In 2022, US EPA indicated that it would take a more aggressive stance on per- and polyfluoroalkyl substances (PFAS). US EPA developed a PFAS Strategic Roadmap for 2021-2024 that sets timelines by which US EPA plans to take specific actions and sets out its three main directives: 1) research PFAS exposure; 2) restrict PFAS from entering the environment; and 3) remediate PFAS releases. US EPA has taken several actions to follow its roadmap, including the following:
- We previously discussed US EPA’s publication of final drinking water health advisories for PFBS, GenX, perfluorooctanoic acid (PFOA), and perfluorooctane sulfonic acid (PFOS) in June. PFOA and PFOS are specific groups of PFAS for which US EPA lowered the level at which these chemicals are allowed in drinking water, reduced from 2016 levels.
- In September 2022, US EPA published a proposed rule to designate two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or “Superfund.” The comment period ended on November 7, 2022. The Agency has not yet issued a final rule.
- In November 2022, US EPA published the Fifth Contaminant Candidate List, which is a list of contaminants not currently subject to any national primary drinking water regulations but which may require regulation in the future under the Safe Drinking Water Act because they are known or expected to be found in public water systems. The list includes the chemical group for PFAS as opposed to listing the PFAS individually with an expanded definition of what qualifies as PFAS.
- For reporting year 2023 (reporting forms due by July 1, 2024), the National Defense Authorization Act automatically added nine additional PFAS to the Toxics Release Inventory (TRI) list. This means TRI-reporting facilities should track and collect data on these chemicals for the year 2023.
Looking forward, US EPA has published for public comment its National Enforcement and Compliance Initiatives (NECIs) for Fiscal Years 2024-2027, which are areas of compliance and enforcement for which the Agency intends to commit significant resources. One of its proposed NECIs for FY 2024-2027 is addressing PFAS contamination. Public comments on this proposal are due by March 13, 2023.
In addition, on January 26, 2023, US EPA published a proposed significant new use rule (SNUR), which would prevent the significant new use of PFAS chemicals listed as “inactive” under the Toxic Substances Control Act without US EPA review. Inactive PFAS are those that have not been actively manufactured (or imported) or processed in the US since June 21, 2006. Those subject to the SNUR would be required to notify US EPA at least 90 days before commencing any manufacturing (including importing) or processing of the chemical substance for a significant new use. US EPA is accepting comment on the proposed SNUR until March 27, 2023.
US EPA’s actions in 2022 and early 2023 indicate that the Agency is prioritizing regulation of PFAS. Squire Patton Boggs will continue to monitor PFAS regulatory actions and provide updates.