PFAS Expectations for 2024

With the new year, we expect to see several of the same issues relating to per- and polyfluoroalkyl substances (PFAS), as well as a handful of new ones to tackle.  While the regulatory landscape continues to change, there are a few general themes you should keep in mind for 2024 including: 1) expansion of rule applicability to more industrial sectors; 2) expansion of sampling requests and method availability; and 3) expansion of waste treatment initiatives and treatment options.

1. Expansion of Rule Applicability
   In 2023, many proposed rules continued to inch towards, or even crossed the goal line, into finalization.  We expect this regulatory trudge forward to continue into 2024.  Some examples of key actions to be on the lookout for include:

• Proposed Federal Drinking Water Maximum Contaminant Level (MCL)
  In March 2023, the U.S. Environmental Protection Agency (U.S. EPA) proposed national drinking water standards for six PFAS. Once finalized, the rule will become the first federally enforceable drinking water regulation to address PFAS.  The rule proposes legally enforceable MCLs for perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as “GenX”), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS).  This rule will apply to certain public drinking water systems, however the drinking water MCLs will establish a framework that may be utilized by regulatory programs impacting other industrial sectors. The White House Office of Management & Budget (OMB) has begun their review of the final rule, and U.S. EPA anticipates promulgating the final rule in early 2024.  Expect to see more PFAS limitations and monitoring requirements.

• Final Toxic Release Inventory (TRI) “de minimis” Exemption Removal
  In November 2023, U.S. EPA finalized a rule that designates PFAS as “chemicals of special concern” under TRI.  Such designation eliminates the de minimis exemption for TRI reporting and supplier notifications, and eliminates the option to submit a Form A report instead of a Form R.  PFAS are typically incorporated into materials at very low concentrations, historically allowing facilities to disregard them during the TRI reporting process and for supplier notifications because the materials met PFAS de minimis concentration levels.  U.S. EPA’s intention with this rulemaking is to improve and expand the data received under TRI, with the expectation being that more facilities will now be required to submit release data than have historically done so. Expect the review to determine whether PFAS reporting is triggered to be more involved.

• Toxic Substances Control Act (TSCA) Recordkeeping and Reporting Requirements
  There are several regulatory pushes under TSCA relating to PFAS.  First, U.S. EPA proposed a rule in May 2023 that would eliminate certain exemptions for PFAS entering commerce.  The removal of the exemptions would ensure that all new PFAS go through a full safety review rather than the currently allowable abbreviated review.  U.S. EPA also developed a framework tool to be used during PFAS evaluations for TSCA chemical approvals in order to ensure new PFAS, or new uses of existing PFAS, do not pose a risk to human health or the environment.  U.S. EPA also committed to reviewing approximately 150 PFAS that had previously been reviewed through the TSCA new chemicals program to ensure that protective requirements have been extended to all future manufacturers and processors. Several Significant New Use Rules (SNURs) were proposed that would require these protections and U.S. EPA expects to propose additional rules in 2024.  U.S. EPA also recently finalized a rule in January 2024 which will evaluate 329 “inactive” PFAS on the TSCA Inventory to ensure that usage of these inactive chemicals are not resumed prior to receiving approval from U.S. EPA.

Lastly, U.S. EPA finalized a new rule under TSCA in October 2023 that will require all manufacturers and importers of PFAS and PFAS-containing articles in any year since 2011 to report information starting in November 2024.  This will be a one-time reporting requirement, separate from the typical four-year TSCA Chemical Data Reporting (CDR). Information to be reported will include PFAS uses, production volumes, disposal, exposures, and hazards.  Notably, there are very limited exemptions under this rule, and it is anticipated that more facilities will be subject to this one-time PFAS reporting requirement than are usually subject to TSCA reporting.

• Proposed Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Hazardous Substance Designation
  U.S. EPA first published a proposed rulemaking for the designation of PFOA and PFOS as CERCLA hazardous substances on September 6, 2022.  While not yet finalized, U.S. EPA is expecting to take final action on this rule in early 2024. This rulemaking would affect CERCLA reporting, disclosure, transportation, investigation, and remediation requirements, and U.S. EPA intends for this rulemaking to help hold polluters accountable and improve transparency around PFAS releases.  However, liability and remediation responsibility are major concerns for multiple industry sectors that are still not clear under this rule.  As such, U.S. EPA is also in the process of developing a CERCLA enforcement discretion policy on PFAS.  If finalized, the addition under CERCLA will have impacts to site cleanup activities, due diligence procedures, and land transactions.

