Regulation of per- and polyfluoroalkyl substances | Clark Hill PLC

During the first half of 2022, the U.S. Environmental Protection Agency (EPA) continued to make progress on actions outlined in its Per- and Polyfluoroalkyl Substances (PFAS) Strategic Roadmap, which contains a timeline for planned agency activities on PFAS for the next three years.

On June 15, 2022, the EPA issued four drinking water health advisories for PFAS at near zero levels. The EPA has set interim updated Lifetime Health Advisory Levels (HALs) of 0.004 parts per trillion (ppt) (or 4 parts per quadrillion) for perfluorooctanoic acid (PFOA) and 0.02 ppt for perfluorooctane sulfonic acid (PFOS). Previous HALs for PFOA and PFOS were 70 ppt. The EPA has also established final HALs of 10 ppt for hexafluoropropylene oxide dimer acid and its ammonium salt (GenX Chemicals) and 2,000 ppt for perfluorobutane sulfonic acid and its potassium salt. (PFBS).

The EPA recognizes that the new HALs for PFOA and PFOS are below the level of detection (determination of the presence of a substance) and quantification (ability to reliably determine the amount of a substance present) according to the currently approved methods of analysis. Therefore, environmental testing laboratories will have both a challenge and an opportunity to develop improved testing methodologies to accurately quantify PFAS concentrations at HAL levels.

Although HALs are not legally enforceable, these significantly reduced levels will inform EPA’s development of National Primary Drinking Water Regulations (NPDWRs) for PFOA and PFOS, which are still expected to be proposed by now. the end of 2022, as well as potential NPDWRs for other PFAS or groups of PFAS. EPA must consider economic factors and technical feasibility when proposing NPDWRs, but the new HALs will guide the establishment of NPDWRs.

To treat groundwater contaminated with PFAS, new HALs can prompt states that have issued or are in the process of issuing groundwater cleanup criteria for these PFAS to consider more stringent levels of remediation. For example, some states have adopted the EPA’s former HAL of 70 ppt as their sanitation standard, while other states have set standards lower than the 70 ppt level, but these standards are now considerably higher than HAL news. It will be interesting to see if states act quickly to adopt or revise their cleaning standards, or instead wait for the EPA to release its proposed NPDWRs (EPA drinking water standards are generally clean water standards underground by default).

The EPA still plans to issue a proposed rule to designate PFOA and PFOS as Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) hazardous substances. Hazardous substance designations would improve the ability of government authorities to obtain information regarding the location and extent of releases of these chemicals, as well as for the EPA, other agencies, and private parties to seek recovery of costs or a contribution to the costs incurred for their cleaning. Meanwhile, on May 18, 2022, the EPA added five PFAS [GenX chemicals, PFOS, PFOA, perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS)] to the list of Regional Screening Levels (RSLs) and Regional Disposal Management Levels (RMLs), which help the EPA determine whether further investigation or action is needed to protect public health in locations where PFAS are detected. Subsequent HALs issued may prompt the EPA to review these RSLs and RMLs.

Finally, the EPA is working on establishing effluent guidelines and developing analytical methods (EPA Draft Method 1633) and water quality criteria for PFAS in wastewater discharges. ‘waste. As this work continues, the EPA released a memorandum on April 28, 2022, outlining steps that permit writers can implement under the National Pollutant Discharge Elimination System (NPDES) and programs. pre-treatment to improve monitoring arrangements, use draft method 1633 and implement pollution. prevention and best management practices to address PFAS releases at source. The memorandum provides guidance for NPDES permits issued by the EPA and for industrial users where the EPA is the pretreatment controlling authority. However, states that have been authorized by the EPA to issue their own NPDES permits, although not bound by the EPA memorandum, may choose to adopt any or all of its guidelines.

Manufacturers should continue to closely monitor regulatory developments regarding PFAS, which occur at the federal and state levels on a weekly, if not daily, basis. As a threshold, manufacturers must assess whether their operations use PFAS chemicals intentionally or unintentionally. As PFAS come under greater regulatory scrutiny, manufacturers should consider alternatives to these chemicals, where appropriate, as the continued use of PFAS will only become more complicated and expose manufacturers to increasing potential liability. The unique challenges that PFAS pose to manufacturers in the context of real estate and corporate transactions and site remediation were discussed during our free two-part mini-webinar series on June 21-22.

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