What’s Ahead for PFAS Compliance? Navigating the EPA’s Roadmap to Managing Forever Chemicals
February 5, 2024 | 12 minute read
PFAS Compliance - An Introduction
Managing PFAS has emerged as a key concern for affected industries in recent years. In the US, the Environmental Protection Agency (EPA) has been at the fore-front of this legislation. In this short article we outline some of the key principles you need to be aware of when it comes to managing PFAS.
PFAS Compliance and the EPA
In the past several years, you have felt like you’ve had a crash course in PFAS, the common term used to identify per- and poly-fluoroalkyl substances. Once you read one news article about PFAS - you start to hear about them everywhere. They are in our food, our drinking water, our cleaning products, our clothes, and our personal care products. Deemed an “urgent threat to public health and the environment” by the Environmental Protection Agency (EPA), PFAS is a short acronym for a big problem.
In December 2023, the EPA released the PFAS Strategic Roadmap: Second Annual Progress Report. As noted in the 2023 report, “Addressing the PFAS lifecycle—and how PFAS enter the environment—is central to the EPA’s strategy. Restricting point-source discharges from industrial facilities that use PFAS is a significant opportunity to safely remove PFAS pollution before it enters the environment or wastewater streams. The EPA has taken several steps to use Clean Water Act permitting and regulatory authorities to restrict PFAS—including developing rules under the Effluent Limitations Guidelines program to limit PFAS discharges to waterways from PFAS manufacturers, metal finishers, and landfills.”
The report reviews and highlights significant actions the agency has taken in the past year to restrict, remediate, and research PFAS, as outlined in the PFAS Strategic Roadmap, which was first announced on Oct. 18, 2021, by EPA Administrator Michael S. Regan. The objective of the Roadmap is to “help turn off the tap on industrial polluters,” according to the EPA. The roadmap sets timelines by which the EPA plans to take specific actions and commits to stricter new policies to safeguard public health, protect the environment, and hold polluters accountable.
“This PFAS Roadmap progress report illustrates EPA’s ongoing commitment to protect people from the harmful effects of forever chemicals,” said EPA Administrator Michael S. Regan in a statement. “By combining science-based solutions, historic funding, and impactful regulations, EPA is following through on the vision set out in our Roadmap – to protect people, achieve environmental justice, and improve the lives of hardworking families across America.”
The Roadmap is based on five principles, including:
- Consider the Lifecycle of PFAS – The EPA will account for the full lifecycle of PFAS, their unique properties, the ubiquity of their uses, and the multiple pathways for exposure. (For further information about PFAS, read “Is this the beginning of the end for ‘Forever Chemicals?’”
- Get Upstream of the Problem – The EPA will bring deeper focus to preventing PFAS from entering the environment in the first place—a foundational step to reducing the exposure and potential risks of future PFAS contamination.
- Hold Polluters Accountable – The EPA will seek to hold polluters and other responsible parties accountable for their actions and for PFAS remediation efforts. There is much discussion on who accountable parties are and this will be determined in EPAs rulemaking.
- Ensure Science-Based Decision-Making – The EPA will invest in scientific research to fill gaps in understanding of PFAS, to identify which additional PFAS may pose human health and ecological risks at which exposure levels, and to develop methods to test, measure, remove, and destroy them.
- Prioritize Protection of Disadvantaged Communities – When taking action on PFAS, the EPA will ensure that disadvantaged communities have equitable access to solutions.
So, what actions were taken by the EPA in 2023 related to PFAS, and what are the predictions for 2024 and beyond?
2023: TSCA, TRI, and PFAS
The Toxic Substances Control Act (TSCA) and Toxics Release Inventory (TRI) are tools that the EPA uses to collect information on PFAS used in commerce and to increase transparency so people know how and where these chemicals are being used and released.
Over the last year, the EPA expanded work under the National PFAS Testing Strategy, which the agency announced alongside the Roadmap in October 2021. The Testing Strategy is a major step toward obtaining information about categories of PFAS, which will help accelerate research and innovation and amplify the effectiveness of regulatory and policy solutions to restrict and remediate PFAS. In the past year, the EPA released its second and third orders under the Testing Strategy to require manufacturers to test chemicals used to make plastics and GenX chemicals and anticipates more orders in 2024.