• State Consumer Goods Restrictions
  Several states, such as California, Maine, Minnesota, New York, Vermont, and Washington are imposing consumer goods restrictions for certain products that contain PFAS.  While restrictions vary by state, typically, these rules prohibit the manufacture, distribution, or import of certain products with intentionally added PFAS above certain concentrations.  Examples of targeted products are food packaging, carpets, rugs, fabric treatments, children’s products, cookware, and cosmetics.  Companies operating or distributing products in multiple states should stay informed on changing state restrictions and may also consider product testing in order to prepare certification documents to prove they do not contain PFAS above the applicable concentrations.

Takeaway #1: The PFAS regulatory net that was originally cast started small but continues to grow larger. Initially, only certain industrial sectors that used PFAS as key ingredients to their process were typically pulled into requirements.  However, with the expansion of these regulations, the applicability criteria have also expanded, and available exemptions have also dwindled.  Even for industrial sectors that aren’t obvious PFAS users, you may still be subject to regulations or may even be surprised to find that PFAS are in your process through trace quantities from supplier materials.  ALL4 can help identify PFAS rules that your facility may be subject to and help develop a compliance strategy.

2. Expansion of Sampling
   To supplement the regulatory process, there will also be continued expansion of sampling, monitoring, and testing programs in 2024.  Some examples include:

• National PFAS Testing Strategy
  U.S. EPA first published its “National PFAS Testing Strategy” in October 2021.  Efforts under the National PFAS Testing Strategy have continued to expand, with U.S. EPA issuing multiple rounds of testing orders to require certain manufacturers to test chemicals used to make plastics and GenX chemicals.  U.S. EPA anticipates more testing orders will be issued to companies in 2024.

• Fifth Unregulated Contaminant Monitoring Rule
  U.S. EPA originally published the fifth Unregulated Contaminant Monitoring Rule (UCMR 5) in December 2021.  UCMR 5 requires drinking water samples be collected for 30 contaminants (29 PFAS and lithium) at public water systems. Sampling begun in 2023 and will continue throughout 2024.  Under UCMR 5, U.S. EPA will release quarterly monitoring data in order to help U.S. EPA better understand national-level exposure to these PFAS, and to what extent these PFAS impact communities. U.S. EPA will continue to publicly update UCMR 5 results each quarter over the next three years.

• 15th Effluent Limitations Guidelines Plan (ELGP)
  In January 2023, U.S. EPA released its 15^th ELGP, the latest plan for setting technology-based standards for industries that discharge PFAS. The ELGP includes rulemakings to address discharges from landfills and a new Publicly Owned Treatment Works (POTW) influent study, which will collect information on wastewater discharges from a broad range of industry sectors.  Under the ELGP, U.S. EPA also plans to study other key industry sectors, such as the textile industry, pulp and paper, and airports, to determine whether additional actions are required.  Studies may include data collection, monitoring, or other requests from U.S. EPA.  U.S. EPA also expects to propose new ELG in 2024 for certain industrial sectors for which data has already been collected, such as the organic chemicals, plastics, and synthetic fibers industry, and the metal finishing and electroplating industry.

• Advances in Sampling Methods
  If the only tool you have is a hammer, you tend to see every problem as a nail. As such, U.S. EPA is continuing their progress on the development of additional PFAS sampling methods.  U.S. EPA and the Department of Defense are in the final stages of validating Method 1633, which is a method to test for 40 PFAS in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue. U.S. EPA expects to finalize Method 1633 and to start the rulemaking process to formally codify Method 1633 under the Clean Water Act (CWA) in 2024. Having expanded, validated sampling options will allow for more uniform and streamlined compliance demonstrations under future rules and permits.

