Based on a presentation by Nancy Beck; PhD, DABT, Director of Regulatory Science at Hunton Andrews Kurth LLP

Nancy Beck; PhD, DABT, kicked off the conversation with a level set on the conundrum that is PFAS. Not just one chemical, PFAS refers to thousands of chemicals – more than 3,000 worldwide, more than 1,300 of which are identified by EPA and at least 669 have been used in the last 10 years.

While PFAS come in all shapes and sizes, the one thing they have in common is the carbon fluorine bond. This bond is very stable, which makes it persist in the environment – it is also what makes the chemistry so beneficial as a surfactant and water repellent, thus explaining why PFAS have been used so much and why they often persist in the environment.

The more carbon fluorine bonds, the stronger the chemical, and the more persistent it is in the environment. Because this chemistry is so effective and can be used for many different uses, we see them in a multitude of places – quite simply, they’re used everywhere.

And because they’re everywhere, that means they’re also in our environment.

The good news though, is that the CDC has been measuring our PFAS exposure since 1999 and levels are at the lowest ever. As Dr. Beck said on the webinar, this is good news for something with the (inappropriate) moniker of a forever chemical.

Nonetheless, over the last two administrations, the federal government has ramped up its regulatory focus on PFAS.

• In 2019, the Trump administration released a PFAS Action Plan to begin to outline how the EPA would handle PFAS.
• In 2021, the Biden administration launched its EPA Council on PFAS and announced a “whole of EPA approach” to PFAS. Radhika Fox, principal deputy assistant administrator at the EPA’s Office of Water, who was asked to lead the council, said, “By taking a whole of EPA approach, the [EPA Council on PFAS] will accelerate scientific work, regulatory action, and voluntary approaches to address PFAS contamination.”
• Also in 2021, the EPA released its PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024.
• In 2023, EPA rolled out its proposed 2024-2027 National Enforcement and Compliance Initiatives, including Addressing Exposure to PFAS.

Bottom line: The “whole of EPA approach” means that our federal government is using every tool in its toolbox to regulate PFAS exposures and to limit and remove them from the environment. As of last year, that includes the addition of a strategy that made PFAS a priority in enforcement.

In the last 12 months, there have been a number of final rules spanning many areas.

• Safe Drinking Water Act (SWDA): Though the previous health advisory level was 70 parts per trillion (ppt), this rule set a near-zero drinking water standard of 4 ppt for the maximum contaminant level (MCL). EPA believes this is a measurable level. The 66,000 water systems serving more than 99% of Americans will have to comply with this. Public water systems have three years to begin monitoring and five years to come into compliance. The cost is estimated at about $1.5 billion per year and EPA annualized that over 82 years so about $123 billion over 82 years. Though there is some federal funding that is available in the near term, it is not clear how this will be paid for in the long term.
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Impacting the most common longer chain PFOA and PFOS, this rule is designed to ensure timely clean up and hold polluters accountable. The real impact of this rule is on the National Priorities List (NPL) and Superfund sites. It is possible that closed Superfund sites may be reopened to determine if levels are safe and those sites in progress could be disrupted by this addition. Ultimately, this is seen as something that could create a rise in litigation. Of note, the EPA will not pursue publicly owned airports, water utilities, and ag sites that may have applied bio solids. However, those sites are not protected against citizen suits. The US Chamber estimates the cost at $17.5 billion, while the EPA estimated it at significantly less than that.
• Under the Emergency Planning and Community Right-to-Know Act (EPCRA) and Toxic Substances Control Act (TSCA) are reporting rules that will create a tremendous paperwork and tracking burden. EPCRA asks for fiscal-year reporting and TSCA asks for one-time historical reporting on whether a business manufactured or imported anything with one or more of 1,346 PFAS. This covers everything from tennis balls to printers and more. The reporting period was planned to open this fall, but EPA delayed it eight months to continue to build an IT infrastructure that could handle the reporting.

There are also a number of proposed rules currently in review.

• Resource Conservation and Recovery Act (RCRA) would modify the definition of hazardous waste and give EPA the authority to control it from cradle to grave. While this is not specific to PFAS, it would include but all emerging contaminants, which could include PFAS. It allows EPA to subject any chemical to its hazardous protocols. A separate proposed rule estimated that 1,700 facilities will be impacted by EPA adding 9 new PFAS to the Hazardous Constituents Rule.
• CERCLA: EPA released a pre-notice of a proposal that would pretty list all other PFAS compounds as CERCLA hazardous substances.
• Clean Water Act: EPA will soon propose to set a limit and rules for discharge of PFAS from the chemicals, plastics, and organic fibers manufacturing sector.

To learn more about Dr. Beck, or to contact her, click here.