Publication

Yesterday, the White House unveiled a comprehensive national strategy to address Per- and Polyfluoroalkyl Substances (PFAS) pollution that includes actions involving eight (8) different federal agencies. As part of the roll-out, the U.S. Environmental Protection Agency (EPA) released its “PFAS Strategic Roadmap” detailing specific PFAS-related “Commitments to Action” between now and 2024. 

EPA’s Strategic Roadmap

According to the White House Fact Sheet, EPA’s PFAS Roadmap focuses on concrete actions over the next three years to “control PFAS at its sources, hold polluters accountable, ensure science-based decision making, and address the impacts on disadvantaged communities.” EPA’s Roadmap identified “clear opportunities to restrict releases into the environment” by focusing on the limited number of industrial facilities that produce PFAS feedstock and a “relatively narrow” set of industries that directly discharge PFAS into water or soil, or generate air emissions in large quantities. The industries identified by EPA with significant documented PFAS discharges are PFAS production and processing, metal finishing, airports, pulp and paper, landfills, and textile and carpet manufacturing. EPA identified its intent to use all available regulatory and permitting authorities to limit emissions and discharges from industrial facilities and to hold parties responsible for PFAS-related remediation efforts.

Key Actions Identified by EPA Program Office

EPA’s PFAS Roadmap includes nearly 40 different specific actions between 2021 and 2024 for five different EPA Program Offices, plus cross-program efforts and public outreach initiatives.  

Office of Water

• Set enforceable drinking water limits under the Safe Drinking Water Act for PFOA and PFOS via proposed rule in Fall 2022. Will actively consider whether to set drinking water limits for additional PFAS.
• Use information from EPA’s multi-industry study of PFAS discharges to issue Effluent Limitations Guidelines (ELGs) for organic chemicals, plastics and synthetic fibers, metal finishing, and electroplating. Will also begin detailed studies related to electrical and electronic components, textile mills, and landfills to determine whether future rulemaking is necessary, and begin data reviews for leather tanning and finishing, plastics molding and forming, and paint formulating. 
• EPA will monitor industrial categories where the phaseout of PFAS is projected by 2024, including pulp, paper, paperboard, and airports. Results of this monitoring, and whether future regulatory action is needed, will be addressed in the Final ELG Plan 15 in Fall 2022.
• Issue guidance to state permitting authorities to address PFAS in state-issued permits to include monitoring requirements for 40 PFAS at facilities whether PFAS is expected or suspected to be present in wastewater and stormwater discharges.
• Finalize risk assessments for PFOA and PFOS in biosolids by Winter 2024.
• Will publish the final toxicity assessment for GenX and five additional PFAS – PFBA, PFHxA, PFHxS, PFNA, and PFDA; issue public health advisories for Gen X and PFBS.
• Use federally-issued National Pollutant Discharge Elimination System (NPDES) permits to impose conditions related to product elimination and substitution, and require pretreatment programs to include source control and best management practices to protect wastewater treatment plant discharges and biosolid applications. This is relevant to the states where EPA administers the NPDES permit program – MA, NH, NM, DC, territories, federal waters, and Indian Country.
• Release of validated analytical method for 40 PFAS compounds in eight matrices, including wastewater, surface water, and biosolids

Office of Land and Emergency Management

• Designating Perfluorooctanoic acid (PFOA) and Perfluorooctanesulfonic acid (PFOS) as a “hazardous substance” under CERCLA to require facilities to report releases that meet or exceed the reportable quantity assigned to each substance. CERCLA designation will also allow EPA and other agencies, as well as states, to seek cost recovery or contributions for costs incurred for the cleanup of designated hazardous substances. Timing is Spring 2022. 

