Federal Regulation of PFOS and PFOA

• Interim Cleanup Recommendations for PFOS and PFOA– On December 19, 2019, U.S. EPA established preliminary cleanup standards for CERCLA and RCRA cleanup sites; however, as the guidance documents makes clear in the first footnote on the memorandum, it is “not considered binding on any party.”
• Safe Drinking Water Act (SWDA)- On February 20, 2020, U.S. EPA issued a preliminary regulatory determination under the SWDA for perfluorooctane sulfonate (PFOS) and perfluoroctanoic acid (PFOA).  EPA has proposed a standard of 70 parts per trillion as the maximum amount allowable in drinking water.  This is the first step in a lengthy regulatory process to establish “maximum contaminant level” (MCL) under National Primary Drinking Water Regulation.  MCLs   have two major regulatory impacts: 1) drinking water plants must treat finished drinking water below the MCLs ; and 2) MCLs become the default cleanup standard for groundwater contamination at most cleanup sites.  While EPA is taking this initial step, it could take four or five years before the MCLs are finalized between public comments periods and scientific justification of the new MCLs.
• Certain PFAS Compounds Listed as Hazardous Substances under CERLCA– According to the National Law Review, EPA had committed to regulated PFOA, PFOS, and a PFOA-replacement chemical known as GenX as hazardous substances under CERCLA by the end of 2019;  however, EPA has not yet issued a proposed rulemaking.  Even if designated as hazardous substances, U.S. EPA would have to establish appropriate cleanup levels.  If EPA waits for finalization of MCL standards it could be years before cleanup standards are established; however, as discussed below, some states have moved forward in establishing their own MCLs.  In those states, once the PFASs are designated hazardous substances, state cleanup standards must be followed in CERCLA cleanups in those states.  In those states that adopt state specific MCLs, it will unlock CERCLA’s broad reach to recovery cleanup costs from companies that generated, transport or disposed of PFAS compounds.
• Petition to Regulate as Hazardous Waste- On January 15, 2020, environmental groups filed a petition asking U.S. EPA to regulate certain PFAS compounds as a hazardous waste under the Resource Conservation and Recovery Act (“RCRA”).  If PFAS compounds were regulated as hazardous waste it would have huge implications for the generation, transport and disposal of PFAS waste materials.
• Added to List of Reportable Chemicals- On December 4, 2019, EPA published a proposed rule for public comment adding certain PFAS compounds to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).  One component of the proposed rule is whether the reporting threshold should be lowered from the typical thresholds of 25,000 lbs or 10,000 lbs depending on how the chemicals are used. On December 20, 2019, the National Defense Authorization Act added certain PFAS chemicals to the list of reportable chemicals pursuant to the Toxic Release Inventory (TRI) set forth in EPCRA Section 313.  Businesses should be tracking releases of these chemicals this year and will be required to report by July 1, 2021.
• Import Regulation under TSCA– EPA is committed to using its authority under TSCA to evaluate new uses of PFAS.  On February 20, 2020, U.S. EPA issued a proposed supplemental significant new use rule (“SNUR”) under its TSCA authority.  A SNUR would require anyone seeking to import one of the listed  PFAS compounds to notify the EPA in advance.  EPA would then evaluate the risks posed by the proposed use.  EPA also recently developed a proposal to require notification and review under TSCA before PFAS chemicals are imported or manufactured in the U.S.
• National Defense Authorization Act-  On December 20, 2019, the National Defense Authorization Act (NDAA) was signed into law.  NDAA automatically added 172 PFAS compounds to the EPA’s Toxic Release Inventory (TRI) which requires companies to report management of certain toxic chemicals. As a result of NDAA, facilities that manufacture, process, or otherwise use PFAS must report releases of these chemicals by July 1, 2021.  NDAA also requires all public water systems that serve 10,000 persons to monitor PFAS under the Safe Drinking Water Act.  While proposed, NDAA did not designate PFAS compounds as hazardous substances under CERCLA.

Ohio Action on Regulation of PFOS and PFOA