Here are some of the key accomplishments listed by the EPA for 2023:
The EPA released Effluent Guidelines Program Plan 15 (Plan 15), which telegraphed EPA’s determination that revised effluent limitations guidelines and pretreatment standards (ELGs) are warranted for reducing PFAS in leachate discharges from landfills. The recommendation is based on discharge data from over 200 landfills from across the country. The EPA found PFAS present in the landfill leachate at over 95% of the landfills. Sixty-three different PFAS with average concentrations for an individual compound as high as 14,000 parts-per-trillion (ppt) were detected, with the EPA noting that approximately 13.2 million people live within 1 mile of a landfill.
Also in January 2023, the EPA proposed a rule that would prevent anyone from starting or resuming the manufacture or processing of an estimated 300 “inactive” PFAS that have not been made or used for many years without going through a full notice, review, and, if appropriate, risk management process.
The EPA took the first-ever Clean Water Act enforcement action for PFAS discharges at Chemours’ Washington Works facility near Parkersburg, West Virginia. Near military installations with known, significant, PFAS contamination, the EPA is sampling private drinking water wells to assess whether alternative drinking water is needed.
The agency proposed a rule to ensure that new PFAS go through a full safety review process before entering commerce, which would eliminate eligibility for exemptions that had allowed some substances to go through an abbreviated analysis.
The EPA also announced a framework for evaluating PFAS to ensure that new PFAS, or new uses of existing PFAS, do not pose risks to people’s health and the environment before they are approved for use. This framework will distinguish uses that could result in environmental releases—and those with expected human exposures—from those that won’t result in exposures and will require upfront testing for many PFAS.
The agency published a final rule under TSCA that will require all manufacturers and importers of PFAS and PFAS containing articles in any year since 2011 to report information to the EPA on PFAS uses, production volumes, disposal, exposures, and hazards, and the EPA expects to begin making non-confidential data it receives publicly available in 2025.
Also in October 2023, the EPA finalized a rule that eliminated an exemption that allowed facilities to avoid reporting PFAS information to TRI when those chemicals are used in small (or de minimis) concentrations. As stated in the report, “The improved data the EPA will collect will help support informed decision-making by companies, government agencies, non-governmental organizations, and the public.”
The EPA identified approximately 150 PFAS that had been reviewed through the TSCA new chemicals program, but where the protective requirements imposed on the submitters of those chemicals had not yet been extended to all future manufacturers and processors—creating risks for release and exposure.
Where the Roadmap Takes Us in 2024 and Beyond
In September 2022, the EPA proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA/Superfund), which would increase transparency around releases of these chemicals and help hold responsible parties accountable for cleaning up their contamination. The EPA expects to take final action on this rule in early 2024. At the same time, the EPA is developing a CERCLA enforcement discretion policy on PFAS and has held listening sessions with the public and key stakeholders from a variety of sectors to inform the development of this policy.
Last year, the agency announced that addressing exposure to PFAS will be one of its six National Enforcement and Compliance Initiatives for Fiscal Years 2024-2027. The EPA continues to collect information from PFAS manufacturers and users, including federal facilities and continues to ensure federal facilities on the CERCLA National Priorities List are meeting their enforceable Federal Facility Agreement requirements.
In February, EPA proposed new rules that would more clearly define “hazardous waste” and list nine specific PFAS under RCRA regulations.
The proposed new rules announced on February 1, 2024 are separate from several other PFAS-related actions the EPA is expected to take soon. National drinking water standards for certain PFAS substances could be soon finalized as the rule was sent to the Office of Management and Budget in December for review.
“One thing is clear: Americans don’t have to choose between clean air, land, and water or a prosperous, vibrant, and secure nation,” said EPA Assistant Administrator for Water Radhika Fox and co-chair of EPA’s Council on PFAS. “As our whole agency progress clearly illustrates, we are protecting people’s health while catalyzing research and innovation, fueling new markets and jobs, and prioritizing equitable infrastructure and treatment solutions for all people in this country.”
How Aclarity Can Help?
If you are concerned about your potential PFAS exposure, we are very happy to have an initial call in confidence. Issues with PFAS can be wide-ranging and occur in a whole range of different industries. For some a PFAS problem may be a brand new issue that needs urgent attention, for others it will be a case of looking at alternative PFAS management solutions to reflect the changes in how we can manage PFAS safely.
In summary, as we’ve outlined above the EPA has been increasing its focus on PFAS in recent years. The direction of travel is pretty clear - the burden of regulation continues to increase, and indeed is accelerating. However, there are several options that can help with PFAS remediation and the Aclarity team are available to help advise as to some routes that you can consider.
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