On October 18, 2021, the U.S. Environmental Protection Agency (EPA) announced a per- and polyfluoroalkyl substances (PFAS) Strategic Roadmap (the Roadmap) detailing steps that the EPA plans to take to address PFAS contamination. PFAS are largely unregulated, but studies linking certain PFAS to health issues and their persistence in the environment and human body are driving the push for increased regulation. Currently, the EPA has established only a non-enforceable health advisory level for two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Additionally, some states have been moving forward at different speeds to establish state-specific PFAS regulations, including drinking water standards and cleanup levels for soil and groundwater remediation. However, the EPA’s Roadmap suggests increased federal regulation looms.
The EPA’s approach under the Roadmap considers the lifecycle of PFAS, focusing not only on remediating PFAS-contaminated sites and regulating PFAS discharges or emissions, but also regulating PFAS at the upstream level where they are produced and incorporated into products. Other areas of focus called out in the Roadmap include (1) an emphasis on enforcement actions at PFAS-contaminated sites and placing responsibilities for limiting exposure on manufacturers, processors, distributors, and similar users; (2) research into PFAS over health effects and remediation technologies; and (3) an environmental justice focus on prioritization of PFAS effects on disadvantaged communities.
The Roadmap outlines key actions and timeframes by EPA office, including an assortment of proposed regulatory actions, data collection and studies, and public involvement initiatives. While not a comprehensive list, several key actions indicating increased regulatory scrutiny are listed below.
|Office of Water||Establish the first national primary drinking water regulation for PFOA and PFOS.
|Restrict PFAS discharges through effluent limitation guidelines on certain industrial categories. Monitor industrial categories where phase-out of PFAS is projected by 2024.
|Expected 2022 and ongoing|
|Utilize National Pollutant Discharge Elimination System (NPDES) program to reduce PFAS discharges in wastewater and stormwater by imposing certain PFAS-related permitting conditions and analytical methods.
|Publish ambient water quality criteria for PFAS, which tribes and states use to develop water quality standards to protect waters, issue permits, and assess cumulative impacts of PFAS contamination on local communities.||Winter 2022 and fall 2024|
|Office of Chemical Safety and Pollution Prevention
|Tighten Toxic Substances Control Act (TSCA) new chemicals review authority for new PFAS by denying pending and future low-volume exemptions sought for PFAS; pre-manufacture notice review process for new PFAS.
|Review previous TSCA new chemicals program decisions on PFAS to determine whether those decisions are insufficiently protective.
|Develop a national PFAS testing strategy to develop data that will help the EPA select PFAS for required testing under its TSCA authorities.
|Propose new rulemaking to categorize PFAS on the Toxic Release Inventory (TRI) list as “Chemicals of Special Concern” and remove the de minimis eligibility from supplier notification requirements for all “Chemicals of Special Concern.” Continue updating the TRI list to include more PFAS.
|Consider using significant new use authority under TSCA to regulate abandoned PFAS or uses. This authority would trigger notice and risk determination requirements prior to resuming manufacture or abandoned uses.||Summer 2022|
|Office of Land and Emergency Management||Designate PFOA and PFOS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances and consider designating others.||Spring 2022 and summer 2023|
|Office of Air and Radiation||Conduct research to identify sources of PFAS air emissions, develop monitoring approaches, and understand the fate and transport of PFAS in air emissions. The EPA plans to evaluate whether to list PFAS as hazardous air pollutants under the Clean Air Act.||Fall 2022 and ongoing|
|Cross Programs||Focus on Resource Conservation and Recovery Act, TSCA, Clean Water Act, Safe Drinking Water Act, and CERCLA authorities to identify past and ongoing releases of PFAS into the environment, including conducting inspections, issuing information requests, and collecting data.
|Implement a PFAS stewardship program challenging industry to reduce overall releases of PFAS into the environment.||Spring 2022|
While some of these proposed actions have already been published in the form of proposed rulemakings, draft reports, and other documentation, other key actions are pending over the next several years. The EPA will publish information related to these updates on a rolling basis as the timeframes in the Roadmap are only estimates. It is likely some of the rulemakings will be the subject of legal challenges or other delays. While the Roadmap is a good resource for industry to understand upcoming regulatory risks and liabilities, closely tracking the proposed key actions through the regulatory process will be essential to predict the final outcomes of federal PFAS regulation.
Reed Smith is actively tracking PFAS developments nationwide and at the state level. Please be sure to register for the upcoming webinar: PFAS: due diligence and risk assessment in real estate transactions.
Please contact our EHS team with any questions you may have.