Member Article

October 19, 2021

By: John Epperson

EPA released its plan for actions to address PFAS contamination on October 18, 2021. This is an aggressive and wide-sweeping plan that reaches across multiple statutory authorities. Much of the Roadmap will require regulatory rulemaking to implement, providing the regulated community an opportunity to get involved and shape the final rules. Some of the elements of EPA’s plan have been known previously but the Roadmap reveals the full scope of this ambitious effort, including research and applying existing regulatory programs for chemicals (TRI, RCRA, NPDES, CERCLA, etc.).

PFAS (per- and poly-flouroalkyl substances) are a large family of compounds used in a wide range of products, ranging from non-stick cookware to water repellant clothing to fire-fighting foam. Unfortunately, some of the properties that make PFAS useful in products also inhibit their breakdown in the environment, giving them the label “forever chemicals.” Because PFAS were not known to be harmful, their use became widespread with little regulatory review. Recent studies have identified that exposure to some PFAS chemicals at sufficient levels can have health impacts but which PFAS are harmful and at what levels is not well understood. EPA now faces the tricky balance of simultaneously filling in extensive knowledge gaps on environmental risk while imposing regulatory controls that should be based on that knowledge.

The research elements of the Roadmap include building up understanding of PFAS toxicity and collecting data on use of PFAS and extent to which they are present in drinking water and the environment. PFAS analytical methods will be validated and updated and a nationwide effort to monitor public water systems using validated analytical methods will be undertaken. On-going toxicity and risk assessments, including a risk assessment of acceptable levels of certain PFAS in biosolids to be spread on agricultural fields, will be finalized and new ones undertaken.

EPA will bring their existing regulatory programs to bear on PFAS. Some industry sectors already had to report certain PFAS releases under the Toxic Release Inventory (TRI). This will be expanded, including removal of the de minimis eligibility threshold from supplier notification requirements for PFAS. EPA previously proposed a rule under TSCA Section 8 requiring manufacturers to report information regarding use and disposal of PFAS since 2011 and committed to issuing a final rule before January 1, 2023.

Powerful regulatory tools such as NPDES permitting of discharges of wastewater will be applied to PFAS, both through federally-issued NPDES permits and guidance to states permitting authorities.  New Effluent Limitations Guidelines, national regulatory limits on pollutants in wastewater discharges, will be established for PFAS. A National Primary Drinking Water Regulation for certain PFAS will be enacted, requiring water providers to monitor for those compounds. PFAS will also be evaluated for potential classification as Hazardous Air Pollutants for regulation under the Clean Air Act.

As to remediation of existing PFAS in the environment, CERCLA will be amended to designate certain PFAS as hazardous substances, enhancing the ability to recover response costs from responsible parties by public agencies or other responsible parties. EPA has already issued draft guidance on methods for destroying and disposing of certain PFAS-containing materials and that guidance will be finalized and updated regularly.

This is a brief summary of an ambitious regulatory program that has many components and may impact businesses that do not currently believe they have PFAS issues. Because this Roadmap involves changes to multiple separate regulatory programs, stakeholders will need to monitor multiple rulemaking proceedings if they want to fully understand the potential impacts to their operations and provide comments.  Alternatively, they may want to identify specific rules that warrant special attention and only monitor those proceedings. EPA’s webpage regarding the Roadmap, including a link to a copy, here:

Buchalter has experienced attorneys who have assisted employers on environmental, health and safety matters, including responses to issues raised by COVID-19.  If you have questions or need assistance, please contact one of the attorneys listed below.

John Epperson

Peter McGaw

Claudia Powers

John Schultz

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