Not So PFAS
Tuesday, November 2, 2021

US Environmental Protection Agency (EPA) is cracking down on certain common “forever chemicals” — both in reporting, use, and cleanups.

The Biden administration is launching a broad multi-agency strategy (US EPA, the Food and Drug Administration, and the departments of Defense, Agriculture, Homeland Security, and Health & Human Services) to regulate long-lasting chemicals known as PFAS (per- and polyfluoroalkyl substances). Their chemical bonds are strong and slow to degrade in the environment. The current versions of these compounds replaced earlier, longer-chain compounds that have been phased out.

Many states currently regulate PFAS in the environment in some ways (e.g., drinking water, action levels, notifications). None along the Gulf Coast so far, however.

PFAS are found in many consumer, commercial, military, and industrial products, such as nonstick cookware, stain-resistant carpets, water-repellent jackets and sports gear, firefighting foam, and even in sticky notes.

These chemicals have been found in groundwater and public and private drinking water systems, and they are believed by some to be associated with developmental defects and serious illnesses.

The new multi-agency strategy is under the Safe Drinking Water Act to establish aggressive PFAS drinking water standards, under the Toxic Substances Control Act (TSCA) to require PFAS manufacturer/importer reporting of PFAS use and toxicity, under the Resource Recovery Conservation Act to manage hazardous waste and apply corrective action to certain PFAS waste, and under the Superfund statute to list PFAS as “hazardous substances” subject to cleanup, particularly at military sites.

PFAS drinking water standards are now on the agenda of both Congress and EPA and will require legislation, research, and rulemaking, which will take some time to develop.

2022 is also a target for EPA to initiate water quality PFAS criteria and water discharge limits under the Clean Water Act.

Listing PFAS under the Superfund statute will also take EPA rulemaking, and PFAS, once listed, will be subject to hazardous waste and substance regulation, release reporting, and cleanup, mostly at industrial expense. Currently, EPA could remediate PFAS-contaminated aquifers and groundwater as Superfund “pollutants and contaminants,” but under some case law could not recover its costs. Listing them as hazardous substances will enable EPA to order industry to clean them up or to pay for cleanup.

Meanwhile, superfunding is still being debated in Congress.

Requiring PFAS reporting under TSCA back through 2011 will allow EPA to learn more about the toxicity, workplace risk, releases, and uses of PFAS in the past. Those involve many hundreds of compounds, and there appear to be no exemptions. A new reporting requirement of this type may require many smaller companies to learn about the complexities of TSCA reporting rules and many other manufacturers, processors, and importers (that must report on PFAS in finished products they import) to gather data that they previously have not been required to keep. This rule has already been proposed by EPA. See 86 Fed. Reg. 41802 (Aug. 3, 2021).

Meanwhile, PFAS toxic tort lawsuits are still brewing, such as the one involving the Cape Fear River.

How long it will take the federal government over the next few years to promulgate PFAS limits and gather the data it needs to regulate and clean up PFAS is unknown, but it’s something that companies involved with PFAS ought to monitor and plan for.

 

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