As anticipated, 2021 was an eventful year for the regulation of per- and polyfluoroalkyl substances ("PFAS") at the federal level. BCLP has highlighted the key developments in this document, but this is not intended to be a comprehensive list of all of the federal actions with respect to PFAS over the past year.
On October 18, 2021, the Biden-Harris Administration issued a fact sheet discussing its plan to address PFAS substances. Please refer to this publication for additional information.
I. PFAS Strategic Road Map
As discussed in BCLP's Client Alert, the PFAS Strategic Roadmap outlines the approach, goals, and actions that the United States Environmental Protection Agency ("EPA") anticipates taking during the next three years. While published in the latter part of 2021, EPA has already implemented or begun to implement certain aspects of the PFAS Strategic Roadmap, partially summarized below:
- Adopt a National PFAS Testing Strategy. Currently, most PFAS substances have incomplete toxicity data, and as a result, EPA developed a national PFAS testing strategy to require testing of PFAS substances using the Toxic Substances Control Act ("TSCA") authorities.
- Compel PFAS Manufacturers to Conduct and Fund Studies. In accordance with the testing strategy, EPA granted a petition to compel manufacturing companies to conduct and fund the testing of certain PFAS substances. Additional phases of testing are expected in the future.
- The Fifth Unregulated Contaminant Monitoring Rule ("UCMR 5"). EPA requires public water systems to conduct sampling for unregulated contaminants every five years. UCMR 5 requires sample collection for 30 chemicals to be conducted between 2023 and 2025. Prior to the UCMR 5 development, EPA collected data for only six PFAS substances in this program. Additional information addressing this issue can be found at EPA's website.
- Toxicity Assessments. EPA published the toxicity assessments for PFBS and GenX (also known as HFPO-DA). EPA expects to develop non-enforceable and non-regulatory drinking water health advisories for PFBS and GenX chemicals in the spring of 2022. Moreover, the Office of Research and Development is currently developing toxicity assessments for five additional PFAS substances (PFBA, PFHxA, PFHxS, PFNA, and PFDA).
II. Infrastructure Bill
On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act ("IIJA") that specifically allocates $10 billion for emerging contaminants, including PFAS contamination in drinking water.
As summarized in an EPA publication, the $10 billion is divided in the IIJA as follows:
- $5 Billion: Funding for small and disadvantaged communities to address PFAS in drinking water through the use of point-of-entry or point-of-use filters and filtration systems;
- $4 Billion: Funding available to public water systems to remove PFAS from drinking water supplies; and
- $1 Billion: Funding available for community water quality infrastructure projects through the Clean Water State Revolving Fund to address emerging contaminants.
III. PFAS Action Act of 2021
In conjunction with PFAS-related actions taken by the Biden-Harris Administration, the House of Representatives passed the PFAS Action Act of 2021 on July 21, 2021, which is currently before the Senate. The following aspects are some of the principal provisions of the PFAS Action Act of 2021, as passed by the House:
- Air Emissions. EPA will designate PFOA and PFOS as "hazardous air pollutants" pursuant to the Clean Air Act within 180 days;
- Discharge Regulations. Create effluent limitations guidelines and standards for listed priority industry categories (e.g., textiles, electroplating, paint formulating, electrical and electronic components) of measurable discharges of PFAS substances within four years;
- Hazardous Substances. Designate PFOA and PFOS as a "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") within one year. EPA will also determine if all PFAS substances should be classified as "hazardous substances" within five years;
- Labeling. Create a voluntary label that is available to be used by manufacturers of covered products within one year that EPA determines does not contain any PFAS substances. Notably, covered products include, among other things, pots, pans, carpets, rugs, clothing, luggage, food packaging materials, and cleaning products;
- National Drinking Water Standards. EPA will establish drinking water standards for perfluorooctanoic acid ("PFOA") and perfluorooctane acid ("PFOS") within two years; and
- Testing. Require testing of all PFAS substances for toxicity to human health under TSCA within two years.
Importantly, EPA has addressed many of these issues in the PFAS Strategic Roadmap, published only three months after the PFAS Action Act of 2021 passed the House of Representatives. BCLP will continue to monitor developments as this legislation is addressed by the Senate.
IV. Miscellaneous PFAS Actions
There are a sizeable number of PFAS actions that influence national policy, and these actions are largely administered by numerous federal agencies. The following is a brief summary of these activities:
- Consumer Products. The Biden-Harris Administration declared that it will prioritize the purchase of " sustainable products," defining these products as ones that do not contain PFAS materials.
- Department of Defense. The Department of Defense ("DoD") has initiated new PFAS testing methods, has held discussions with stakeholders, and has managed a series of public outreach presentations.
- Food and Drug Administration. The Food and Drug Administration ("FDA") conducted several tests involving PFAS in various foods, notably in seafood. Additionally, the FDA also published related technical and analytical studies.
- NDAA. The National Defense Authorization Act for Fiscal Year 2022 ("NDAA") was signed into law on December 27, 2021. The PFAS provisions include, among other things, creating a PFAS Task Force, testing most military facilities for known releases of PFAS materials, prohibiting the incineration of PFAS substances, and increasing funding for PFAS remediation at sites owned by the DoD.
- PFAS Council. EPA Administrator Michael Regan created a new EPA Council for PFAS. According to EPA's press release, the Council "is charged with building on the agency's ongoing work to better understand and ultimately reduce the potential risks caused by these chemicals."
- Preliminary Program Plan 15. EPA has proposed revising the Effluent Limitation Guidelines to address PFAS discharges for two industries: (1) the organic chemicals, plastics and synthetic fibers industry; and (2) the metal finishing industry. EPA is proposing information gathering from the pulp, paper, and paperboard industry as well as from textile and carpet manufacturers. For additional information, please refer to BCLP's Client Alert regarding this topic.
- RCRA. Two actions have been initiated pursuant to the Resource Conservation and Recovery Act ("RCRA"): (1) four PFAS substances were listed as "hazardous constituents;" and (2) the RCRA Correction Action Program regulations were updated and clarified. BCLP provides more detailed information in this Client Alert.
- TRI. The Toxics Release Inventory ("TRI") released data that contains information regarding PFAS substances, and three PFAS substances were added to the TRI. For more information, please refer to BCLP's Client Alert on this topic.
- TSCA. EPA proposed a new PFAS reporting requirement under TSCA. If finalized, manufacturers, including importers, would be required to report all products containing PFAS compounds during any time period beginning on January 1, 2011. For details regarding this requirement, please refer to BCLP's Client Alert.
2021 has been an active year for federal developments regarding PFAS substances. BCLP will continue to monitor and report on PFAS-related government action at both the federal and state levels in what is expected to be an active 2022 for PFAS issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.