Mid-Year Regulatory Update for Per- and Polyfluoroalkyl Substances (PFAS)

We are now just a few weeks away from the November 2024 Presidential Elections, the Supreme Court of the United States (SCOTUS) is in recess, the Unified Spring Agenda is out, and many new rules have been issued and court cases decided since our 2024 Look Ahead was published in January. Let’s recap where we currently stand on some of the key Polyfluoroalkyl Substances (PFAS) related regulations.

Drinking Water

In April 2024, the United States Environmental Protection Agency (U.S. EPA) finalized the National Primary Drinking Water Regulation (NPDWR) for six PFAS. The NPDWR establishes maximum contaminant levels (MCLs), which are federally enforceable standards, and maximum contaminant level goals (MCLGs), which are health-based, non-enforceable levels. The final MCLs and MCLGs are shown in the table below.

This rule applies to all public water systems (PWS), including small community water systems (CTW) and non-transient, non-community water systems (NTNCWS). To comply with the PFAS NPDWR, PWS must do the following:

• Conduct initial and ongoing compliance monitoring for these PFAS. Initial monitoring must be completed within three years (by 2027).
• If an MCL is exceeded, implement solutions to reduce these PFAS in the drinking water. PWS must implement these solutions within five years (by 2029).
• Beginning in five years (in 2029), PWS that have exceeded an MCL must take action to comply with the PFAS MCLs and notify the public of the violation(s).

This rule was important because it marked the first federally enforceable drinking water standard for PFAS and is estimated to reduce PFAS exposure for approximately 100 million people. Additionally, this rule was important for state regulators, as it gives states the basis and authority for establishment of their own standards. These drinking water standards are also being cited or referenced in other media as well – such as in federal and state cleanup programs, which may establish remediation standards (e.g., groundwater) equivalent to the drinking water MCLs. So even if you are not a PWS subject to this rule, you may begin to see trickle down effects into other regulations that do apply to you.

Industrial Wastewater & Stormwater

We are starting to see state led rules around PFAS in the National Pollutant Discharge Elimination System (NPDES) permitting process as well as stormwater general permits. Irrespective of specific regulations, many states have also begun introducing PFAS monitoring requirements into individual permits for facilities in certain industrial categories that are suspected to use or manufacture PFAS, or facilities that discharge to publicly owned treatment works (POTWs). If you have upcoming permitting actions or renewals, be sure to check the required application contents for changes and new PFAS sampling requirements, as this information is not always announced.

While the list below is not exhaustive, it contains a summary of example industrial wastewater and stormwater permitting requirements.

• Michigan NPDES: The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has added questions around PFAS to their NPDES Industrial/Commercial Application Form for permitting direct discharges of wastewater. This update came as a result of the December 5, 2022 memorandum issued by U.S. EPA to state-authorized permitting authorities which recommended that these agencies leverage the NPDES program to restrict PFAS discharges. EGLE responded to this memorandum by publishing an interoffice communication on March 14, 2023, which addressed how EGLE’s Water Resources Division (WRD) would develop and implement permitting strategies. This change affects both new and reissued permit applications. PFAS compliance measures that will now be required may include, but are not limited to, the following:
  • Source identification and process evaluation of process flows
  • Additional analytical testing parameters for PFAS
  • Submission of reports and action plans for how the facility is addressing PFAS at the facility
  • Product substitution
  • Installation of treatment systems
• Pennsylvania NPDES: The Pennsylvania Department of Environmental Protection (PADEP) updated its NPDES Individual Industrial Wastewater permit application process to now include PFAS as required pollutants to be sampled. Individual wastewater permit applications are now required to include analysis for PFOA, PFOS, PFBS, and HFPO-DA in the “Pollutant Group 1” testing. Because these PFAS were added to “Pollutant Group 1,” this means that all industrial categories are required to complete the testing. PFAS testing is not restricted to specific industrial sectors. Additionally, Module 1 of the individual permit application, which is used to obtain Industrial Stormwater coverage, now includes a question regarding aqueous film forming foam (AFFF) usage. If AFFF is used at a facility, then the PFAS analysis is also required in stormwater.
• Colorado General Stormwater: The Colorado Department of Public Health & Environment (CDPHE) issued revised stormwater General Permit COR900000, which now includes PFAS monitoring requirements for certain industrial sectors, as well as PFAS storage and release requirements relating to AFFF and other potential PFAS-containing materials. Sampling is required for all PFAS analytes covered under U.S. EPA Method 1633 or the most recent Department of Defense (DoD) Quality Systems Manual (QSM). However, the permit currently only requires PFAS monitoring and does not contain numerical standards.
• Proposed Federal NPDES: U.S. EPA is proposing to modify 40 CFR Part 122 to update requirements for NPDES permit applications to address PFAS. The current list of pollutants included in the applications does not include PFAS and has not been updated since 1987. The final rule is anticipated by December 2026. In the meantime, U.S. EPA is relying on state agencies to begin issuing permits with PFAS requirements in accordance with the December 5, 2022, memorandum cited above under the Michigan NPDES update.

