EPA Sets Limits On Certain PFAS In Drinking Water And Designates Some As Hazardous Substances Under CERCLA, Posing Vast Challenges For Waste And Other Industries

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On April 10, 2024, the Environmental Protection Agency ("EPA"), under the Safe Drinking Water Act ("SDWA"), issued the final National Primary Drinking Water Regulation...
United States Environment
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On April 10, 2024, the Environmental Protection Agency ("EPA"), under the Safe Drinking Water Act ("SDWA"), issued the final National Primary Drinking Water Regulation ("NPDWR") that sets enforceable limits in drinking water for six per- and poly-fluoroalkyl substances ("PFAS"). See 88 Fed. Reg. 18638. Then, on April 19, 2024, EPA finalized a rule that designates two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). These rules are consistent with EPA's recent regulatory agenda that has called for an increased focus on the regulation of PFAS.The waste industry and others affected should strictly analyze the rules and associated guidance for insight into how they may change operations as these new requirements become effective.

PFAS NPDWR Rulemaking

The NPDWR rule delineates the Maximum Contaminant Level Goals ("MCLGs") and Maximum Contaminant Levels ("MCLs") for six specific PFAS compounds, including perfluorooctanoic acid ("PFOA"), perfluorooctane sulfonic acid ("PFOS"), perfluorononanoic acid ("PFNA"), GenX chemicals: hexafluoropropylene oxide dimer acid ("HFPO-DA"), perfluorohexane sulfonic acid ("PFHxS"), and perfluorobutane sulfonic acid ("PFBS"). MCLGs are health-based goals set at a non-enforceable level. MCLs, however, are legally enforceable standards that are set as close to MCLGs as feasible, taking into consideration the best available treatment technology and costs.

For PFOA and PFOS, EPA set the MCLGs at zero and the MCLs at 4 parts per trillion ("ppt"). For PFNA, HFPO-DA, and PFHxS, EPA set the MCLGs and the MCLs at 10 ppt. For mixtures containing two or more PFNA, HFPO-DA, PFHxS, or PFBS, EPA set the MCLGs and the MCLs at a unitless amount, adopting a hazard index approach that determines if the combined levels of these PFAS in the drinking water pose a potential risk and require action. The finalized rule does not specify an individual MCLG or MCL for PFBS.

The NPDWR rule requires public water systems ("PWS") to comply with the PFAS MCLs five years from the date of the publication of the rule in the Federal Register. Specifically, the rule gives PWS three years to complete initial monitoring for these PFAS. Thereafter, they must provide public notice of the levels and will have two years to implement treatment methods. The NPDWR rule has effects on other waste facility operators as well, which effects include how these operators will approach leachate management and groundwater monitoring efforts. Several landfill operators have already stated that they will be researching and testing various leachate treatment methods in light of the NPDWR rule, including reverse osmosis and foam fractionation technologies.

Waste operators should analyze EPA's updated disposal guidance that offers research showing the types of PFAS found in leachate and the various technologies available for treatment or disposal.

Designation of PFOA and PFOS as CERCLA Hazardous Substances

EPA's rule that designates PFOA and PFOS as CERCLA hazardous substances authorizes it to require potentially responsible parties ("PRPs") to address PFOA and PFOS at contaminated sites by performing adequate cleanup, or by paying damages for such cleanup. EPA also issued an enforcement discretion policy in an effort to alleviate the concerns from certain industries, such as landfills and water entities, who describe themselves as "passive receivers" of PFAS, meaning they do not generate PFAS or have control over PFAS that enters their facilities.

The enforcement discretion policy provides that "EPA will focus on holding responsible entities who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties." EPA, for purposes of the policy, characterizes these parties as "major PRPs." EPA does not, however, "intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, 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, and farms where biosolids are applied to the land." Additionally, "EPA understands that entities are concerned about being sued by other PRPs for PFAS cleanup costs under CERCLA[,]" so it is seeking, in CERCLA settlements with major PRPs, "to require those settling parties to waive their rights to sue parties that satisfy the equitable factors." Thus, "[t]he major PRPs would then not be able to sue those non-settling parties for matters addressed under the settlement."

EPA will exercise its enforcement discretion to not pursue additional entities for PFAS response actions or costs under CERCLA, based on the following factors:

(1) Whether the entity is a state, local, or Tribal government, or works on behalf of or conducts a service that otherwise would be performed by a state, local, or Tribal government.

(2) Whether the entity performs a public service role in:

  • Providing safe drinking water;
  • Handling of municipal solid waste;
  • Treating or managing stormwater or wastewater;
  • Disposing of, arranging for the disposal of, or reactivating pollution control residuals (e.g., municipal biosolids and activated carbon filters);
  • Ensuring beneficial application of products from the wastewater treatment process as a fertilizer substitute or soil conditioner; or
  • Performing emergency fire suppression services.

(3) Whether the entity manufactured PFAS or used PFAS as part of an industrial process.

(4) Whether, and to what degree, the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS.

Possible Impacts to Industrial Facilities

Additional entities may encompass industrial facilities who use PFAS containing materials to fight fires. Consistent with EPA's practice of considering fairness and equitable factors, EPA may forego taking enforcement actions against such facilities by using the factors above to determine that they are not "major PRPs," in that they do not significantly contribute to the release of PFAS by manufacturing it, or using it in manufacturing processes. Indeed, EPA specifically notes in its enforcement discretion policy that fire departments store and use aqueous film forming foam ("AFFF"), which may contain PFAS, to suppress fire emergencies. EPA states that these fire departments must follow all applicable regulations governing the use, storage, handling, and disposal of AFFF that contains PFAS, and that it expects them "to exercise a high standard of care to limit the release of PFAS, minimize and contain releases, and forgo, when possible, the use of AFFF in the process of cleaning equipment and training exercises." Although industrial facilities are not fire departments, they similarly use PFAS containing materials to suppress fire emergencies, and should be mindful of this guidance, along with the factors above, in an attempt to avoid any enforcement action taken by EPA.

Possible Impacts to Waste Industries

While the enforcement discretion policy may alleviate some of the concerns expressed by landfill operators, it falls well short of the protections sought by the industry. Since 2022, waste industries have asked Congress to provide a narrow CERLCA exemption for "passive receivers," and in particular, landfill operators have stated that EPA's designation of PFOA and PFOS as hazardous substances may force them to incur exorbitant costs in inspecting waste for the presence of PFAS (which can be present in a myriad of materials), and processing and/or rejecting waste when PFAS are found. Such costs could present significant burdens to landfill operators even if they escape CERCLA liability, as questions remain as to how PFAS will be handled under other regulatory schemes applicable to landfills (e.g., the National Pollutant Discharge Elimination System permit system). Landfill operators should also note that the enforcement discretion policy mentions only "publicly owned/operated" landfills, which seemingly could create vulnerability for privately owned or operated landfills who nevertheless fulfill vital public duties by serving as safe disposal sites for municipal solid waste. The factors mentioned above, however, may mitigate such vulnerability depending on the specific facts and circumstances.

Without legislation that provides the waste industry the CERCLA exemption it is seeking, the enforcement discretion policy appears to be the best protection afforded to these "passive receivers," meaning the waste industry should strictly analyze the policy to fully understand EPA's approach to enforcing its rule.

Regardless of the potential protection afforded by EPA's enforcement discretion policy, all industries should be on notice that the policy only pertains to EPA's decision not to pursue enforcement action. The enforcement discretion policy does not apply to private parties seeking recovery of costs incurred by them in response to a release of hazardous substances, including PFOA and PFOS.

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.

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