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February 26, 2021

Eight Important Updates About Recent PFAS Regulatory Developments

Advisory

In the months since our 2020 update on federal actions affecting per- and polyfluoroalkyl substances (PFAS), the Environmental Protection Agency (EPA) has continued to take action on its PFAS Action Plan. In addition, the Biden-Harris Administration has made addressing PFAS a top priority. Congressional Democrats simultaneously will be looking to increase attention on addressing PFAS contamination. The following highlights the top eight developments since our last PFAS update and briefly explains what you need to know about each, while taking a look at the regulatory future.

PFOA and PFOS Drinking Water Regulations Back On and Only the Beginning

In the final days of the Trump Administration, EPA issued final determinations to regulate PFOA and PFOS in drinking water under the Safe Drinking Water Act (SDWA), a process the Agency started in 2018. While the regulatory freeze pursuant to a memo from White House Chief of Staff Ronald Klain momentarily paused the issuance of those final determinations, EPA announced on February 22, 2021 that it is moving forward. Regulatory determinations under SDWA trigger EPA's process for developing national primary drinking water regulations (NPDWRs), which are enforceable drinking water standards in contrast to the health advisories EPA established for PFOA and PFOS in 2016. Per statutory timelines, EPA could take up to four years to finalize NPDWRs for PFOA and PFOS, during which time the Agency is sure to consider regulatory determinations for other PFAS (or even PFAS as a class).

The decision to move forward comes after Klain issued a memo on January 20, 2021 directing agencies to halt publication of rules in the Federal Register until they can be reviewed and approved by a Presidential appointee or their designee. The memo effectively applies to rules issued late in the Trump Administration—so-called midnight rules—and gives the Biden-Harris arrivals time to reconsider the underlying policies. In response to this pause, which froze the PFOA and PFOS regulatory determinations under SDWA, Sen. Shelley Moore Capito (R-WV), the ranking member of the Senate Environment and Public Works Committee, sent a letter to Klain on February 17, 2021, requesting EPA publish the final determinations. A few days later, the Agency announced it will advance the regulatory determinations and a proposal to require national drinking water monitoring for 29 other PFAS, another Trump-era regulatory action that was under a court-ordered deadline.

EPA is unlikely to stop with drinking water regulations for PFOA and PFOS. EPA Administrator nominee, Michael Regan, publicly committed to pursuing "water-quality values" during his confirmation hearing, and many congressional Democrats have pushed EPA to approach PFAS more aggressively. Specifically, Regan pledged to pursue "all avenues that we can while we are developing . . . rulemaking processes to give the proper signals," including setting discharge limits and water-quality values.

Stakeholders will want to pay particular attention to the next Unregulated Contaminant Monitoring Rule (UCMR) and Contaminant Candidate List (CCL), both of which play a role in which drinking water contaminants EPA will consider for NPDWRs. EPA reissued the proposed UCMR 5 on February 22, which was first issued during the Trump Administration and requires sample collection for 29 PFAS between 2023 and 2025. In addition, EPA requested nominations for the next CCL in 2018 but has not published the final.

Biden Backed Congressional Action to Designate PFAS as Hazardous Substances

On the campaign trail, President Biden pledged to "tackle PFAS pollution by designating PFAS as a hazardous substance," which aligns with the bipartisan PFAS Action Act (H.R. 535 – 116th) that passed the US House in January 2020. Designating PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) would jumpstart the identification and remedial investigation of sites impacted by PFAS. The designation would also trigger CERCLA's reporting requirements for releases of PFAS at greater than a threshold level, leading to potential investigation and cleanup. Importantly, CERCLA allows EPA to recover cleanup costs from potentially responsible parties.

During the Trump Administration, EPA included designating PFOA and PFOS as hazardous substances in its PFAS Action Plan. However, just days before President Biden's inauguration, EPA issued a prepublication edition of an ANPRM to get public comment and data to help the Agency consider whether it should still take this step. The Agency explained, "in light of EPA's success and experience in addressing PFAS in drinking water at levels above EPA's current health advisory," the Agency was reconsidering whether it should take any additional regulatory steps, including designating PFOA and PFOS as hazardous substances under CERCLA. The ANPRM remains embargoed pending review by the Biden-Harris team. Ultimately, as discussed above, Biden's EPA is expected to pursue hazardous substance designations for at least PFOA and PFOS, and to consider the same for other PFAS.

Biden-Harris Administration Policy on Scientific Independence Now Front and Center Following PFBS Controversy

On January 15, 2021, EPA released a toxicity assessment for perfluorobutane sulfonic acid (PFBS). After President Biden issued a Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, the Biden-Harris EPA pulled the PFBS assessment on February 9 because its conclusions "were compromised by political interference as well as infringement of authorship and the scientific independence of the authors' conclusions." Senior EPA career scientist Dr. Jennifer Orme-Zavaleta, who is currently the Acting Assistant Administrator for the Office of Research and Development and the agency's Acting Science Advisor, explained that issuing the assessment with "conclusions purporting to reflect science when in fact they are the product of biased political interference undermines the agency's scientific integrity policy and erodes the trust that the American public has in EPA, the quality of our science, and our ability to protect their health and the environment." The Agency will continue to review the PFBS assessment while it remains off EPA's website.