Takeaway #2: Data gathering is the theme.  Even if you aren’t subject to a regulation, you may still be pulled into PFAS monitoring or other data collection requests as U.S. EPA works to determine which industry sectors should be the focus of further regulation.  And as we’ve seen so far, PFAS can be found in some not-so-obvious places.  ALL4 can help conduct sampling or monitoring or help develop procedures to ensure a representative analysis.

3. Expansion of Waste and Treatment Initiatives
   In addition to regulatory and sampling efforts, there is also a continued focus on the need to identify proper PFAS disposal and treatment options.  We know PFAS are here, but how do we get rid of them?  Some examples of actions include:

• PFAS In Biosolids
  U.S. EPA is currently completing risk assessments for PFOA and PFOS in biosolids for public comment and release in 2024. Additionally, U.S. EPA, in partnership with several other organizations, has developed principles and guidance for the management of PFAS-containing biosolids.  In July 2023, U.S. EPA, the Environmental Council of States (ECOS), and the National Association of State Departments of Agriculture (NASDA) released the “Joint Principles for Preventing and Managing PFAS in Biosolids” to help address the unique challenges states and facilities face regarding possible PFAS presence in biosolids.  In the interim, states such as Maine are going an extra step.  The land application of sludge, regardless of PFAS concentration, was recently banned in Maine due to concern over potential residual PFAS in sludge that could contaminate soil and crops.  This ban has presented a new challenge of sludge management for Maine, and the state is currently working to evaluate large-scale sludge drying facilities in order to make the transport of sludge to landfills easier and more cost-effective.  We may see other states follow suit with similar bans.

• PFAS Cleanup Guidance
  U.S. EPA continues to make progress regarding PFAS cleanup efforts, technologies, and best practices established for facilities.  For example, in August 2023, U.S. EPA rescinded its 2019 groundwater cleanup guidance for PFOA and PFOS and instead, now recommends that facilities rely on well-established cleanup practices under CERCLA and the Resource Conservation and Recovery Act (RCRA).  U.S. EPA has also updated its Regional Screening Level and Regional Removal Management Level tables, which include data for 14 PFAS.  These tables provide risk-based values that help U.S. EPA determine if further remediation is necessary.

Based on a recent study, U.S. EPA is also now recommending that site assessors consider vapor intrusion as a potential hazard in assessments of waste sites where high levels of PFAS are found in shallow soils and groundwater.  This first-time study found that vapor intrusion of volatile PFAS may pose health risks to building occupants.  It is expected that this recommendation will add to the existing liability and remediation responsibility concerns discussed under CERCLA, particularly if the PFAS involved are designated as “hazardous substances.”

Lastly, in early 2024, U.S. EPA is expected to release an update to the interim guidance on destroying or disposing of PFAS-containing materials that was originally published in 2020.  The guidance is expected to reflect significant advances by U.S. EPA over the past three years and provide much-needed guidance for facilities on the best available waste management techniques for PFAS.  While many people wish to go PFAS-free at their facilities, they often don’t know where to send the waste materials once they do.  As a result of these PFAS-free initiatives, the waste management sector is also seeing an uptick in PFAS-containing waste shipments, but it is unclear what disposal or destruction option should be prioritized.  U.S. EPA’s 2024 guidance document will hopefully help answer these questions.

• Actions Under the Resource Conservation and Recovery Act (RCRA)
  U.S. EPA has initiated two connected PFAS rulemakings under RCRA. The first rule would designate certain PFAS as “hazardous constituents” under RCRA, which would make these PFAS subject to investigation and cleanup activities at permitted hazardous waste facilities.  This rule remains under interagency review. The second rule would clarify that emerging contaminants such as PFAS can be cleaned up through the RCRA corrective action process.  The rule is expected to clarify that PFAS and other substances listed as hazardous constituents under RCRA’s Appendix VIII are subject to the statute’s corrective action program. The White House OMB has completed review of the proposed corrective action rule so we should see a final rule soon.

Takeaway #3: If you are interested in disposing of PFAS at your site, there is plenty of new guidance and proposed restrictions to be aware of.  It may be prudent to get a strategy prepared sooner rather than later.  ALL4 can help review waste streams and waste vendors, and navigate local and federal regulations, programs, and other available options.

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 kturney@all4inc.com for assistance.