In addition to permitting changes, U.S. EPA has proposed a rulemaking under 40 CFR Part 414 to revise the existing Effluent Limitations Guidelines (ELGs) for the Organic Chemicals, Plastics, and Synthetic Fibers point source category. The Notice of Proposed Rulemaking (NPRM) is expected in September 2024. This proposal was announced under ELG Program Plan 15 (Plan 15). Among other items, Plan 15 also included the proposal to revise the Metal Finishing and Electroplating point source category requirements to include PFAS.

The establishment of water quality standards is the next big to-do on U.S. EPA’s list, as this will be a necessary step to establish numerical effluent limits for facilities. While drinking water MCLs are a useful comparison tool in other programs such as cleanup standards, they are not appropriate for use as industrial effluent limitations and industry-specific data is necessary.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

In April 2024, U.S. EPA released the pre-publication notice of the final rulemaking to designate PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This rule became effective on July 8, 2024. While the rule specifically designates PFOA and PFOS as hazardous substances, it also includes their ”salts and structural isomers,” which based on the U.S. EPA CompTox database, may include an additional 98 PFAS chemicals. Entities that will be potentially affected by this rulemaking include:

• PFOA and/or PFOS manufacturers (including importers and importers of articles)
• PFOA and PFOS processors
• Manufacturers of products containing PFOA or PFOS
• Downstream product manufacturers and users of PFOA and PFOS products
• Waste management and wastewater treatment facilities

While U.S. EPA mentioned these broad categories regarding potential remediation or CERCLA investigations, other facilities may be impacted through water intake and industrial water discharge if PFAS concentrations are above the reportable quantity (RQ).

This rulemaking is also expected to pave the way for the addition of other PFAS to the list of hazardous substances. U.S. EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public input on the future designation of additional PFAS as hazardous substances. This rulemaking was originally scheduled to be proposed in April 2025, however the deadline is now listed as “to be determined.”

In general, this CERCLA designation was met with heavy industry pushback and concerns regarding ultimate liability and cleanup responsibility. On August 21, 2024, U.S. EPA published five petitions that were filed relating to this rulemaking. The petitions request that the United States Court of Appeals for the District of Columbia Circuit revisit and review this final rulemaking.

There is speculation that these petitions are coming as a direct result of the Supreme Court’s decision to overturn the Chevron deference. As of now the CERCLA designations are in effect; however it will be important to closely monitor this rule.

Toxic Substances Control Act (TSCA)

In October 2023, U.S. EPA finalized a new one-time reporting rule for PFAS under Toxic Substances Control Act (TSCA)  Section 8(a)(7). The rule requires any entity that has manufactured or imported PFAS or PFAS-containing articles to report detailed information on those PFAS to U.S. EPA for each year since January 1, 2011. Of note, this rule includes a structural definition of PFAS, which based on the U.S. EPA CompTox database is estimated to include ~13,000 unique PFAS chemicals. Importantly, this is a new one-time reporting requirement separate from the typical four-year TSCA Chemical Data Reporting (CDR) cycle.

The original reporting window was scheduled to open from November 12, 2024 through May 8, 2025; however on September 4, 2024, U.S. EPA announced a direct final rule to delay the reporting period to now begin on July 11, 2025 and last through January 22, 2026. The delay is due to U.S. EPA budgetary constraints that impacted the TSCA program this year. In March 2024, the fiscal year budget was reduced by $5 million. This new reporting rule is reliant upon a new Central Data Exchange (CDX)-based reporting module, which has yet to be finalized due to the budget cuts. U.S. EPA is hopeful that the new software reporting application will be fully functional by July 2025.

