April 2022 - USEPA’s PFAS Strategic Roadmap Points the Way to Future PFAS Regulation

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Introduction

Containers of aqueous film-forming foam (AFFF) concentrate being stored before use. AFFF, commonly used as a firefighting agent against petroleum fuel fires, often contains PFAS. Credit: Chris Rua, PHE

In October 2021, the U.S. Environmental Protection Agency (USEPA) published the PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024, a comprehensive overview of the USEPA’s approach to addressing per- and poly-fluoroalkyl substances (PFAS) over the next four years.  The roadmap establishes new USEPA PFAS policies, actions, and timelines to safeguard public health, protect the environment, and hold polluters accountable. According to the USEPA, the actions described in the Strategic Roadmap represent important and meaningful steps to safeguard communities from PFAS contamination and to promote enduring and protective solutions.

This Pulse article provides a brief background on PFAS and highlights key elements of the USEPA PFAS Roadmap.  A complete copy of the Roadmap can be found here.

Background on PFAS

By now, most environmental professionals are aware of the environmental and health risks posed by PFAS. Over the past 10 years or so, this chemical family and other similar compounds have been extensively reported on and studied. We are learning more everyday about the extent of their presence in the environment, and the vast number of commercial products and industrial chemicals that contain PFAS.

Sometimes called “forever chemicals,” PFAS can persist in the environment for extremely long periods of time. Because of their widespread use and their persistence in the environment, PFAS are routinely found in water, air, fish, and soil at locations across the nation and the globe (USEPA 2022). Many PFAS are present at low levels in a variety of food products and can be found in the blood of people and animals all over the world.

Highlights of USEPA’s Strategic Roadmap

The Strategic Roadmap focuses on three guiding strategies:

  • Increasing investments in research

  • Leveraging existing authorities/regulations to take immediate action to restrict environmental releases of PFAS compounds

  • Accelerating the cleanup of PFAS-contaminated sites

USEPA’s strategic approach embodies on the following principles:

  • Considering the Lifecycle of PFAS

  • Getting Upstream of the Problem

  • Holding Polluters Accountable

  • Ensuring Science-Based Decision-Making

  • Prioritizing Protection of Disadvantaged Communities

This summary will focus primarily on regulatory requirements relevant to the Strategic Roadmap’s objectives.  Emerging requirements of the Clean Air Act (CAA), Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Emergency Planning and Community Right-to-know Act (EPCRA), the Safe Drinking Water Act (SDWA), and the Toxic Substances Control Act (TSCA) either drive or will be directly impacted by USEPA’s emerging PFAS strategy.

Clean Air Act.  Among other things, the CAA requires USEPA to regulate emissions of hazardous air pollutants (HAPs), which are pollutants known or suspected to cause cancer or other serious health effects.  While PFAS compounds are not currently regulated under the CAA, USEPA is studying PFAS air emissions to inform future regulatory decisions.  The study includes identifying known and potential future sources of PFAS emissions, developing methods to monitor PFAS emissions, identifying mitigation measures, and gaining a better understanding of the fate and transport of PFAS air emissions.  According to the Strategic Roadmap, USEPA hopes to have completed this analysis by fall of 2022, including any recommendations for including PFAS on the list of HAPs.

Clean Water Act. Effluent Guidelines are national regulatory standards for wastewater discharged to surface waters and municipal sewage treatment plants. USEPA hopes to use this existing framework to restrict PFAS discharges from industrial sources, particularly those in the following priority industry categories: organic chemicals, plastics, and synthetic fibers; pulp, paper, and paperboard; textile mills; electroplating; metal finishing; leather tanning and finishing; paint formulating; electrical and electronic components; and plastics molding and forming. The process of updating these rules is expected to begin later this year.

The USEPA is also planning to use the existing National Pollutant Discharge Elimination System (NPDES) to help enforce PFAS regulations.  Under the CWA, facilities are prohibited from discharging pollutants through a point source into a water of the United States unless they have an NPDES permit. These permits include limits on what can be discharged, monitoring and reporting requirements, and other provisions to protect water quality.  Monitoring for PFAS compounds may be added to the requirements for certain industries.

