Feb. 2, 2024 - Happy New Year! As we step into 2024, it’s tempting to look back at 2023 and call it the “Year of PFAS.” After all, a lot happened in the last twelve months. Here are just a few of the actions worth noting:
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Thousands of public water systems across the country began testing drinking water samples for 29 PFAS under the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5).
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The U.S. Environmental Protection Agency (EPA) proposed the 1st ever enforceable limits for PFAS in drinking water.
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The EPA proposed designating certain PFAS (PFOA and PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
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The EPA removed de minimus reporting exemptions under the Toxic Release Inventory (TRI) and Toxic Substances Control Act (TSCA).
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States passed or proposed a variety of new PFAS regulations, including limits on PFAS in consumer goods such as food packaging, cosmetics, and carpeting.
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In Colorado, Maryland, and Minnesota, previously enacted limits and bans on intentionally added PFAS in certain consumer products went into effect on January 1, 2024.
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The EPA published PFAS Analytical Tools, a compiled and integrated collection of data regarding the manufacture, release, and occurrence of PFAS in communities.
Despite this flurry of activity, there’s an excellent chance that 2024 will be the most active year for PFAS yet. While it can be difficult to predict exactly what will happen in the year ahead, we wanted to take stock of what might happen to help our clients prepare. To make these predictions more actionable, we’ve divided them into three categories: those actions we’re almost certain to see, those we’re likely to see, and those we could see in 2024.
4 PFAS Actions We Expect to See in 2024
This first category includes those actions we’re almost certain to see in 2024. In fact, we wouldn’t be surprised if most of them take place in the first quarter. That said, while these actions are the most predictable, the final details could contain some surprises.
#1 The National Primary Drinking Water Regulations (NPDWR) for PFAS will be finalized. The EPA’s date for finalizing Maximum Contaminant Levels (MCLs) for PFAS in drinking water has been a moving target. The EPA’s Second Annual Progress Report, published in December of 2023, the agency states that they anticipate finalizing this rule in early 2024. The statutory deadline for this rule is September 2024.
Still, a few questions remain: Will the final rule include all six PFAS in the draft ruling? Will the levels be the same as proposed? Will the hazard index (HI) continue to be used for PFHxS, HFPO-DA (GenX), PFNA, and PFBS? The agency has received significant pushback on some aspects of the proposed rule, so the first-ever MCLs for PFAS in drinking water could be scaled back a bit. Or they might not be.
#2 PFAS will be designated hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The EPA anticipates publishing this final rule in March. However, as with the NPDWR, questions remain. Most notably for our customers, whether the rule will impact passive receivers of PFAS or allow them an exemption. In April 2023, the EPA published an ANPRM (Advanced Notice of Proposed Rulemaking) that proposed designating seven PFAS (PFBS, PFHxS, PFNA, GenX, PFBA, PFHxA, PFDA) plus PFOA and PFOS precursors as hazardous substances. However, it’s doubtful the agency will take action on these PFAS when they publish the final rule on PFOA and PFOS.
Update: On February 1, the EPA announced two new rules to address PFAS environmental contamination. The first proposal would designate 9 PFAS as hazardous compounds under the Resource Recovery and Conservation Act (RCRA). The PFAS to be listed include PFOA, PFOS, PFBS, HFPO-DA, PFNA, PFHxS, PFDA, PFHxA, and PFBA. The second proposal seeks to amend the definition of hazardous waste under RCRA to give the EPA the authority to require corrective action, not only of substances identified as hazardous waste in the regulations but also of any substance that meets the statutory definition of hazardous waste.
While designating a substance hazardous under RCRA does not automatically confer the same designation under CERCLA, this proposal could indicate a possible future direction for a CERCLA ruling. For that reason, we thought it worth mentioning.
#3 Draft Method 1633 will be finalized. Currently on Draft 4, Draft Method 1633 has been considered “final” for non-potable liquids (except leachate) since Draft 3. In fact, it is already the recommended method for National Pollutant Discharge Elimination System (NPDES) permitting. In addition, the Department of Defense (DOD) mandated Draft Method 1633 for projects not involving drinking water compliance.
Pace® has been deeply invested in Draft Method 1633 since the beginning, so we’ve been watching this one closely. The final version of Draft Method 1633 is expected to cover all eight environmental matrices (wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue). The EPA has said they expect to publish the final method in late 2023. Although that date has come and gone, we’re fairly confident it will be published soon.
