Federal Regulation and Legislation of PFAS Will Continue to Accelerate in 2022

January 14, 2022
John F. Gullace, Esq. and Jessica D. Hunt, Esq.
MGKF Special Alert - Federal Forecast 2022

Planned Regulatory Activity at EPA
On October 18, 2021, EPA released its PFAS Strategic Roadmap which sets forth EPA’s plans to regulate per- and polyfluoroalkyl substances (PFAS) through 2024. In 2022, EPA is planning a number of significant actions to address PFAS contamination across environmental media.  First, EPA is seeking to gain new data and information pertaining to the risks associated with individual PFAS and PFAS mixtures, and intends to complete draft Integrated Risk Information System (IRIS) assessments for public comment and peer review for perfluorohexanesulphonic acid (PFHxS), perfluorohexanoic acid (PFHxA), perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFDA) in 2022, and publish a final perfluorobutyrate (PFBA) IRIS assessment by the fall of 2022.  In addition, EPA plans to increase its efforts to develop and validate “total PFAS” analytical methods, which includes developing a draft analytical method for measuring additional PFAS in air emissions, and draft methods and approaches for evaluating PFAS leaching from solid materials by the fall of 2022.  

EPA also plans to take the following actions under each of the following statutes by the end of 2022. 

Clean Air Act

  • Evaluating options to regulate PFAS under the Clean Air Act, including listing certain PFAS as hazardous air pollutants, by the fall of 2022.

Toxic Substances Control Act (TSCA)

  • Proposing a rulemaking to categorize the PFAS on the Toxic Release Inventory (TRI) as “Chemicals of Special Concern” and remove the de minimis eligibility from supplier notification requirements for all “Chemicals of Special Concern.”
  • Continuing to update the list of PFAS subject to TRI.
  • Finalizing its data-gathering rule which would collect certain information on PFAS compounds manufactured since 2011, including information on uses, production volumes, disposal, exposures, and hazards.
  • Evaluating its authority under TSCA to regulate abandoned uses of PFAS as well as future uses of PFAS on the inactive portion of the TSCA TRI, by the summer of 2022.

Safe Drinking Water Act and Clean Water Act

  • Developing proposed National Primary Drinking Water regulations for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), with a proposed regulation to be published in the fall of 2022, and a final regulation promulgated in the fall of 2023.
  • Publishing health advisories for perfluorobutane sulfonate (PFBS) and GenX chemicals based on final toxicity assessments by the spring of 2022.
  • Launching detailed studies on facilities where EPA has preliminary data on PFAS discharges, which will include data from electrical and electronic components manufacturers, textile mills, and landfills.
  • Proposing monitoring requirements in federally issued NPDES permits at facilities where PFAS are expected or suspected to be present in wastewater and stormwater discharges, using EPA Method 1633. Specifically, EPA will propose that NPDES permits (1) contain conditions based on product elimination and substitution when a reasonable alternative to PFAS is available in the industrial process; (2) require best management practices to address PFAS-containing firefighting foams for stormwater permits; (3) require enhanced public notification and engagement with downstream communities and public water systems; and (4) require pretreatment programs to include source control and best management practices to protect wastewater treatment plant discharges and biosolid applications. 
  • Issuing new guidance recommending that state-issued permits that do not already include monitoring requirements for PFAS use EPA Method 1633 to sample for PFAS at facilities where PFAS is expected or suspected to be present in wastewater and stormwater discharges.
  • Publishing a multi-lab validated analytical method to detect PFAS in environmental media, including wastewater, surface water, and biosolids.
  • Issuing national recommended ambient water quality criteria for PFAS to protect aquatic life.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

  • Developing a Notice of Proposed Rulemaking to designate PFOA and PFOS as CERCLA hazardous substances by the spring of 2022. The designation of PFOA and PFOS as hazardous substances would require facilities to report PFOA and PFOS releases that meet or exceed a reportable quantity, would trigger remediation obligations, and would enable EPA and private parties to recover costs incurred in cleaning up contamination of these substances.
  • Developing an Advance Notice of Proposed Rulemaking to seek input on whether to designate other PFAS as CERCLA hazardous substances.

Pending Federal Legislation on PFAS
There are currently more than 45 pending bills before Congress addressing PFAS, and more can be expected.  Largely, the pending legislation addresses prohibiting the use of PFAS in food packaging, cosmetics, and other products, and requiring EPA to undertake various actions under the environmental statutes.  In addition, the National Defense Authorization Act for Fiscal Year 2022, signed by President Biden on December 27, 2021, imposes certain obligations on the Department of Defense regarding its handling and remediation of PFAS, and increases public access to information. 

It remains unclear whether any of the pending legislation will gain enough traction to become law.  Despite the uncertainty of federal legislation, one thing is certain, 2022 will be a very busy year for EPA on the regulatory front.