for companies that manufacture, process, or otherwise use de minimis amounts of the listed PFAS. Notably, the Roadmap proposes to eliminate this exemption and add new PFAS to the TRI in 2022.
As Pillsbury has previously noted, TRI reports are publicly available. Accordingly, they provide a means by which governmental authorities and potential plaintiffs may identify businesses that might have contributed to PFAS contamination. Therefore, aside from increasing the regulatory burden on subject businesses, the proposed regulatory amendments stand to increase the risks to such companies of PFAS-related enforcement actions and lawsuits.
Safe Drinking Water Act (SDWA)
Sampling for Additional PFAS: By the end of this year, EPA will a rule to expand its nationwide monitoring program under its fifth Uncontaminated Monitoring Rule (UMR) to require monitoring for 29 new PFAS. Currently, only six PFAS are monitored under this program (PFOA, PFOS, PFNA, PFHxA, PFHpA, and PFBS). Once this update is made, all public water systems serving 3,300 or more people, as well as several hundred systems with a smaller capacity, must perform monthly sampling for the 29 additional PFAS.
This proposed action has a twofold significance. First, it serves as a possible first step toward establishing enforceable regulatory criteria for the pertinent PFAS in the way of Maximum Concentration Limits, with which owners and operators of SDWA-regulated public water systems would have to comply. Second, the data that the program stands to obtain on PFAS impacts to public water systems could potentially trigger a fresh wave of lawsuits or additional claims in pending PFAS litigation. In this connection, it bears emphasis that the current wave of PFAS litigation was set off, in part, by data collected pursuant to a UMR, beginning in 2013.
Maximum Contaminant Levels (MCLs) for PFOA and PFOS: The Roadmap establishes deadlines for EPA’s long-announced plan to set MCLs for PFOA and PFOS. The proposed rule is expected in Fall 2022, with a final rule to follow in Fall 2023. As indicated above, the exceedance of an MCL would serve as grounds for SDWA enforcement against owners and operators of regulated public water systems. Furthermore, it would advance EPA’s objectives of developing remedial guidelines for these two PFAS, as MCLs often serve as de facto remediation goals in the absence of more directly applicable targets.
It is therefore significant that preliminary indications are that the MCLs for PFOA and PFOS may be more stringent than the already low 70 ppt advisory level that EPA has recommended since 2016. The move toward greater stringency is noteworthy given that the advisory level is already orders of magnitude lower than the concentrations at which EPA regulates other deleterious pollutants (i.e., usually at the level of parts per million or parts per billion).
Clean Water Act
Leverage Discharge Permits to Reduce PFAS Discharges: By winter 2022, EPA will develop Effluent Limitations Guidelines (ELGs) to impose technology-based limits for certain, yet-unspecified PFAS in permits issued under the National Pollutant Discharge Elimination System program. In so doing, EPA will focus on the following industries and activities: specialty chemical companies, landfills, biosolids, plastics, metal finishing and electroplating, electrical, textile mills, airports, leather tanning and finishing businesses, paint, and pulp and paper mills.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
“Hazardous Substance” Designation: The Roadmap establishes deadlines for EPA’s long-awaited designation of PFOA and PFOS as “hazardous substances” under CERCLA. Specifically, the Roadmap provides that, no later than Spring 2022, EPA will issue an advance notice of proposed rulemaking on this subject, with a final rule expected in Summer 2023.
Aside from subjecting PFOA and PFOS to the release reporting requirements of this statute, this proposed action stands to subject “responsible parties” at properties contaminated with these two chemicals to the full suite of cost recovery mechanisms available under CERCLA. The designation of PFOA and PFOS as “hazardous substances” may also have ramifications for entities that have already entered into settlement agreements regarding CERCLA liabilities, as such agreements typically include reopeners for previously unidentified hazardous substances.
Clean Air Act (CAA)
Regulating PFAS Air Emissions: EPA’s Roadmap calls for the development of a technical foundation for regulating PFAS emissions into the ambient air. Specifically, by Fall 2022, EPA must identify the main sources of PFAS emissions, develop cost-effective mitigation technologies, and significantly advance fate and transport modeling for air emissions of PFAS. As part of this initiative, EPA also will work to determine the environmental justice impacts of PFAS. One mitigation option that the Roadmap suggests is the designation of certain PFAS as Hazardous Air Pollutants, a move that would result in emission limits for PFAS being written into air permits and addressed in state implementation plans.
Although the timetables included in agency action plans are often aspirational, the key point is that the Biden administration seems committed to following through on its earlier commitments to regulate PFAS. The PFAS Roadmap carries forward the previous administration’s PFAS plans, and both broadens their scope and establishes an aggressive timeline for regulatory action. If largely implemented, the PFAS Roadmap will introduce sweeping regulations and create liabilities for active PFAS users and manufacturers, and for companies that have legacy liabilities related to PFAS. Moreover, as stated above, several proposed actions stand to facilitate lawsuits by private party plaintiffs.
Given the heightened regulatory and litigation risks, businesses should consider proactive approaches to ascertaining their nexuses to PFAS, as well as measures that they may take to mitigate their liability exposure. For businesses that actively deal with these tenacious chemicals, such approaches may entail analyzing supply chains and product distributions, as well as, perhaps, working to find substitute formulations for products containing PFAS.
In the same vein, entities engaged in environmental remediation projects or otherwise managing legacy liabilities may find it worth their while to review the environmental setting and operational history of a given contaminated site to assess the likelihood of having to conduct PFAS cleanups, which, given the chemicals’ physical and chemical properties, can be time-consuming and costly. Finally, regulated entities may wish to consider participating in rulemaking processes by taking advantage of public comment periods.
Pillsbury environmental attorneys have extensive experience dealing with PFAS, including assisting companies respond to governmental information requests and subpoenas, developing PFAS-specific sampling plans, and helping companies obtain regulatory approvals for PFAS.