Federal PFAS Regulation, Implementation, and Enforcement Set to Continue at Breakneck Pace in 2024

January 18, 2024
John F. Gullace, Esq., Alice F. Douglas, Esq. and Technical Consultant Michael C. Nines, P.E., LEED AP

In December 2023, EPA released the Second Annual Progress Report on its 2021 PFAS Strategic Roadmap which sets forth EPA’s accomplishments to-date and plans to regulate per- and polyfluoroalkyl substances (PFAS) through 2024.  PFAS regulation during 2023 occurred at a breakneck pace, and 2024 appears to be no different, with EPA planning a number of significant actions to continue to address PFAS across environmental media.  Most notably, EPA is seeking to finalize two significant rulemakings in the 1st Quarter 2024.  The first includes a rule that will designate two PFAS as CERCLA hazardous substances.  The second is a rule that will establish national primary drinking water maximum contaminant levels (MCLs) for PFOA, PFOS, and four additional PFAS chemicals.  Both rulemakings are anticipated to have wide-reaching implications.  The EPA also plans to continue to roll-out over $10 billion in dedicated funding from the Bipartisan Infrastructure Law (BIL), known as the Infrastructure Investment and Jobs Act, for investments in drinking water, wastewater, and stormwater infrastructure, as well as funding dedicated to addressing emerging contaminants at legacy Superfund and brownfield sites.

Also new for 2024 is implementation of the Agency’s National Enforcement and Compliance Initiative (NECI) for fiscal years 2024 through 2027, which sets six priority areas for federal enforcement.  The EPA has listed Addressing Exposure to PFAS as its second highest national enforcement priority behind climate change issues.

Lastly, EPA will remain focused on improvements to chemical data availability and public access to such data through release of analytical tools that integrate data on PFAS reporting, testing, and occurrences in communities.

Set forth below is a more detailed summary of the regulatory actions that EPA plans to take under each of the following federal legislative programs by the end of 2024.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
In the Fall of 2022, EPA published a Notice of Proposed Rulemaking in the Federal Register seeking to designate two PFAS—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers—as CERCLA hazardous substances. 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. 

The EPA anticipates finalizing a rulemaking designating these two aforementioned PFAS as CERCLA hazardous substances in early 2024, and that it is simultaneously developing a PFAS CERCLA enforcement discretion policy with the assistance of public listening sessions.

Relatedly, EPA’s NECI for fiscal years 2024 through 2027 addresses enforcement of PFAS once the anticipated CERCLA designation becomes final.  Of note, the NECI would focus on implementing EPA’s PFAS Strategic Roadmap and holding responsible those who significantly contribute to the release of PFAS into the environment, such as major manufacturers and users of manufactured PFAS, federal facilities that are significant sources of PFAS, and other industrial parties.  If PFOA and PFOS are listed as hazardous substances, EPA’s NECI states that it does not intend to pursue entities where equitable factors do not support CERCLA responsibility, such as farmers, water utilities, airports, or local fire departments.

In April 2023, EPA also published an advance notice of proposed rulemaking requesting public input on whether the agency should consider designating as CERCLA hazardous substances categories of PFAS; seven specific PFAS substances and their salts and structural isomers; and precursors to PFOA, PFOS and those seven specific substances.  Additional regulatory updates on this front are expected in 2024.

Safe Drinking Water Act and Clean Water Act (SDWA / CWA)
In March of 2023, the EPA proposed a rulemaking establishing national primary drinking water regulation (NPDWR) for PFOA, PFOS, and four additional PFAS chemicals.  After a public comment period, the EPA is now seeking to finalize the important drinking water rulemaking in January 2024, as the Office of Management and Budget approved the NPDWR just before the New Year.  The final rulemaking is anticipated to set individual numerical limits for the Maximum Contaminant Level (MCL) and the Maximum Contaminant Level Goal (MCLG) for PFOA and PFOS.   For PFOA and PFOS, the EPA is anticipated to finalize an MCL of 4.0 ng/L for each, as the EPA believes that is the lowest level that can be reliably measured through laboratory analysis. In contrast to the individual limits for PFOA and PFOS, the EPA is anticipated to regulate the remaining four PFAS (PFNA, PFHxS, HFPO-DA, and PFBS) as a mixture and to use a unique hazard index (HI) approach for the limits. A HI is a reference value used to evaluate potential cumulative health risks from exposure to a mixture of chemicals.  The EPA has never before used a HI for a national drinking water standard.

Once finalized, Public Water Systems (PWS) throughout the Nation would need to complete initial monitoring for the six PFAS at each entry point to the water distribution system within three years of NPDWR finalization.

