PFAS Regulation – New Developments
Background
PFAS includes multiple substances. These substances do not easily break down in the environment, and thus are sometimes referred to as ‘forever chemicals.’ The use of these substances is widespread and industrial applications and consumer products include clothing, food packaging, carpet and firefighting foam. While useful, exposure to or presence of PFAS can result in health risks and/or environmental risks. EPA established a Strategic Roadmap, in October 2021, to study PFAS and regulate these risks. EPA has recently issued 2 major regulations covering PFAS.
Drinking Water Standards
On April 10, 2024, EPA issued a final rule regulating PFAS in drinking water. The rule covers 6 PFAS substances. The rule applies to public drinking water supplies. These include municipal systems, but other systems as well. The rule sets maximum contaminant levels (MCLs), which are standards that must be met, and maximum contaminant level goals (MCLGs), which are goals that aim to set a contaminant threshold level with no known health risk. Below are the MCLs and MCLGs for these PFAS substances.
|
PFAS Substances |
MCLGs |
MCLs |
|
PFOA |
Zero |
4.0 parts per trillion (ppt) (also expressed as ng/L) |
|
PFOS |
Zero |
4.0 ppt |
|
PFHxS |
10 ppt |
10 ppt |
|
PFNA |
10 ppt |
10 ppt |
|
HFPO-DA (commonly known as GenX Chemicals) |
10 ppt |
10 ppt |
|
Mixtures containing two or more of PFHxS, PFNA, HFPO-DA, and PFBS |
1 (unitless) Hazard Index (a formula) |
1 (unitless) Hazard Index |
ppt – part per trillion
Public water supplies will have to comply with the following requirements under the new rule:
- Initial monitoring for the PFAS substances must be done within 3 years, and that will be followed by compliance monitoring. In addition the public water supplies must provide their users with information on monitoring results starting in 3 years.
- Public water supplies have 5 years to implement solutions that reduce these PFAS substances, if monitoring shows that MCLs are exceeded
Superfund – Hazardous Substances
On April 19, 2024, EPA issued a final rule designating 2 types of PFAS as hazardous substances. PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid) were designated as hazardous substances. PFOA and PFOS are 2 of the most common types of PFAS. This is the first time that EPA has used its authority to directly designate substances as hazardous substances. These substances have been designated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also referred to as Superfund). Superfund is a federal law that is used to clean up contaminated sites.
For sites contaminated by PFOA or PFAS, this designation means that Superfund’s full provisions for investigation and cleanup are available to EPA and to private parties.
Also, the rule requires releases of these 2 substances to be reported, to Federal, State and local authorities, if the reportable quantity of 1 lb is exceeded within 24 hours. In addition, the rule requires DOT to regulate these 2 substances as hazardous materials under the Hazardous Materials Transportation Act.
In conjunction with the new rule, EPA announced that it would exercise enforcement discretion for certain parties that are associated with sites contaminated with PFOA or PFOS. These parties are as follows:
- Community water systems and publicly owned treatment works
- Municipal separate storm sewer systems
- Publicly owned/operated municipal solid waste landfills
- Publicly owned airports and local fire departments
- Farms where biosolids are applied to the land
This enforcement discretion is contingent upon parties meeting certain requirements, including cooperating with EPA. The cooperation is to include the parties providing access and information when requested from the EPA, and not interfering with investigation or cleanup actions that EPA is taking or directing others to undertake.
This designation will also have other impacts. For example, PFOA and PFOS will be taken into account when conducting Phase 1s for real estate transactions. Also, disposal of materials/products that have PFOA or PFOS will be impacted.
Summary
EPA has taken 2 major steps forward in PFAS regulation with these new rules.
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