EPA Regulatory Alert: Requirements Increase for PFAS

17 May
PFAS Drinking Water


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In 2021, the Environmental Protection Agency (EPA) published the PFAS Strategic Roadmap to confront the human health and environmental risks of per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals” due to their ability to persist and bioaccumulate in the environment and human body. Through the Roadmap, the Agency has committed to making significant contributions in research and regulations to address concerns related to PFAS exposure. This has included recent actions to improve reporting on PFAS (October 2023), as well as adding seven additional PFAS to the Toxics Release Inventory (TRI) (January 2024).

In April 2024, EPA announced three more notable actions to tackle PFAS contamination.

National Drinking Water Standard

On April 10, 2024, EPA issued the first national, legally enforceable drinking water standard to protect communities from exposure to several PFAS known to occur individually and as mixtures in drinking water. The Safe Drinking Water Act (SDWA) requires EPA to set goals, known as Maximum Contaminant Level Goals (MCLGs), based only on health data and the potential impacts to public. MCLGs are not regulatory levels and are not enforceable. EPA then sets the enforceable Maximum Contaminant Level (MCL) as the highest level of a contaminant that is allowed in drinking water. MCLs are set as close to MCLGs as feasible using the best available treatment technology and taking cost into consideration. The MCLs, which are used for compliance determination, are set at specific concentrations that laboratories nationwide can measure with high certainty.

Perfluorooctanoic acid (PFOA)4.0 ppt*0
Perfluorooctane sulfonic acid (PFOS)4.0 ppt0
Perfluorononanoic acid (PFNA)10 ppt10 ppt
Perfluorohexane sulfonic acid (PFHxS)10 ppt10 ppt
Hexafluoropropylene oxide dimer acid (HFPO-DA, aka “GenX Chemicals”)10 ppt10 ppt
Mixtures of any two or more of PFNA, PFHxS, perfluorobutane sulfonic acid (PFBS), and GenX ChemicalsHazard Index** (unitless)Hazard Index** (unitless)
* Parts per trillion (PPT).
** The Hazard Index is a long-established approach that EPA regularly uses to determine the health concerns associated with exposure to chemical mixtures. EPA’s Hazard Index MCL is set at 1.

Under the standard, initial PFAS monitoring requirements mandate larger systems (i.e., serving more than 10,000 people) take four quarterly samples, while smaller systems (i.e., serving fewer than 10,000 people) take biannual samples. All public water systems have three years to complete initial monitoring for these chemicals and inform the public of the PFAS levels measured in the drinking water. Where PFAS exceeds the MCL, systems must start implementing solutions to reduce PFAS in their drinking water within five years. Drinking water systems have the flexibility to determine the best solution for their community based on a range of available approaches (e.g., granular activated carbon, reverse osmosis, and ion exchange system).

EPA estimates 6-10% of the 66,000 public drinking water systems subject to this rule may need to take action to reduce PFAS to meet the standards. As such, the Agency also announced nearly $1 billion in newly funding available through the Bipartisan Infrastructure Law to help states and territories implement PFAS testing and treatment at public water systems.

Now that EPA has finalized MCLs, states that have already established enforceable drinking water standards for PFAS (e.g., Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin) must adhere to the federal standards if they are stricter or adopt new drinking water standards that are at least as stringent as the federal standards.

The new Rule is expected to put increased pressure on industry to reduce the presence of upstream PFAS contamination, eliminating it before it reaches the drinking water supply.

Superfund Designations

On April 19, 2024, EPA designated two widely used PFAS chemicals—PFOA and PFOS and their salts and structural isomers—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, aka Superfund). This designation will allow EPA to address more contaminated sites, take earlier action, expedite cleanup, and ensure the polluter pays for the costs to clean up PFAS contamination.

Under the Rule, entities are required to report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, as well as state, tribal, and local emergency responders. As a discretionary statute, CERCLA affords EPA the discretion to then decide how to respond to a release based on whether it poses unacceptable risk to human health or the environment. It allows EPA to use one of its strongest enforcement tools to make polluters pay for investigations and cleanup rather than taxpayers through the Superfund Trust Fund.

The final Rule also requires federal entities that transfer or sell their property to provide notice about the storage, release, or disposal of PFOA or PFOS and guarantee (through a commitment in the deed) that contamination has been cleaned up or, if needed, that additional cleanup will occur in the future.

EPA is also issuing a separate CERCLA enforcement discretion policy to clarify that the Agency will focus enforcement on parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties. It is not the Agency’s intent to pursue other parties, such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

The Superfund designation is especially important, as delays in addressing contamination may worsen contamination as PFOA and PFOS have more time to migrate into water and soil. The designation may also encourage better waste management and/or treatment practices by facilities handling PFOA or PFOS to minimize releases, reduce CERCLA notification requirements, and mitigate liability risk.

This Rule puts PFOS and PFAS on equal ground with other hazardous substances regulated under Superfund. The addition will likely increase scrutiny of properties for potential PFAS releases that may impact negotiations and property values and result in liability for property owners. In addition, Section 306 of CERCLA further requires the Department of Transportation to list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.

Destruction and Disposal

Finally, EPA has issued updated Interim Guidance on the Destruction and Disposal of PFAS and Materials Containing PFAS. The document offers guidance and recommendations for managers of PFAS and PFAS-containing materials to protect human health and the environment, including a new technology evaluation framework to help analyze the safety and effectiveness for new destruction and disposal (D&D) technologies.

In the Guidance, EPA encourages the use of D&D options that have a lower potential for releasing PFAS into the environment. It does not establish requirements for D&D of PFAS materials. The Guidance focuses on the following:

  • Underground injection (UIC): Permitted Class I non-hazardous industrial or hazardous waste injection wells are designed to isolate liquid waste deep below the land surface to protect underground drinking water sources.
  • Landfills: Permitted hazardous waste landfills are recommended when PFAS concentration is relatively high. Hazardous waste landfills have leachate emission protections to help control the environmental release of PFAS, which are important for PFAS-containing materials that may break down more easily in landfills.
  • Thermal treatment: Permitted hazardous waste combustors and granular activated carbon reactivation units operating under certain conditions can destroy PFAS, while minimizing releases and exposures; however, some uncertainties remain.
  • Interim storage with controls: While not a D&D technology, storage may be a short-term alternative for some PFAS materials, such as containerized or high PFAS-content materials. With proper controls, interim storage can control PFAS migration.

The Guidance encourages testing a range of methods at thermal treatment facilities before accepting large quantities of PFAS-containing materials. EPA has also released a new analytical test method (OTM-50) to help collect more data and answer questions.

More to Come…

Federal and state initiatives and regulations to manage PFAS are rapidly growing. KTL does not see the challenges associated with PFAS going away any time soon. If anything, we anticipate more facilities will be directly impacted by mitigation efforts and regulatory action to support EPA’s PFAS Strategic Roadmap, such as those outlined above.

It is important for facilities to have a good understanding of PFAS and PFAS-containing chemicals used onsite. Implementing a chemical inventory management system that documents and manages PFAS data can help ensure the facility meets these new requirements. Proper usage and disposal strategies, a comprehensive environmental management system (EMS), and a forward-thinking Emergency Response Plan will also remain vital tools for companies potentially dealing with PFAS to effectively manage the associated risks.

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