Starting in mid-2023 and continuing through 2025, the EPA will continue release of the much-anticipated PFAS occurrence data for public drinking water systems through the Unregulated Contaminant Monitoring Rule 5 (UCMR 5). UCMR 5 requires more than 10,000 public water systems (PWS) across the nation to monitor their systems for an expanded list of 29 individual PFAS compounds and report this information to the Agency, and ultimately to the public.  The release of UCMR 5 data in real-time, along with a continuation of quarterly rolling data releases to the public, has generated great interest to-date and is anticipated to further drive regulatory actions and decision-making. 

Related to occurrence data collected during the UCMR 5 effort referenced above, the EPA will need to complete a Regulatory Determination decision for drinking water associated with its November 2022 Contaminant Candidate List 5 (CCL 5).  The CCL 5 contains a list of contaminants that are currently not subject to any proposed or promulgated NPDWR but are known or anticipated to occur in public water systems.  In a major development, the EPA’s publication of the CCL 5 included PFAS as a group, which according to EPA’s structural definition of PFAS, would include over 10,000 individual chemical PFAS substances.  EPA must now determine whether or not to regulate at least five contaminants from the CCL 5 (including PFAS as a group) in a separate process called a Regulatory Determination.  The Agency will make Regulatory Determinations for the CCL 5 contaminants for which there are sufficient health effects and occurrence data and which present the greatest public health concern.  The UCMR 5 occurrence data is sure to play a large role in the agency’s decision-making process. 

Test Methods
Final approval of EPA Test Method 1633 is anticipated in 2024 with the 4th draft of the much-anticipated non-drinking water test method having been published in July 2023. This method is a laboratory validated, direct injection EPA method for detection of 40 PFAS in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue. Once published as final, the EPA is expected to quickly initiate a process to formally codify the Method as an approved Method under the Clean Water Act in 2024.

EPA is also anticipated to continue with validation of Draft EPA Method 1621, which is a single laboratory validated method to screen for organofluorines in wastewater.  The draft method is labeled as a screening method because it does not quantify all organofluorines with the same accuracy and has some known interferences.

ELG Plan 15
Published in January 2023, the EPA’s final Effluent Limitation Guidelines (ELG) Plan 15 described analyses, studies, and rulemakings related to ELGs and pretreatment standards for PFAS.  ELGs are national, technology-based regulations developed to control industrial wastewater discharges to surface waters and into publicly owned treatment works.  ELGs are intended to represent the greatest pollutant reductions that are economically achievable for an industry.  Notably, ELG Plan 15 seeks to revise the ELGs for the (1) Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) category to address PFAS wastewater discharges from facilities manufacturing PFAS, (2) revise the Metal Finishing ELGs to address PFAS discharges from chromium electroplating facilities, (3) prepare revisions to the ELG applicable to landfills, and (4) conduct detailed studies on PFAS in wastewater discharges from textile and carpet manufacturers.  Also, notable and wide-reaching, the EPA announced its intent to initiate a POTW Influent Study of PFAS, which will focus on collecting nationwide data on industrial discharges of PFAS to POTWs, including categories recently reviewed.  EPA intends to undertake this study to verify sources of PFAS wastewater and help POTWs assess the need for control measures at the source.

Ambient Water Quality Criteria
Development of final national recommended ambient water quality criteria for PFOA and PFOS to protect aquatic life will continue in 2024. Draft ambient water quality criteria were previously published in April 2022.  EPA will now prepare a response to public comments document, update the draft PFOA and PFOS criteria documents considering public comments, and consider new toxicity data published since September 2021 prior to the agency issuing final recommended criteria.  Once finalized, states and authorized tribes can adopt the recommended criteria into water quality standards to protect against effects on aquatic life.

EPA is currently completing risk assessments for PFOA and PFOS in biosolids, which the EPA has committed to completing by December 2024.  In advance of completion of the risk assessments, the EPA, the Environmental Council of the States (ECOS), and the National Association of State Departments of Agriculture (NASDA) have jointly developed Principles for Preventing and Managing PFAS in Biosolids.  These principles define key areas for regulators and stakeholders to ensure the fate and transport of PFAS contaminated biosolids do not result in harm to human health of the environment.

Clean Air Act (CAA)
While originally referenced in the PFAS Strategic Roadmap for a target date of Fall 2022, EPA is anticipated to continue evaluating options during 2024 to regulate PFAS under the Clean Air Act, including listing certain PFAS as hazardous air pollutants (HAPs).

In August 2023, the EPA proposed additional data collection from facilities that emit PFAS to the air through the Air Emissions Reporting Rule (AERR), which would seek to collect detailed PFAS data, enabling more refined air quality and exposure modeling.  The EPA expects to finalize the rule in July 2024.

