U.S. EPA proposes sweeping changes to PFAS regulations, to trigger retroactive reporting by business and Superfund cleanups

Per- and polyfluoroalkyl substances (PFAS) are a group of manmade chemicals used in a variety of products, including food packaging, nonstick pans, ?period products,?toilet paper, and aqueous film forming foams used to extinguish fuel-based fires.

PFAS (also known as PFCs) are environmentally hazardous substances, some of which are persistent and durable. Once released into the environment they will be broken down very slowly; many can remain in the environment for several hundred years and are dispersed over the entire globe.

Some of these pollutants are found in secluded mountain lakes, some accumulate in wildlife, including in the livers of polar bears in the Arctic, and some are also found in human blood.

In over 300 samples of dust, drinking water, serum and urine collected from 81 people and their homes in the U.S., then analyzed for 47 different perfluoroalkyl acids ?(PFAAs) and their precursors, researchers from Indiana University and the Indiana Clinical and Translational Sciences Institute ?detected 39 PFAAs.[1]

Growing concerns about PFAS contamination are driven by evidence that exposure to some PFAS chemicals can lead to adverse health effects such as increased cholesterol, reproductive problems and cancer.[2]

Since 2009, perfluorooctane sulfonic acid and its derivatives (PFOS) have been included in the international Stockholm Convention to eliminate their use. PFOS has?been restricted in the EU for more than 10 years already, under the EU’s Persistent Organic Pollutants (POPs) Regulation.

Greenpeace Germany and Greenpeace USA have been campaigning for the elimination of PFCs (PFAS) in sportwear for the better part of a decade.[3]????????

Federal action in the U.S. against PFAS has up until now been slow.?

In 2019, EPA added per- and polyfluoroalkyl substances, or PFAS, subject to reporting under the Emergency Planning and Community Right-to-Know Act and the Pollution Prevention Act pursuant to the National Defense Authorization Act for Fiscal Year 2020 to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). December 20, 2019, the National Defense Authorization Act?was signed into law.?Section 7321 of the act immediately added certain PFAS to the list of chemicals covered by Toxic Release Inventory under the Emergency Planning and Community Right-to-Know Act ?Section 313 and provided a framework for additional PFAS to be added to TRI on an annual basis. In addition, the National Defense Authorization Act ?established a manufacture, processing, and otherwise use reporting threshold of 100 pounds for each of the listed PFAS.[4]

PFAS in drinking water has been a concern in the State of New Mexico since 2021. The U.S. Environmental Protection Agency (EPA) has not yet established a drinking water standard for any of the PFAS chemicals but has established a Lifetime Health Advisory level for two chemicals in the PFAS family – PFOA and PFOS – at 70 parts per trillion.

On March 14, 2023, EPA announced the proposed National Primary Drinking Water Regulation (NPDWR) for six PFAS including perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS).?

This year (2024), EPA is proposing two rules that would add to the agency’s “comprehensive approach” to tackling PFAS pollution across the country.

EPA is proposing to modify the definition of hazardous waste as it applies to cleanups at permitted hazardous waste facilities through the Resource Conservation and Recovery Act (RCRA), best known as the regulation which governs the U.S. Superfund Program. This modification would assure that EPA’s regulations clearly reflect EPA’s and authorized states’ authority to require cleanup of the full range of substances that the RCRA intended, including emerging chemicals of concern, such as PFAS, that may present substantial hazards, at permitted facilities.[5]?

On January 26, 2024 EPA published a list of specific per- and polyfluoroalkyl substances (PFAS) that trigger reporting requirements under EPA’s recently promulgated Toxic Substances Control Act (TSCA) Section 8(a)(7) PFAS reporting rule. The list is intended to clarify the chemicals that EPA considers PFAS to help the regulated community identify which manufactured or imported PFAS chemicals and PFAS-containing articles are subject to the reporting requirements.

The rule requires that regulated entities submit a retrospective report providing information relating to the manufacture and import of PFAS chemicals for each year in which PFAS or PFAS-containing articles were manufactured or imported between January 1, 2011 and December 31, 2022.[6]

Because the rule does not contain exemptions for small businesses, de minimis usage, or reporting on finished end-use articles (as opposed to chemical products), it is anticipated that many of the entities falling under the rule’s purview will have never before faced similar reporting obligations and may require more guidance than the text of the regulations offer.?

Guidance on which PFAS qualify under the reporting rule is particularly important because the rule uses a “structural definition” of PFAS rather than a discrete chemical list.

The new list?identifies?PFAS chemicals identified in CompTox [an online database of chemical compound, toxicity, and exposure information maintained by EPA] and on the TSCA Inventory as meeting the TSCA [Section] 8(a)(7) data collection structural definition.

There are estimated to be thousands of PFAS that could trigger reporting obligations that are not on EPA’s list, and more may be discovered in the future.?

That is a sweeping change in how PFAS chemicals have been treated by U.S. regulators in the past.

The deadline to submit PFAS reports under the TSCA Section 8(a)(7) reporting rule is May 8, 2025, or November 10, 2025 for entities that meet certain conditions.

Because of PFAS are such a large class of thousands of synthetic chemicals that are used throughout society, business interests can be expected to push back hard against the new reporting requirements.

Cleaning up PFAS polluted sites will be technically difficult and costly.?

Better late than forever.

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[1] ‘American Chemical Society (October 2023). Ultrashort’ PFAS compounds detected in people and their homes, study shows. www.acs.org/pressroom/presspacs/2023/october/ultrashort-pfas-compounds-detected-in-people-and-their-homes.html

[2] New Mexico Environment Department ?(Jan. 18, 2021). Environment Department tackles PFAS contamination while sampling for chemicals in drinking water sources across New Mexico. https://www.env.nm.gov/wp-content/uploads/2021/01/2021-01-18-Two-new-PFAS-efforts-underway.pdf

[3] Greenpeace Germany (2015). Footprints in the Snow. Hazardous PFCs in remote locations around the globe. https://storage.googleapis.com/planet4-international-stateless/2015/09/2a086e17-rae_report_08_2015_english_final.pdf

[4] U.S. Environmental Protection Agency (2020). Changes to TRI Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern. https://www.epa.gov/toxics-release-inventory-tri-program/changes-tri-reporting-requirements-and-polyfluoroalkyl#rule-history

[5] U.S. Environmental Protection Agency (Feb. 1, 2024) Biden-Harris Administration Announces New Steps to Protect Communities from PFAS and Other Emerging Chemicals of Concern. https://www.epa.gov/newsreleases/biden-harris-administration-announces-new-steps-protect-communities-pfas-and-other

[6] Morgan Lewis (Feb. 1, 2024). EPA Releases List of Known PFAS Chemicals Covered by New Reporting Rules. https://www.morganlewis.com/pubs/2024/02/epa-releases-list-of-known-pfas-chemicals-covered-by-new-reporting-rules