We’ve rounded the halfway point in 2023 and are well into the third quarter of the year. Regulatorily speaking, summer is often a slow time of year. Still, there are quite a few actions worth noting before we enter the busy fall season.

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EPA Sets Timeline for Removal of de Minimus Exemption

In July, the United States Environmental Protection Agency (EPA) sent a long-awaited notice of intent to the OMB (Office of Management and Budget) regarding its plan to eliminate the de minimus reporting exemption under the Toxic Release Inventory (TRI) program. Currently, this exemption eliminates the reporting requirements for any company discharging less than 100 pounds of TRI-listed chemicals, including the 189 PFAS currently covered by TRI. Once the EPA sends the plan to the OMB, the OMB will need to assess the financial impact of the plan. The OMB’s assessment could impact the timeline, but the EPA intends to have the review process complete and a final rule promulgated by November 30, 2023.

PFAS Included in EPA Enforcement Priorities

The EPA has identified “addressing exposure to PFAS” as one of its top three enforcement priorities for 2023-2027. The details included implementing the PFAS Strategic Roadmap and holding those parties responsible for releasing PFAS into the environment accountable.

First Set of UCMR 5 Data Available

In 2023, Public Water Systems (PWS) serving 10,000 customers or more plus 800 randomly selected small systems were scheduled to begin testing for 29 PFAS plus lithium. The EPA has now publicly released the first set of occurrence data.

PFOA and PFOS are two of the most widely studied PFAS. One or both of these PFAS were measured at or above the EPA’s minimum reporting level (MRL) and, therefore, above the EPA’s Health Advisory (HA) levels for 7.8-8.5% of PWSs in the first sampling event. However, the EPA’s data suggests that any detectable concentration of PFOA or PFOS is considered unsafe. HFPO-DA (GenX) was found in only one PWS above its health advisory level, and PFBS was not found above its health advisory level in any of the systems reporting.

EPA Rescinds Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS

As reported by the ASDWA (Association of State Drinking Water Administrators), the EPA has published a Notice of Rescinded Guidance for its 2019 memorandum “Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctanesulfonate.” The EPA rescinded the memo because it no longer reflects the best, currently available science. The rescission will allow CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) and RCRA (Resource Conservation and Recovery Act) site managers to investigate contaminated groundwater at levels below the previous screening level of 40 ppt and preliminary remediation goal of 70 ppt for PFOA and PFOS in sources (or potential sources) of drinking water.

EPA Issues New Test Order for PFAS

Under the auspices of the Toxic Substances Control Act (TSCA) the EPA is authorized to order chemical manufacturers to conduct toxicity analysis and/or turn over all existing data on certain chemicals. On August 15, the EPA ordered three manufacturers to conduct and submit testing on 2,3,3,3-Tetrafluoro-2-(heptafluoropropoxy)propanoyl fluoride (HFPO-DAF). HFPO-DAF is used to make the chemical HFPO-DA, frequently referred to as GenX, a compound widely used as a replacement for PFOA.

NRWA Wins Nearly $1.2B Settlement to Help Small and Rural Water Systems Cover PFAS Costs

The National Rural Water Systems Association (NRWA) recently settled for nearly $1.2B with several producers of PFAS. The association will use these funds to help small and rural water systems participating in the NRWA PFAS Cost Recovery Program cover the cost of PFAS testing, treatment, and remediation. The program is still open for new registrants. Contact us for the PFAS laboratory services needed to support your system’s analysis requirements.

CERCLA Expansion Comment Period Closed

Though it has yet to do so, the EPA signaled its intent to designate PFOA and PFOS as hazardous substances under CERCLA in early 2022. Then, in March of 2023, the OMB approved an additional EPA request to consider designating PFAS, as a class or subclass, hazardous under CERCLA. In a scaled-back version of that request, the EPA issued an APNRM (Advance Notice of Proposed Rulemaking), which would add seven additional PFAS to the CERCLA list of hazardous substances: PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and PFDA. The EPA has also suggested listing precursors to PFOA, PFOS, and the seven listed PFAS compounds. On August 11, the public comment period for the CERCLA expansion closed, clearing one more hurdle to implementation.

DOD PFAS Task Force Releases 3 Significant Guidance Documents

In early July, the DOD (Department of Defense) PFAS Task Force issued three guidance documents that may have a significant impact on the military’s efforts to address PFAS contamination stemming from military activities and installations:

• Interim Guidance on the Destruction or Disposal of Materials Containing PFAS
• Interim Actions to Address Per- and Polyfluoroalkyl Substances Migration from DOD Installations and National Guard Facilities
• Sampling of PFAS in DOD-Owned Drinking Water Systems

Draft IRIS (Integrated Risk Information System) Tox Assessment for PFHxS Ready for Public Comment

The EPA’s IRIS toxicologic assessments are an important step toward understanding and effectively regulating specific PFAS compounds. On July 25, the EPA announced that the toxicological assessment for Perfluorohexanesulfonic Acid (PFHxS) and its related salts is now ready for public comment. PFHxS has been used to promote water- and stain-resistance in a variety of consumer products, such as carpets, food packaging, textiles, and electronics. It is also used as a surfactant in industry and in the aqueous film-forming foam (AFFF) used for fire suppression.

Is Kale Bad for You?

Finally, if kale’s not your thing, here’s news you can use as you argue with friends and family who think the bitter green vegetable is the cornerstone to health and longevity. A recent study found detectable PFAS in seven out of eight kale samples purchased from different grocery stores across the country. Now, for those of you who happen to like kale, it may be premature to clean out your fridge. Critics say the new study was too small to draw any real conclusions, and a much larger study in 2020 found 97% of the 700+ samples tested to be PFAS-free. At the end of the day, kale is a divisive enough topic as it is. We’ll wait for more data before we add PFAS to the argument for or against.