Facilities should take advantage of this compliance date extension to ensure a thorough evaluation of operations and supply chain and to gather all the required information. Typical exemptions seen under other reporting reviews, such as PFAS contained in articles or low concentrations, do not apply to this one-time reporting rule. This rule is intended to cast a wide net as the information may be used for future risk evaluations or other purposes at U.S. EPA, and therefore, facilities outside of the obvious PFAS manufacturers may be pulled in to reporting. At a minimum, facilities should plan to prepare detailed documentation that supports their assessment and rationale for why or why not reporting is triggered.

Resource Conservation and Recovery Act (RCRA)

In February 2024, U.S. EPA published a proposed rule to list certain PFAS as “hazardous constituents” under Resource Conservation and Recovery Act (RCRA). The rule proposes the addition of the following nine PFAS, including their salts and structural isomers, to the list of hazardous constituents under 40 CFR Part 261, Appendix VIII:

• PFOA
• PFOS
• PFBS
• HFPO–DA
• PFNA
• PFHxS
• perfluorodecanoic acid (PFDA)
• perfluorohexanoic acid (PFHxA)
• perfluorobutanoic acid (PFBA)

It’s important to note that the designation as a hazardous constituent does not equate to the designation as a hazardous waste, but it is a critical step towards a potential future hazardous waste listing. However, the designation of a hazardous constituent allows for corrective actions under RCRA to address releases. If finalized, this rule would impact how facilities manage solid waste that contains these hazardous constituents, as those impacted facilities would be looking to minimize future corrective actions. It could also add difficulty to securing waste vendors willing to accept certain solid waste.

This proposed rule was open for comment until April 8, 2024; however, it was not on the Spring Unified Agenda for further rulemaking. Given the other uphill battles and opposition that U.S. EPA is currently facing regarding PFAS regulation, the finalization of this RCRA rulemaking appears to have taken a back seat.

Toxic Release Inventory (TRI)

In December 2019, the Fiscal Year 2020 National Defense Authorization Act (NDAA) was signed into law, which included the automatic addition of certain PFAS to the list of Toxic Release Inventory (TRI) chemicals under NDAA Section 7321. The NDAA also put into place the following regulatory activities that automatically trigger the addition of other PFAS to the list:

• Final Toxicity Value: The date on which the Administrator finalizes a toxicity value for the PFAS or class of PFAS
• Significant New Use Rule: The date on which the Administrator makes a covered determination for the PFAS or class of PFAS
• Addition to Existing Significant New Use Rule: The date on which the PFAS or class of PFAS is added to a list of substances covered by a covered determination
• Addition as an Active Chemical Substance: The date on which the PFAS or class of PFAS to which a covered determination applies is:
  • Added to the list published under TSCA Section 8(b)(1) and designated as an active chemical substance under TSCA Section 8(b)(5)(A); or
  • Designated as an active chemical substance under TSCA Section 8(b)(5)(B) on the list published under TSCA Section 8(b)(1).

In accordance with these provisions, U.S. EPA has updated the TRI list to include additional PFAS each year since the initial listing beginning in 2020. A summary of the number of reportable PFAS covered under each reporting year is provided below.

*U.S. EPA is currently in the process of incorporating additional PFAS to this list through a proposed rulemaking which is expected to be finalized by April 2025.

The other major update to TRI that occurred is that for reporting year 2024 (reports due July 1, 2025), among other things, the de minimis exemption no longer applies to PFAS as these chemicals were designated as “chemicals of special concern.” Because of the continuous evolution of PFAS regulation under TRI, it is important for facilities to diligently track new supplier notifications, safety data sheets (SDS), and the list of applicable PFAS under TRI to ensure that reports are complete, accurate, and reflect the latest regulatory requirements.

The world of PFAS continues to expand and the requirements are impacting more and more facilities. Even if you are not in an industry involved in the manufacturing of PFAS products, expect there to still be a crossover into your operations. If you are unsure of the next step to take, you may want to start by conducting a review of your materials on site to determine if any could be a potential source of PFAS. ALL4 can help – please contact me at knuschke@all4inc.com for assistance or questions.