Federal Regulation and Legislation of PFAS Expected to Accelerate in 2021

January 11, 2021
John F. Gullace, Esq. and Austin W. Manning, Esq.
MGKF Special Alert - Federal Forecast 2021

In 2020, the Environmental Protection Agency (EPA) took several significant actions to address per- and polyfluoroalkyl substances (PFAS) contamination across various mediums that will likely continue to evolve in 2021.

In March of 2020, EPA published a preliminary determination to regulate two forms of the chemical, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), under the Safe Drinking Water Act. It is anticipated that EPA will publish and ultimately promulgate a Maximum Contaminant Level and final National Primary Drinking Water Regulation for PFOA and PFOS in 2021.

2021 will also see the implementation of some form of EPA’s interim strategy for PFAS in federally issued National Pollutant Discharge Elimination System (NPDES) Permits which was published at the end of November 2020. The strategy includes recommendations to incorporate permit requirements for PFAS monitoring and best management practices, as well as the use of the NPDES Permit Writers’ Clearinghouse platform to share PFAS-specific knowledge.

In June of 2020, EPA published a final rule incorporating the addition of 172-PFAS to the list of toxic chemicals covered by the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act. The first reporting deadline for PFAS under the TRI is July 1, 2021. Also, while the means by which this will occur are still unclear, it is anticipated that the Biden administration will press forward with designating PFAS as a hazardous substance under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Most recently, EPA released the interim guidance on the destruction and disposal of PFAS. Notably the interim guidance discusses the thermal treatment of PFAS containing waste which has been the subject of numerous lawsuits over the past year. EPA is accepting comments on the interim guidance up until February 22, 2021 and further action on these issues is to be expected.

Finally, EPA under the Biden administration is expected to accelerate the regulation and study of PFAS compounds in general, including their use, reporting, release and health effects.  Coupled with these efforts, bi-partisan concern over human exposure to PFAS could result in legislation related to PFAS, even in a divided Congress.