Federal Regulation of PFAS Will Continue to Accelerate in 2023
In November 2022, EPA released a Progress Report on its 2021 PFAS Strategic Roadmap which sets forth EPA’s plans to regulate per- and polyfluoroalkyl substances (PFAS) through 2024 as well as updates to its regulatory actions for 2023. While regulation of PFAS during 2022 occurred at a breakneck pace, 2023 appears to be no different as EPA is planning a number of significant actions to address PFAS contamination across environmental media. Notably, EPA is seeking to finalize a rulemaking designating two PFAS as CERCLA hazardous substances. In addition, EPA plans to advance a notice of proposed rulemaking seeking to establish national primary drinking water maximum contaminant levels (MCLs) for PFOA and PFOS. 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.
Other notable actions will include EPA’s release of the final Effluent Limitation Guideline (ELG) Plan 15, which will contain key steps for addressing PFAS wastewater discharges from a range of industrial categories and establishment of pre-treatment requirements for sources of PFAS (such as chemical manufacturing, landfills, and metal finishing categories). 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 2023.
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. EPA anticipates finalizing a rulemaking designating these two PFAS as CERCLA hazardous substances in the Fall of 2023.
- EPA also plans to develop an advance notice of proposed rulemaking in the first quarter of 2023 requesting public input on whether the agency should consider designating as hazardous substances precursors to PFOA and PFOS, whether the agency should consider designating other PFAS as CERCLA hazardous substances, and whether there is information that would allow the agency to designate PFAS as a class or subclass of hazardous substances.
Safe Drinking Water Act and Clean Water Act (SDWA / CWA)
- EPA intends to develop a proposed rule establishing a maximum contaminant level goal (MCLG) for PFOA and PFOS by March 3, 2023 as required by the SDWA, to support a national primary drinking water regulation (NPDWR) for PFOA and PFOS. Thereafter, EPA is required to promulgate a NPDWR for those two substances within 18 months after the proposal, which would be September 3, 2024. However, EPA has announced it is targeting finalizing the NPDWR by the end of 2023.
- On June 15, 2022, EPA issued updated interim drinking water health advisory levels (HALs) for PFOA and PFOS, replacing those EPA issued in 2016. These updated advisories were based upon new data which, according to EPA, suggests that lifetime exposure to even near-zero levels of these chemicals can cause certain adverse health effects. The interim HALs have been challenged by various entities and the data and draft analyses used by EPA to establish the non-enforceable HALs are currently undergoing EPA Science Advisory Board (SAB) review. EPA is reviewing and will respond to the SAB comments on the interim HALs as the Agency moves forward to develop MCLGs to support the NPDWR for PFOA and PFOS as referenced above.
- EPA will begin release of the much-anticipated PFAS occurrence data for public drinking water systems starting in mid-2023 through the Unregulated Contaminant Monitoring Rule 5 (UCMR 5). UCMR 5 requires public water systems to monitor their systems for an expanded list of PFAS compounds. The UCMR 5 effort will identify the presence of 29 different PFAS compounds in the nation’s drinking water systems and their concentrations. The release of UCMR 5 data in real-time, along with quarterly rolling data releases to the public, is sure to generate great interest and is anticipated to further drive regulatory actions and decision-making.
- Also in the offing is the potential development of a Regulatory Determination decision for drinking water for a large group of PFAS. In November 2022, the EPA published its Contaminant Candidate List 5 (CCL 5). The CCL is 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 includes 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.
- Validation of Draft EPA Method 1633 will continue in 2023. This method is a single laboratory validated, direct injection EPA method for detection of 40 PFAS in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue. 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.
- The final ELG Plan 15 is expected to be released in 2023, The Plan will describe analyses, studies, and rulemakings related to ELGs and pretreatment standards. 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 will seek 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, and (3) conduct detailed studies on PFAS in wastewater discharges from landfills as well as textile and carpet manufacturers.
- Development of final national recommended ambient water quality criteria for PFOA and PFOS to protect aquatic life will continue in 2023. 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.
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 2023 to regulate PFAS under the Clean Air Act, including listing certain PFAS as hazardous air pollutants (HAPs).
- As part of this effort, EPA is 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 Develop is currently developing for detection of PFAS products of incomplete combustion (PICs), anticipated for publication in 2023. 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.
- 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 December 2023. 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 one of two planned Notices of Proposed Rulemaking designating certain PFAS as Hazardous Constituents under the RCRA program in response to a June 23, 2021 petition by Governor Michelle Lujan Grisham of New Mexico for PFAS to be regulated under RCRA, either as a class or as individual chemicals. The first proposed rulemaking would add PFOA, PFOS, PFBS, and GenX to the RCRA Hazardous Constituents list under Appendix VIII. This action is anticipated to be published through a Notice of Proposed Rulemaking in August 2023 that 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. The second rulemaking 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.
Emergency Planning and Community Right-to-Know Act (EPCRA)
A final rule to strengthen PFAS reporting required under the Toxic Release Inventory (TRI) will be developed in 2023. EPA’s proposed rule (published in December 2022) would eliminate 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 current reporting framework allows 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 would presumably eliminate the availability of the de minimis exemption and require facilities to report on PFAS regardless of their concentration in products. Also important, the EPA’s proposed 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. 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.
Toxics Substances Control Act (TSCA)
EPA is engaged in several actions related to PFAS under TSCA. See our 2023 TSCA forecast for further information.