Update: As expected, the EPA has finalized Method 1633 and Method 1621. Notably, Method 1633 now includes protocols for testing all planned matrices, including wastewater, surface water, ground water, soils, biosolids, biological tissues, landfill leachate, and sediment. Our PFAS team is currently review the details and will be sharing the results of their assessments on PFAS.com.
#4 More states will include PFAS in NPDES permitting. In 2022, the EPA issued guidance to the states on including PFAS in NPDES permitting. As noted already, Draft Method 1633 was recommended as the preferred test method. We expect to see states begin to incorporate PFAS into NPDES monitoring programs, especially once the final method has been published.
3 PFAS Actions We’re Likely to See in 2024
Next, we move on to a few PFAS actions we’ll be watching for in 2024. These actions are a little less certain, but they are still pretty likely, given what we’re seeing already.
#1 2024 will be a pivotal year for PFAS test method development. Organizations like the EPA and DOD have focused primarily on developing test methods for environmental matrices such as potable and non-potable liquids, soil and sediment, and biota. With several states passing limits or bans on intentionally added PFAS in a variety of consumer products, alternate test methods are needed.
It’s difficult to predict whether any method(s) will become the standard, but by year’s end, there should be more standardization on approaches that deliver the results needed to help consumer goods manufacturers remain compliant with state laws. Pace® is collaborating with other organizations on method development and validation, and we will keep our audience updated on the latest advancements throughout the year.
#2 More PFAS will be added to TRI. The Toxic Release Inventory (TRI) reporting requirements grew from an initial 172 compounds in 2019 to 189 in 2023. A chemical can be considered for addition to the TRI list if it meets certain toxicity criteria defined by the Emergency Planning and Community Right-to-Know Act (EPCRA). With all of the efforts around assessing the toxicity of PFAS, we believe it’s almost certain the EPA will add additional PFAS to TRI reporting requirements.
Update: Before we could get this post out the door, the EPA announced the addition of seven additional PFAS to TRI. Six of the PFAS were automatically added due to the finalization of their toxicity values. These six include:
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Ammonium perfluorohexanoate; Chemical Abstract Service Registration Number (CASRN) 21615-47-4
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Lithium bis[(trifluoromethyl)sulfonyl] azanide; CASRN 90076-65-6
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Perfluorohexanoic acid (PFHxA); CASRN 307-24-4
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Perfluoropropanoic acid (PFPrA); CASRN 422-64-0
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Sodium perfluorohexanoate; CASRN 2923-26-4
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1,1,1-Trifluoro-N-[(trifluoromethyl)sulfonyl] methanesulfonamide; CASRN 82113-65-3
A seventh (betaines, dimethyl(.gamma.-.omega.-perfluoro-.gamma.-hydro-C8-18-alkyl); CASRN 2816091-53-7) was added automatically due to declassification under TSCA (Toxic Control Substances Act).
#3 Effluent Limitation Guidelines will be proposed for landfills. In January of 2023, the EPA published its 15th Effluent Limitation Guidelines Plan, sometimes referred to as ELG Plan 15. In this plan, the agency announced its intention to pursue rulemaking regarding PFAS in discharges from landfills. With increased attention being paid to PFAS in landfill leachate as a source of PFAS, we believe there’s a good chance these limits will be proposed before the end of 2024. Given the potential cost of implementation and the scrutiny this rule is likely to receive, there’s less of a chance it will be published as final in 2024.
2 PFAS Actions We Could See in 2024
Finally, here are a couple of actions we could see in 2024. While they may not happen yet this year, the EPA is almost certainly working on these behind the scenes.
#1 The EPA could propose ELGS for other industries. In ELG Plan 15, the EPA also announced a study of influent from Publicly Owned Treatment Works (POTWs) to identify additional industries that warrant PFAS ELGs. The EPA’s Effluent Limitation Guidelines Plan is updated every two years, so revisions aren’t due until 2025. However, it’s always possible that the agency could announce its intentions ahead of schedule.
#2 The EPA could propose new rules covering categories of PFAS compounds. There have been numerous calls for regulating PFAS as a class of compounds, but the toxicity data isn’t readily available to support such an economically impactful move by the EPA. However, the recent finalization of the Toxic Substances Control Act (TSCA) reporting requirements may indicate that the agency is at least thinking in terms of categories of compounds. Instead of expanding reporting requirements to cover specific PFAS, all PFAS that meet at least one of three structural criteria are now included.
We’re Looking Forward to Partnering with You in 2024!
Predicting what will happen in the world of PFAS and other emerging contaminants can be challenging. But no matter what 2024 brings, Pace® is committed to staying at the forefront of the science of PFAS testing and analysis. Have a question or concern about PFAS? Reach out to us. We’re here to help!