Firefighting foam being used for fire training. Credit: Royal New Zealand NAVY/CC BY-ND 2.0

Comprehensive Environmental Response, Compensation, and Liability Act. The CERCLA Program, also known also as Superfund, was passed in 1980 to identify sites where hazardous materials threaten the environment and/or public health as a result of leakage, spillage, or general mismanagement (particularly the lack of a good hazardous waste removal plan); identify the responsible party; and ensure the party responsible for the release or spill is held responsible for the clean-up. The USEPA intends to propose new rulemaking to add certain PFAS compounds to the list of “hazardous substances” regulated under CERCLA, which would require facilities to report spills and releases of PFAS compounds that meet or exceed the applicable reportable quantity. Designating PFAS compounds as hazardous substances under CERCLA would also allow federal, state, Tribal, and local governments to obtain information regarding the locations and extents of these releases. In addition, agencies could seek cost recovery or contributions for costs incurred during any required remediation or cleanup of these compounds. According to the Strategic Roadmap, the proposed rule is expected to be released in the spring of 2022, and the final rule is anticipated by the summer 2023.

Emergency Planning and Community Right-to-know Act.  Promulgated under Section 313 of EPCRA, the Toxics Release Inventory (TRI) requires industrial and federal facilities to report release of certain toxic chemicals.  Although some PFAS compounds are included on the list of TRI-reportable chemicals, current exemptions and exclusions significantly limit the amount of PFAS data that is reported to USEPA.  In 2022, USEPA intends to propose rulemaking that will not only add additional PFAS compounds to the TRI list but will re-categorize these and current TRI-regulated PFAS compounds as “Chemicals of Special Concern” and remove the de minimis eligibility from supplier notification requirements.  This will expand the types and amounts of PFAS releases that will be required to be reported.

Safe Drinking Water Act.  Currently, under the SDWA, USEPA requires water systems to conduct sampling for unregulated contaminants every five years.  In March 2021, the proposed Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) was published.  The proposed UCMR 5 would require public drinking water systems to collect routine samples for PFAS compounds for one 12-month period between January 2023 and December 2025.  The data gathered during this period would improve USEPA’s ability to conduct state and local assessments of PFAS contamination of drinking water supplies across the nation.

Under the SDWA, USEPA also has the authority to set enforceable National Primary Drinking Water Regulations (NPDWRs) for drinking water contaminants.  In March 2021, USEPA published the Fourth Regulatory Determinations, which included a final determination to regulate two specific groups of PFAS compounds in drinking water: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). USEPA developed and published maximum contaminant limit (MCLs) for these groups under the National Primary Drinking Water Regulations. In addition to PFOS and PFOA, USEPA is also evaluating adding additional PFAS compounds to the NPDWRs in the future. The proposed regulation is expected to be released in the fall of 2022, with final regulations anticipated by the fall of 2023.

Credit: OSHA

Toxic Substances Control Act. TSCA provides USEPA with authority to enforce reporting, record-keeping, testing requirements, and certain restrictions relating to a wide range of chemical substances and/or mixtures. The Strategic Roadmap identifies the following proposals with respect to TSCA:

  • To address the currently limited toxicity data for PFAS compounds, USEPA is developing a national PFAS testing strategy to deepen understanding of the impacts of categories of PFAS, including potential hazards to human health and the environment.  The testing strategy will be used to identify gaps in the current body of data and to select representative chemicals as priorities for additional studies.

  • USEPA plans to apply a rigorous premanufacture notice review process for new PFAS compounds moving forward, to ensure that these substances are safe before they enter commerce.  This process may also be applied to legacy uses for PFAS that have not been actively manufactured in years.  Under the proposed rules, USEPA could consider reintroduction of these legacy uses as “new” uses subject to the enhanced review process.

  • In addition to looking ahead, USEPA also plans to revisit past PFAS regulatory decisions and address those that may be insufficiently protective of human health and the environment.

  • In June 2021, USEPA published a proposed data-gathering rule that would collect certain information on any PFAS manufactured since 2011, including information on uses, production volumes, disposal, exposures, and hazards. Public comments on the proposal will be considered while the rule is finalized before the expected adoption date of January 1, 2023. Information gathered under this rule will enable USEPA to better characterize the sources and quantities of manufactured PFAS in the United States and will assist with future research, monitoring, and regulatory efforts.

This article has highlighted action items presented in the USEPA’s PFAS Strategic Roadmap.  Additional initiatives and regulatory actions are also being considered.  Further information may be found through a careful review of the Strategic Roadmap.  If you have questions or concerns, PHE’s staff of regulatory compliance experts can help.  Feel free to reach out to Chris Rua, Associate Principal, at 732-278-4279 or chrisr@phe.com with questions on PFAS or other environmental compliance needs.

Chris has over 21 years of experience performing environmental due diligence, site investigations, and environmental compliance evaluations (ECEs) at hundreds of sites for public and private sector clients across the country. When doing ECEs, Chris is charged with staying abreast of emerging issues and new regulations, such as PFAS and PFAS management. Chris manages PHE’s Neptune, New Jersey office.