With only a couple of months left in the year, time is winding down for the U.S. EPA’s 2021-2024 PFAS Strategic Roadmap. There are still a few significant actions they could take, but for the most part, recent actions seem to be geared toward “setting the stage” for 2025 and beyond. This month, we highlight a few actions that could lead to future PFAS rules and regulations at both the state and federal levels.
EPA Publishes Final PFAS Aquatic Life Criteria and Benchmarks
On October 7, the U.S. EPA published its Aquatic Life Ambient Water Quality Criteria and Acute Saltwater Aquatic Life Benchmarks for PFOA and PFOS. This rule also established acute freshwater aquatic life benchmarks for eight PFAS: PFBA, PFHxA, PFNA, PFDA, PFBS, PFHxS, 8:2 FTUCA, and 7:3 FTCA.
These criteria and benchmarks are not enforceable limits. Rather, they are intended to guide states and territories as they implement programs, such as National Pollutant Discharge Elimination System (NPDES) permitting. Although the EPA addressed PFAS in NPDES permitting in its 2022 interim guidance to the states, few states have consistently included PFAS. That may be because the interim guidance focused on which test methods to use and what to analyze but did not provide specific water quality recommendations. The aquatic life criteria and benchmarks give states critical targets to consider when issuing wastewater permits for potential PFAS dischargers.
EPA Seeks Public Comment on TSCA Regulatory Actions for PFAS in Plastics
On October 3, the EPA published a request for public comment on its proposal to regulate the manufacture of certain PFAS under the Toxic Substances Control Act (TSCA). These PFAS include PFOA, PFNA, and PFDA formed as a byproduct during the fluorination of high-density polyethylene (HDPE) and other plastic containers.
Specifically, the EPA is looking for more information on:
- The number, location, and uses of fluorinated containers in the United States, including any uses critical to the national economy, national security, or critical infrastructure. The latter includes medical devices.
- Alternatives to the fluorination process that generates PFAS, including PFOA, PFNA, and PFDA.
- Measures to address risks from PFOA, PFNA, and PFDA formed during the fluorination of plastic containers.
This request for public comment is likely to lead to additional TSCA reporting rules for manufacturers of fluorinated plastic containers. Longer-term, the TSCA data could lead to federal and state efforts to regulate fluorinated plastics for use in consumer products, especially food packaging.
Testing Orders Issues for 6:2 FTAc
On October 9, the EPA issued testing orders to five companies for data on 6:2 FTAc, a PFAS compound used to manufacture plastics, resins, textiles, apparel, leather, and other chemicals. These companies may conduct the tests or provide the EPA with existing data they believe satisfies the order requirements. Like the TSCA reporting proposal just mentioned, these orders may have significant ramifications for the plastics industry down the road.
NDAA PFAS Provisions Under Negotiation
Ever since the FY20 National Defense Authorization Act (NDAA) phased out the use of Aqueous Film-Forming Foam (AFFF) at military installations and provided for additional PFAS to be automatically added to the Toxic Release Inventory (TRI) list, subsequent NDAA amendments have also included PFAS. For example, the FY21 NDAA established an interagency task force to address PFAS contamination. FY22 included a broadening of the DOD’s PFAS cleanup strategy and a temporary halt to the incineration of DOD materials containing PFAS. FY23 required that all PFAS added to TRI be designated as "chemicals of special concern."
The next NDAA revisions may be no different. As reported by JDSupra, the U.S. House and Senate have offered multiple bills related to PFAS that may be rolled into the NDAA. These bills focus on three primary areas:
- Accelerating PFAS cleanup at military installations.
- Interim responses to address the release or threatened release of PFAS, including assessing the risk presented by certain installations.
- The creation of Centers of Excellence focused on PFAS research into assessment and remediation.
TRI Reporting Revisited
Last month, we mentioned the EPA’s proposal to add roughly 100 PFAS compounds to the TRI list. Since we just mentioned the NDAA and TRI, it’s worth noting that this proposal also seeks to clarify the events that will trigger the addition of PFAS to the TRI list as authorized under the NDAA.
EPA Claims No Duty to Regulate PFAS in Biosolids
Waste 360 reports that the EPA filed a motion to dismiss a suit filed by the Public Employees for Environmental Responsibility (PEER), claiming that the agency has no fiduciary duty to regulate PFAS in biosolids. In the short term, the outcome of the lawsuit may have an immediate impact mainly on farmers, wastewater treatment operators, and organizations selling biosolids.
Long term, a motion to dismiss should not be taken as an indication that the EPA has no interest in regulating PFAS in biosolids. The ever-evolving NPDES guidelines and the current Information Collection Rule (ICR) proposal suggest otherwise. States have already begun regulating PFAS in biosolids. On the agency’s current trajectory, there’s little doubt the EPA will eventually do so as well. Of course, Congress could significantly accelerate that action with legislation directing them to take certain actions.
Pace® Celebrates Four Years of PFAS Matters
Believe it or not, we started the PFAS Matters blog a little over four years ago. Ironically, one of the triggers was the addition of 172 PFAS to the TRI list – the first PFAS to be added. At that time, we were getting a lot of questions from customers about “testing for the 172.” We thought the best way to help the most clients would be to answer those questions publicly as well as personally.
I hope you’ve enjoyed our posts as much as we’ve enjoyed producing them. Chances are good that we will have plenty of PFAS-related topics to blog about in the coming years, and we’re looking forward to continuing the tradition. As always, if you have a question, concern, or project you’d like to discuss, don’t hesitate to reach out to us.