EPA Will Turn Attention to Discharge Limits of PFAS

During Regan's confirmation hearing, he committed to pursuing "discharge limits" for PFAS, likely referring to point source discharges of the chemical substances into "waters of the United States." The Clean Water Act (CWA) prohibits point source discharges of certain pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. EPA has not yet regulated PFAS under the CWA, despite interest from members of Congress in doing so.

In the final months of the Trump Administration, an EPA workgroup released a memorandum recommending an interim strategy to address point source discharges of PFAS in EPA-issued NPDES permits. The workgroup, which was comprised of EPA Headquarters and Regional contacts, recommended: (1) including permit requirements for phased-in monitoring and best management practices taking into consideration when PFAS are expected to be present in point source wastewater discharges; (2) including permit requirements for phased-in monitoring and stormwater pollutant control taking into consideration when PFAS are expected to be present in stormwater discharges; (3) sharing information on permitting practices; and (4) developing a permitting compendium. Under the direction of Regan, EPA likely will use the workgroup's memo as a starting point for developing a CWA framework for regulating PFAS discharges.

EPA Will Continue Work on PFAS Disposal and Destruction

On December 18, 2020, EPA released for public comment new interim guidance on destroying and disposing certain PFAS and PFAS-containing materials from non-consumer products. The guidance is in response to the FY 2020 National Defense Authorization Act's (NDAA) mandate that EPA publish guidance on destroying and disposing of materials containing PFAS. Per the NDAA, EPA will review the interim guidance at least every three years and revise if appropriate. Comments were due on the interim guidance on February 22, 2021, and the Agency received over 5,000 comments.

The interim guidance addresses destruction and disposal of PFAS, including aqueous film forming foams; soil and biosolids; textiles, other than consumer goods, treated with PFAS; spent filters, membranes, resins, granular carbon, and other waste from water treatment; landfill leachate containing PFAS; and solid, liquid, or gas waste streams containing PFAS from facilities manufacturing or using PFAS. It focuses on three destruction and disposal technologies: thermal treatment, landfilling, and underground injection. EPA's interim guidance finds the following "to have the greatest potential within each category to control migration of PFAS to the environment if used to destroy or dispose of PFAS-containing materials": hazardous waste combustion technologies (commercial incinerators, cement kilns, lightweight aggregate kilns); hazardous waste or municipal solid waste landfills; and Class I deep well injection. The Biden-Harris Administration has not announced plans to revise this guidance, but stakeholders will want to keep an eye on this policy, and other disposal-related efforts, once Regan is confirmed.

Expect EPA to Expand Efforts to Use TSCA to Test and Regulate PFAS

The EPA issued final guidance on January 19, 2021 concerning interpretation of certain aspects of its final Significant New Use Rule (SNUR) for Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemical Substances (LCPFAC or long-chain PFAS). EPA originally issued the SNUR under the Toxic Substances Control Act (TSCA) during the summer of 2020. The SNUR generally prohibits companies from manufacturing, importing, processing, or using certain long-chain PFAS without prior EPA review and approval.

TSCA authorizes EPA not only to restrict new and existing uses of chemical substances but to issue regulations calling in existing studies and to order chemical manufacturers and processors to perform new testing on chemical substances. Expect additional efforts from the new team at EPA to use TSCA to gather data on and regulate uses of PFAS.

Congress Is Certainly Not Done With PFAS

Congress is expected to continue its efforts to address PFAS, especially given President Biden's commitment to tackling the issue. The 116th Congress enacted numerous PFAS-related provisions, mostly through the NDAA to address military uses and impacts of PFAS, and to prompt certain EPA actions. The House passed a comprehensive bill, the PFAS Action Act, in January 2020, but the legislation stalled in the Senate. With a new Democratic-majority Congress, and President Biden in the White House, members of Congress may initiate additional legislation addressing PFAS. In fact, Rep. Debbie Dingell (D-MI) announced in November 2020 her intention to re-introduce the PFAS Action Act in the new Congress.

In addition to legislation, members of Congress will continue to urge the administration to take action. For example, the Congressional PFAS Task Force, which is led by Reps. Dan Kildee (D-MI) and Brian Fitzpatrick (R-PA), sent a letter to President Biden on January 29, 2021, urging the administration to take several steps to address PFAS, including finalizing a national drinking water standard for PFOA and PFOS and restricting industrial releases of PFAS under the Clean Air Act and Clean Water Act. This bipartisan Task Force is expected to continue its work in the 117th Congress, pushing for legislative and executive action to address PFAS.

Not Just the Federal Government—States Continue to Take on PFAS

While this update focuses on federal activity, stakeholders will need to keep their eyes on state-initiated regulatory activity, as well. Without definitive federal mandates related to PFAS, states have taken the lead on certain issues. For example, as mentioned earlier, drinking water standards for PFAS are a major issue at the federal level. In the last several years, states, such as Michigan and New Jersey, adopted regulations setting PFAS limits for drinking water in the absence of federally enforceable limits. Other states, such as Washington, have restricted the use of PFAS chemicals in firefighting foam. In addition, as the conversation continues over whether to address PFAS as a class or as individual substances, Minnesota released its PFAS Blueprint in February 2021 calling for designating the entire class of PFAS as a "hazardous substance" in state law, and the Toxics in Packaging Clearinghouse, which is made up of nine states including California, recently updated its model legislation to ban PFAS as a unified class in product packaging. These trends are expected to continue. We intend to prepare future updates evaluating such actions.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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