EPA Releases PFAS Strategic Roadmap

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- Businesses could face additional PFAS compliance requirements as early as 2022

- EPA planning to list PFAS as a CERCLA hazardous substance by 2023

- Expect PFAS to be addressed in NPDES permits and industrial ELGs

- Expect establishment of PFAS drinking water limits and water quality criteria

The U.S. Environmental Protection Agency ("EPA") released its PFAS Strategic Roadmap on October 18, 2021.  In it, EPA identifies numerous actions it plans to take over the coming years to address PFAS contamination, many of which could have significant future impacts on businesses.  These include:

  • CERCLA. EPA will propose to designate perfluorooctanoic acid ("PFOA") and perfluorooctane acid ("PFOS") as hazardous substances under CERCLA as early as spring 2022, with a final rule in the summer of 2023.  If accomplished, this would allow EPA to order the investigation and remediation of PFOA and PFOS contamination at EPA cleanup sites.  Designating PFOA and PFOS as CERCLA hazardous substances will require reporting of releases of PFOA and PFOS that meet or exceed the reportable quantity that will be assigned to these substances.   In addition, this could trigger extensive litigation by private parties seeking contribution or cost recovery from other contributors to historic PFAS contamination at a site.  Industries with an extensive history of PFOA and PFOS use, such as airports, municipal firefighting training sites, oil and gas facilities, and manufacturing facilities that used these fluorinated compounds are especially at risk of future litigation and enforcement actions.
  • Industrial Wastewater Discharges. Effluent Limitations Guidelines ("ELGs") are technology-based regulatory limits on the level of specified pollutants in wastewater discharged into surface waters and into municipal sewage treatment facilities.  Based on EPA's PFAS multi-industry study, EPA anticipates proposing as early as summer of 2023 PFAS limits for certain industrial categories, such as organic chemicals, plastics and synthetic fibers, metal finishing, and electroplating. Other industrial categories will follow as EPA collects sufficient data from ongoing studies and data reviews.  EPA also intends to monitor industrial categories where PFAS is scheduled to be phased out to determine if ELGs are warranted, such as airports, pulp, paper, and paperboard.
  • NPDES Permits. EPA is looking to include additional PFAS monitoring requirements and possible discharge limits in NPDES permits by the winter of 2022.
  • Drinking Water. In March of this year, EPA announced its plan to include PFAS in the next nationwide drinking water monitoring effort (Fifth Unregulated Contaminant Monitoring Rule, or UCMR 5).  Adding to this, EPA plans to propose a national primary drinking water standard for PFOA and PFOS by fall of 2022 with a goal of finalizing enforceable limits by the fall of 2023.
  • TRI Reporting. EPA intends to eliminate most current PFAS reporting exemptions, and EPA will add additional PFAS to the Toxics Release Inventory reporting requirements by spring 2022.

 The PFAS Roadmap contains numerous other planned initiatives intended to better understand the scope of PFAS use, limit the ability of PFAS to enter the environment, strategies to address existing contamination, development of new monitoring and detection methods, and research into PFAS toxicity.

Businesses who use, or have previously used, PFAS at their facilities should review the PFAS Roadmap to see how and when planned initiatives could affect future business operations, to assess potential costs associated with increased PFAS compliance requirements, and to understand their exposure to future liability.  Additionally, businesses and trade groups should track projected timelines for proposed actions so they are prepared to comment on EPA proposed rules and other pertinent guidance documents.

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