PFAS – Regulation is upon us


Recent Regulatory Steps

On January 14, 2021, on the eve of President Biden’s inauguration, EPA issued an advance notice of proposed rulemaking, seeking comment on whether PFOA and PFOS should be regulated under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). This will likely lead to the designation of PFOA and PFOS as “Hazardous Substances” under CERCLA and RCRA. Such a designation will likely lead to EPA and the state agencies taking more aggressive action to investigate and identify new sites where PFAS may be a concern and also to review the status of existing sites where PFAS may be a concern that was not addressed in previous investigations or response actions and to potentially pursue response actions at such sites. At this moment though there is only the interim policy that EPA provided to assist in addressing PFOA and PFOS groundwater contamination. The comment period on this advance notice just closed and we anticipate a proposed rulemaking in the near future.

Next, EPA reissued the final regulatory determinations for PFOA and PFOS under the Safe Drinking Water Act (SDWA), which was published in the Federal Register on March 3, 2021. This determination will begin the process to label both PFOA and PFOS as hazardous substances under the SDWA and will allow EPA to set Maximum Contaminant Levels (“MCL”) for both compounds. This process usually takes approximately two years and will allow EPA to eventually propose a national drinking water standard for both PFOA and PFOS. This will also allow EPA to require cleanup of some PFOA and PFOS where it is found in potential drinking water sources. The current suggested maximum concentration is 70 parts per trillion (ppt) for both compounds based on EPA guidance.

Lastly, on March 11, 2021, EPA published the proposed fifth Unregulated Contaminant Monitoring Rule, which requires data to be collected regarding the presence of 29 PFAS compounds in drinking water. The proposal seeks 12 months of data collected by various public water systems from January 2023 and December 2025. EPA will be holding two virtual stakeholder meetings on April 6, 2021 and April 7, 2021, and the comment period will be open for 60 days.

In addition to the regulatory steps that EPA has taken, Michael Regan’s recent confirmation as Administrator of the EPA is likely to further accelerate PFAS regulations. A former secretary of the North Carolina Department of Environmental Quality (NC DEQ), Regan is no stranger to PFAS. Regan was the secretary of the NC DEQ when it sued Chemours for allegedly discharging PFAS into the Cape Fear River in eastern North Carolina. Regan’s prior experiences with PFAS, coupled with the Biden Administration’s commitment to prioritizing PFAS, will likely result in new regulations sooner rather than later

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Mondaq, 12 May 2021