On October 18, 2021, the U.S. Environmental Protection Agency (“EPA”) released its PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024 (the “PFAS Roadmap”). This widely anticipated plan further expands EPA’s objectives to address the risks associated with per- and poly-fluoroalkyl substances (“PFAS”). Taking a page from the Resource Conservation and Recovery Act’s (“RCRA”) “cradle-to-grave” approach, the PFAS Roadmap is based on the three objectives of “research, restrict, and remediate.” These objectives contain broad goals aimed at protecting human health and ecological systems. Significantly, each objective contains express environmental justice considerations. While various industries can likely expect more targeted rulemakings and data collection efforts in the near future, the PFAS Roadmap already identifies specific industries and activities as particular targets for regulation, including: organic chemicals; biosolids; plastics/synthetic fibers; metal finishing/electroplating; electrical components; textile mills; landfills; leather tanning/finishing; plastics molding; paint formulating; pulp/paper/paperboard; and airports.
EPA has proposed an aggressive timeline to implement the PFAS Roadmap before the 2024 Presidential election. Most upcoming rules will rely on EPA’s authority under the Toxic Substances Control Act (“TSCA”). Specifically, TSCA Section 8(a)(7) provides authority for EPA to collect information on PFAS, and TSCA Section 4 grants EPA the authority to issue Test Orders to require PFAS manufacturers to pay for PFAS studies. As EPA progresses through the PFAS Roadmap, it anticipates relying on authority granted under other environmental statutes such as the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), although it is not clear in all cases whether EPA actually has the statutory authority upon which it relies. These proposed rules will be subject to notice and comment periods, and also subject to potential challenges as to whether the proposed rules fall within the scope of EPA’s authority. Significant expected rulemakings are emphasized in bold below.
Because the PFAS Roadmap is highly dependent upon Congressional and industry funding, it remains to be seen how much of the plan EPA will be able to implement. EPA stated that it intends to exercise its TSCA Section 4 authority to issue Test Orders requiring PFAS manufacturers to conduct and fund PFAS studies related to potential human health and ecological effects. EPA has only used this authority twice. Most recently, in January 2021, EPA used this authority to issue Test Orders related to chlorinated solvents and flame-retardants. Failure to respond to an EPA TSCA Test Order, or failure to otherwise comply with its requirements, is a violation of TSCA.
Additionally, the “remediate” objective focuses on maximizing responsible party performance and funding for investigations and cleanup of PFAS contamination; once again, it is not clear how EPA intends to do this without CERCLA authority.
The PFAS Roadmap identifies specific industries as particular targets for regulation, including: organic chemicals; biosolids; plastics/synthetic fibers; metal finishing/electroplating; electrical components; textile mills; landfills; leather tanning/finishing; plastics molding; paint formulating; pulp/paper/paperboard; and airports. However, the PFAS Roadmap is broad enough to encompass a variety of other industries as well. Accordingly, EPA’s planned rulemakings can be expected to have wide-ranging affects across industries, which will likely include more targeted rulemakings and data collection efforts in the near future.
While EPA is moving forward with the rulemaking process for various aspects of the PFAS Roadmap, there are still multiple opportunities for Congress to shape the process and how the EPA tackles PFAS issues.
EPA’s ambitious plan to conduct nationwide monitoring for PFAS in drinking water – which could greatly expand EPA’s knowledge of areas of PFAS contamination throughout the country – is highly dependent upon Congressional funding. In March 2021, EPA published the proposed Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) which sets the framework for actions taken by the EPA to collect data to monitor and identify the prevalence and frequency in which PFAS are found nationwide. It is expected that a final rule will be published sometime in the Fall of 2021.
In the PFAS Roadmap, EPA proposes to sample all public water systems serving 3,300 or more people and 800 representative public water systems serving fewer than 3,300 during a 12-month period between January 2023 through December 2025. The data collected through this program will not only serve to inform EPA of the prevalence of PFAS, but also could identify “hot spots” where the agency may look to focus on enforcement and mitigation.
As discussed above, it is important to note that the EPA acknowledges that agency actions taken under this final rule will be subject to appropriations by Congress. Congress can either appropriate the full funding request by the EPA, not fund it at all (unlikely), or attach policy riders or report language to the federal funding to influence the data collection process.
Designating certain PFAS under CERCLA as hazardous substances has been a flashpoint of contention in Congress in the debate over addressing PFAS at a federal level. It is anticipated that some members of Congress will look to pursue legislative actions specific to addressing or reforming how these designations are undertaken by EPA.
Participate in the rulemakings. Contact Foley for information as to how the PFAS Roadmap is likely to affect your specific industry and how to submit comments to EPA in response to proposed rules applicable to you. As EPA’s recent rulemaking under TSCA regarding the use of PIP 3:1 demonstrated, industry involvement is crucial during the comment period in order to provide EPA with all the information it needs to understand supply chain and industry impacts of proposed rules and the ability to meet proposed deadlines for compliance. In the PIP 3:1 rulemaking, EPA noted that the comments it initially received were “very general and did not identify specific uses or specific concerns with the March 8, 2021, compliance date.” As a result, EPA issued a No Action Assurance extending the compliance date to March 8, 2022, and is currently seeking comment on a further extension. In order to ensure your interests are represented, you should be prepared to submit comments to EPA in response to potentially applicable PFAS rules.
Meet with Decision Makers. You can also contact your Congressional delegation (and relevant congressional committees) and discuss the potential impacts the proposed rules could have on your operations, and how these rules could shape business models – especially on the heels of the current supply chain disruptions. Foley’s Washington, D.C.-based Public Affairs Team can assist in these connections as needed.