EPA is also developing test methods to detect PFAS in stack emissions and ambient air. These include Other Test Method-50 (OTM-50), which the EPA’s Office of Research and Development is currently developing for detection of PFAS products of incomplete combustion (PICs), anticipated for publication in 2024.  OTM are EPA test methods that have not yet gone through the agency’s rulemaking process but are urgently needed to support agency initiatives.  EPA is also considering development of sampling and analysis methods for targeted and non-targeted PFAS ambient air measurements.  Applications will include fence-line monitoring for fugitive emissions, deposition, and receptor exposure using field deployable Time of Flight/Chemical Ionization Mass Spectrometer and summa canisters and sorbent traps techniques.

Federal Guidance on PFAS Destruction
An update of EPA’s Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials That Are Not Consumer Products is planned by early 2024.  EPA’s Interim Guidance originally published in December 2020 outlined the current state of the science on techniques and treatments that may be used to destroy or dispose of PFAS and PFAS-containing materials from non-consumer products, including Aqueous Film Forming Foam, soil and biosolids, textiles, spent filters, membranes, resins, granular carbon, and other waste from water treatment, landfill leachate containing PFAS, and solid, liquid, or gas waste streams containing PFAS from facilities manufacturing or using PFAS.  The guidance does not apply to consumer products, such as non-stick cookware and water-resistant clothing.  The guidance generally describes thermal treatment, landfill, and underground injection technologies that may be effective in the destruction or disposal of PFAS and PFAS-containing materials.  EPA plans to update this important guidance based on the evolution of PFAS treatment techniques, research and development, and analytical techniques to measure PFAS.

Resource Conservation and Recovery Act (RCRA)
EPA plans to issue a Notice of Proposed Rulemaking designating certain PFAS as Hazardous Constituents under the RCRA program; the proposal is intended as a response to a June 23, 2021 petition by Governor Michelle Lujan Grisham of New Mexico requesting that PFAS be regulated under RCRA, either as a class or as individual chemicals. The proposed rulemaking would add PFOA, PFOS, PFBS, and GenX to the RCRA Hazardous Constituents list under Appendix VIII.  This action was anticipated to be published through a Notice of Proposed Rulemaking by the last quarter of 2023.  Although EPA missed that deadline, it is expected that the forthcoming rulemaking would subject these four chemicals to corrective action requirements and would be a necessary building block for future work to regulate PFAS as a listed hazardous waste. 

A second rulemaking is also anticipated which would clarify that the RCRA Corrective Action Program has the authority to require investigation and cleanup for wastes that meet the statutory definition of hazardous waste, as defined under RCRA section 1004(5).  This modification would further clarify that emerging contaminants such as PFAS can be cleaned up through the RCRA corrective action process. 

In its Second Annual Progress Report, EPA reported that it expects to propose these two rulemakings once interagency reviews are complete.  Further developments are expected in 2024.

Emergency Planning and Community Right-to-Know Act (EPCRA)
A final rule to strengthen PFAS reporting required under the Toxic Release Inventory (TRI) was published in October 2023.  EPA’s final rule was a major enhancement for TRI reporting purposes and eliminated the de minimis exemption for PFAS manufacturing, processing, or other use reporting thresholds of 100 pounds for each of the listed PFAS subject to TRI reporting.  The prior reporting framework allowed facilities that report to TRI to disregard certain de minimis concentrations of PFAS chemicals in mixtures or trade name products (below 1 percent concentration for each of the TRI-listed PFAS).  The final rule eliminated the availability of the de minimis exemption and requires facilities to report on PFAS regardless of their concentration in products.  Even more importantly, the EPA’s final rule removed the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern.  This change is designed to help ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase, regardless of their concentration.  Normally, if these constituents are below certain de minimis levels, they are not published or reported on documents such as Safety Data Sheets (SDS) and similar documents provided by suppliers of raw materials and products.  This aspect of the final rule takes effect with the first shipment of supplier’s products in 2024 and is anticipated to close a significant data gap in PFAS reporting moving forward.  This new information availability regarding the presence of PFAS in raw materials and products is anticipated to have wide-ranging implications.

For purposes of TRI reporting moving forward, for Reporting Year 2023 (reporting forms due by July 1, 2024), the EPA added nine additional PFAS to the TRI list for a total of 189 reportable PFAS.  For Reporting Year 2024 (reporting forms due by July 1, 2025), the EPA has added seven additional PFAS to the TRI list for a total of 196 reportable PFAS.  Facilities in TRI-covered industry sectors should begin tracking and collecting data on these chemicals during 2024.

Toxics Substances Control Act (TSCA)
EPA is engaged in several actions related to PFAS under TSCA.  See our 2024 TSCA forecast article for further information.