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Recent Developments in PFAS Regulation

The regulation of per- and poly-fluoroalkyl substances (PFAS) continues to rapidly evolve at the New York State and federal levels. As further detailed in SPR’s prior blog post on this issue, PFAS are a family of chemical compounds with unique properties allowing them to withstand extreme temperatures, resist degradation, stains, and grease, and adopt nonstick qualities. PFAS are commonly found in lubricants, water-repellent clothing, and non-stick kitchenware. Below, we discuss recent developments affecting this ubiquitous class of chemicals.

Proposals to Regulate PFAS Under CERCLA

On April 13, 2023, the EPA published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) seeking data and public comment regarding the potential future regulation of PFAS under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA will accept public comments for 60 days, until June 12, 2023.

EPA’s recent ANPRM is distinct and in addition to its proposed rule to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under CERCLA, which was previously published in the Federal Register on September 6, 2022. The ANPRM reflects EPA’s consideration of additional PFAS compounds for listing, namely:

(1) perfluorobutane sulfonic acid (PFBS);

(2) perfluorohexane sulfonic acid (PFHxS);

(3) perfluorononanoic acid (PFNA);

(4) hexafluoropropylene oxide dimer acid (HFPO-DA, sometimes referred to as GenX chemicals);

(5) perfluorobutanoic acid (PFBA);

(6) perfluorohexanoic acid (PFHxA); and

(7) perfluorodecanoic acid (PFDA);

as well as any precursors to PFOA, PFOS, and the seven PFAS and their salts and isomers, listed above. EPA is additionally seeking input on whether to potentially designate groups or categories of PFAS as hazardous substances.

EPA is seeking additional information about these substances to supplement the data in its CompTox Chemicals Dashboard and to determine whether to initiate future agency action designating some or all of these PFAS compounds and/or categories as hazardous substances under CERCLA. Specifically, EPA seeks to regulate these PFAS under Section 102(a) of CERCLA, which authorizes the EPA Administrator to promulgate regulations designating as hazardous substances such elements, compounds, mixtures, solutions, and substances which, when released into the environment, may present substantial danger to the public health or welfare or the environment. The factors EPA considers when determining whether to designate a hazardous substance include, but are not limited to, adverse human health effects and the mobility, persistence, and environmental prevalence of the substance. Listing would mean that EPA and other parties could recover response costs associated strictly with listed PFAS compounds (including costs of treating drinking water) from responsible parties within the classes identified under Section 107(a) of CERCLA, and that EPA could mandate investigation and remediation of PFAS contamination by responsible parties.

EPA hosted two public listening sessions on March 14 and March 23, 2023 to seek public input on potential enforcement discretion and settlement policies for PFAS sites under CERCLA. The comment period closed on March 31, 2023. The listening sessions were aimed at addressing stakeholder concerns and reducing uncertainties by clarifying when EPA intends to use its CERCLA enforcement discretion if any PFAS compounds are listed. EPA announced its intention to develop enforcement guidance under the assumption that one or more PFAS will be listed as hazardous substances, and further expressed an intent to use its enforcement discretion not to target certain potentially responsible parties such as water utilities, Publicly Owned Treatment Works (POTWs), municipal landfills, and airports and fire departments. Instead, EPA intends to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment.

Proposals to Regulate PFAS Under the Safe Drinking Water Act

The ANPRM follows the EPA’s publication on March 29, 2023 of a proposal to regulate PFAS under the Safe Drinking Water Act through issuance of a proposed National Primary Drinking Water Regulation (NPDWR). The NPDWR would establish national and legally enforceable drinking water Maximum Contaminant Levels (MCLs) for six PFAS compounds likely to be found in drinking water. An MCL is the maximum level allowed of a contaminant or a mixture of contaminants in water which is delivered to any user of a public water system (PWS), which are the regulated drinking water systems subject to the NPDWR.

The six PFAS compounds subject to the proposed rule include PFOA; PFOS; PFHxS; HFPO–DA and its ammonium salt; PFNA; and PFBS. If the NPDWR is finalized, PWSs would have three years following rule promulgation to implement the required monitoring and reporting of PFAS, though extensions of up to two years may be authorized by EPA. The required monitoring frequency depends on the size of the PWS. Specifically, groundwater systems serving greater than 10,000 customers would be initially required to monitor for regulated PFAS on a quarterly basis within a 12-month period. To provide additional flexibility for small groundwater systems, EPA proposes that groundwater systems serving 10,000 or fewer customers would be initially required to monitor for regulated PFAS only twice within a 12-month period. Though EPA has proposed limiting initial monitoring to a single 12-month period, EPA is seeking comment on the proposed initial monitoring timeframe in the NPDWR.