Office of Chemical Safety and Pollution Prevention

• Announcement of National PFAS Testing Strategy that assesses categories of PFAS to speed up the evaluation of potential human health and ecological effects of about 2,000 or more compounds to identify which compounds require additional testing under the Toxic Substances Control Act (TSCA). EPA asserts this will save time and resources compared to a compound-by-compound evaluation. EPA will categorize PFAS compounds using structural information and available toxicity data to determine PFAS categories for further hazard assessments and to inform hazard- or risk-based decisions. This strategy identifies the human health-related and ecologically-related data gaps that require further testing. Then, EPA will use its TSCA authority to issue mandatory orders to PFAS manufacturers (EPA Administrator Regan specifically named Chemours and 3M in his remarks yesterday) to conduct and fund these studies. EPA plans to issue the first round of orders, strategically selected from more than 20 different categories of PFAS, to PFAS manufacturers by the end of 2021.
• Evaluation of past and pending TSCA approvals, including previously granted low-volume exemptions, to address PFAS in use/pending approval that are insufficiently protective. EPA also expects additional rulemaking in 2022 to broaden the Toxics Release Inventory (TRI) reporting obligations, including removal of the de minimis threshold for supplier notification requirements and adding more PFAS to the TRI list. Finally, EPA announced its intention to propose a new data-gathering rule that would require submittal of information related to any PFAS manufactured since 2011. That rule is expected before January 2023.

​​​​​Office of Air and Radiation

• Develop technical information needed on PFAS air emissions to inform future actions under the Clean Air Act, including whether PFAS should be considered hazardous air pollutants (HAPs). EPA will also evaluate whether PFAS air pollution disproportionately affects communities with environmental justice concerns.  

Office of Research and Development

• Develop methods for accurate evaluation of PFAS compounds in the environment with a focus on air emissions, wastewater, and drinking water.
• Continue evaluation of different technologies available to reduce PFAS in the environment, manage PFAS-containing materials, and guidance for destroying/disposing of certain PFAS compounds.

Aggressive Agency Enforcement

EPA considers its current statutory authority sufficient to enable the agency, under certain circumstances, to require parties responsible for PFAS contamination to characterize the nature and extent of PFAS contamination, to put controls in place to limit future releases, and to address contaminated drinking water, soils, and other contaminated media. When EPA becomes aware of a potentially imminent and substantial endangerment situation where PFAS poses a threat to human health, EPA asserts the agency will “swiftly employ its expertise to assess the situation and take appropriate action, including using statutorily authorized powers.”

Other Federal Agency Action

In addition to EPA’s PFAS Roadmap, the Biden-Harris Administration’s PFAS Plan includes actions by several other federal agencies.

• The Department of Defense (DOD) regarding PFAS contamination at DOD sites throughout the country, including numerous sites with significant contamination. Initial assessments at nearly 700 DOD installments and National Guard Locations where PFAS was used or could have been released are expected to be completed by the end of 2023.
• The Food and Drug Administration (FDA) will be expanding its testing of the food supply to estimate dietary exposure to PFAS from food, as well as monitoring the presence and potential exposure to PFAS in cosmetics.
• The United States Department of Agriculture (USDA) is conducting additional food system research, including on animal health.
• The Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), and the Federal Aviation Administration (FAA) are assessing use of firefighting foams with PFAS in emergencies, identifying foam alternatives, and evaluating the risks and appropriate precautions for first responders. 
• The Centers for Disease prevent and Control (CDC) and Agency for Toxic Substances and Disease Register (ATSDR) will continue to develop PFAS exposure assessments and toxicity evaluations of additional PFAS compounds.
• White House Council on Environmental Quality (CEQ) will now conduct interagency coordination of PFAS response activities across the federal government.

Some groups are already raising concerns that EPA’s PFAS Roadmap does not go far enough. For example, some interest groups were disappointed that EPA’s Roadmap did not include designation of PFAS as a hazardous waste under the Resource Conservation and Recovery Act (RCRA) and complained that CERCLA designation of just PFOA and PFOS is too limited and SDWA activity should be expanded now, before the next Unregulated Contaminant Monitoring Rule (UCMR). 

As always, funding and availability of agency resources remain a significant question. The Biden-Harris Administration is seeking $10B of PFAS-related funding in the bipartisan infrastructure package that has not yet passed Congress.

Michael Best continues to track federal and state regulatory activity related to PFAS. To learn more about EPA’s PFAS Roadmap or what the Administration’s PFAS Plan could mean for your business and operations, please contact your Michael Best attorney or Michael Best Strategies LLC contact.