The proposed MCLs for PFOA and PFOS are 4.0 parts per trillion (ppt), which are more stringent than any drinking water quality standard for PFAS nationwide, and equivalent to the lowest reliably detectable level. EPA proposes to use a Hazard Index approach to regulating mixtures of PFHxS, HFPO-DA and its ammonium salt, PFNA, and PFBS because of their known and additive toxic effects plus likely co-occurrence in drinking water. The Hazard Index is a tool that EPA regularly uses to inform analysis of increased risks of chemical mixtures. To determine the Hazard Index for these four PFAS, water systems would input detected concentrations of these substances into a formula with each substance’s Health-Based Water Concentration (HBWC) (i.e., the level at which no health effects are expected for that PFAS). The proposed HBWCs for each of the four PFAS are 9.0 ppt for PFHxS, 10 ppt for HFPO-DA, 10 ppt for PFNA, and 2,000 ppt for PFBS.

Water systems with PFAS levels that exceed the proposed regulatory limits would be required to take action to provide safe and reliable drinking water under the NPDWR. To comply with the proposed MCLs if they are adopted, PWSs may install water treatment or consider other options, such as using a new, uncontaminated water source or connecting to an uncontaminated water system. Activated carbon, anion exchange (AIX) and high-pressure membrane technologies have also been demonstrated to remove PFAS from drinking water systems. These treatment technologies can be installed at a PWS’s treatment plant and are also available through in-home filter options.

Comments on the NPDWR must be submitted to EPA by May 30, 2023, and EPA will hold a virtual public hearing on May 4, 2023.

Regulation of Aqueous Film-Forming Foam (AFFF)

AFFF is a highly effective type of fire extinguishing foam considered to be the best option for extinguishing fuel-based fires, which has been used at most if not all U.S. military installations. AFFF is also a source of PFAS contamination because of its deployment during fires and firefighter training. The use of AFFF has been required for airport fire-fighting operations at commercial airports by the Federal Aviation Administration (FAA). The FAA requires that AFFF meets military specification (MILSPEC) requirements, and the MILSPEC contains specific performance standards for AFFF.

On January 12, 2023, a new MILSPEC, MIL-PRF-32725, was released for land-based applications of a non-PFAS Fluorine Free Foam (F3), a new type of foam used to extinguish fires involving flammable and combustible liquids. According to this MILSPEC, the U.S. Department of Defense intends to ultimately identify commercially available F3 that has equivalent firefighting performance and chemical and physical properties to the legacy AFFF covered by MIL-PRF-24385. The FAA will accept airport operators’ use of the new F3 extinguishing agent once F3 passes the military performance standards of MIL-PRF-32725, qualification testing, and is added to the U.S. Navy’s Qualified Products List (QPL). Currently, certified airports will not be required by the FAA to transition to the new F3, and airport operators are authorized to continue using AFFF listed on the QPL.

Also on January 12, 2023, the FAA issued Cert Alert No. 23-01, informing certified airport operators that a performance-based standard for F3 has been developed. A prior Cert Alert, issued on October 4, 2021, informed airport operators that the MILSPEC for AFFF no longer expressly required the use of fluorinated chemicals. However, at the time, no alternative meeting the performance standard for AFFF without containing fluorinated chemicals had been identified.

New York State Actions to Regulate PFAS

As previously covered in SPR’s prior blog post, the New York State Department of Health adopted a 10 ppt MCL for PFOA and PFOS in drinking water in July 2020. More recently, on March 15, 2023, the New York State Department of Environmental Conservation (NYSDEC) announced the issuance of final water quality guidance values (GVs) to regulate PFOA, PFOS, and 1,4-dioxane in New York State waters. Set lower than the State’s MCLs for PFOA, PFOS, and 1,4-dioxane, these ambient GVs are intended to protect source waters and provide an extra margin of safety to complement and prevent exceedances of the drinking water MCLs. The GVs will initially be incorporated into requirements for industrial discharges needing a State Pollutant Discharge Elimination System (SPDES) permit under the Clean Water Act, so these emerging contaminants are controlled at industrial sources rather than downstream treatment systems. In addition to the final guidance implementing actions to control industrial discharges, NYSDEC announced that it is actively working on proposing draft guidance to address emerging contaminants discharged through POTWs.

The GVs are established in an addendum to NYSDEC’s Technical and Operational Guidance Series (TOGS) documents and a new TOGS 1.3.13: Permitting Strategy for Implementing Guidance Values for PFOA, PFOS, and 1,4-Dioxane. The GVs to protect human health are 6.7 ppt for PFOA and 2.7 ppt for PFOS. NYSDEC also established new GVs for PFOS and 1,4-dioxane for the protection of aquatic life.

The SPR Blog will continue to track these developments and provide analysis and updates on the regulation of PFAS.