Flurry of PFAS Actions in the First 100 Days of the Biden Administration: The Highlights

The first 100 days of the Biden Administration saw a flurry of activities at the federal level seeking to address PFAS, a class of thousands of manmade chemicals notoriously known as Forever Chemicals because they don’t break down in the environment.

Studies continue to report adverse health effects associated with exposure to PFAS, even at extremely small concentrations. Studies are also increasingly finding high rates of PFAS in our everyday environment including drinking water, consumer and household products, food packaging, and more. However, the United States Environmental Protection Agency (EPA) has not yet established any enforceable drinking water or remediation standards for any PFAS chemical. See the PFAS Practice Tip at the end of the article regarding regulatory actions at the state level.

As the body of evidence showing potential adverse health effects and the high prevalence of PFAS in the environment increases, so do the calls for federal regulation from environmental organizations, the public, and even Congress. Click here and here for background information on PFAS chemicals, their prevalence and health effects.

Acting on PFAS was a steadfast part of President Biden’s environmental campaign promises. Here are the highlights on actions taken during the first 100 days:

  • April 27, 2021. PFAS Memo issued by New EPA Administrator Michael Regan
    • Develop national primary drinking water standards
    • Collect new data on 29 types of PFAS chemicals
    • Solicit data on the presence and treatment of PFAS in wastewater discharges
    • Establish the EPA Council on PFAS (ECP)
      • Charged with implementing the 2019 EPA Action Plan, prepared by EPA career staff
      • Also charged with developing the “PFAS 2021-2025 – Safeguarding America’s Waters, Air and Land,” a strategy to deliver critical public health protections
      • Initial recommendations to be made within 100 days of establishment of ECP
  • April 13, 2021. PFAS Action Act of 2021, bipartisan bill introduced to the US House of Representatives
    • Drinking water standard for PFOA and PFOS within two years
    • Designate PFOA and PFOS as a “hazardous substances” within one year and determine if other PFAS should be designated within five years under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), known as Superfund
    • Require testing of PFAS for toxicity to human health under Toxic Substances Control Act (TSCA)
    • Designate PFOA and PFOS as “hazardous air pollutants” under the Clean Air Act within six months and determine if other PFAS should be designated within five years
    • Prohibit unsafe incineration of PFAS waste
    • Moratorium on introduction of new PFAS into commerce
    • Establish industrial discharge limits and provide $200M annually for wastewater treatment
  • April 8, 2021. Updated PFBS Toxicity Assessment released by EPA
    • Comparable to assessments under EPA’s Integrated Risk Information System (IRIS) and Provisional Peer-Reviewed Toxicity Value (PPRTV) Program
    • Animal studies show effects on the thyroid, reproductive organs and tissues, developing fetus, and kidney following oral exposure
    • Data are inadequate to evaluate cancer effects
    • Provides hazard identification, dose-response information, and toxicity values
    • Developed reference doses (RfDs), the estimated amount of a chemical a person can ingest daily over a lifetime (chronic RfD) or less (subchronic RfD) that is unlikely to lead to adverse health effects
    • PFBS suggested to be less toxic than PFOA and PFOS based on the RfD
    • This assessment is not a regulation; rather, it provides a critical part of the scientific foundation for risk assessment decision making.”
  • March 17, 2021. Advance Notice of Proposed Rulemaking (ANPRM) for Wastewater Discharges published by EPA under the Clean Water Act
    • Provides information collected by EPA to date under its PFAS Multi-Industry Study for review and comment
    • Poses questions to PFAS manufacturers and formulators, soliciting information about PFAS wastewater discharges
    • EPA intends to use information collected for potential future rulemaking under the Clean Water Act to establish effluent limitations guidelines, pre-treatment standards, and new source performance standards for the Organic Chemicals, Plastics and Synthetic Fibers (OCPSF) point source category
    • Open for comment until May 17
  • Ongoing. EPA continues its PFAS Multi-Industry Study on Wastewater Discharges
    • Goals of the study are to:
      • Identify industries and specific facilities producing and using PFAS compounds
      • Quantify amounts of PFAS being discharged
      • Identify PFAS control practices and treatment technologies
      • Document PFAS removal efficacy in wastewater
      • Estimate costs of PFAS treatment systems
    • Affected industries are:
      • OCPSF manufacturers
      • Pulp and paper manufacturers
      • Textiles and carpet manufacturers
      • Commercial airports
  • March 11, 2021. Revised proposal for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) published by EPA
    • Every five years, EPA uses the UCMR to monitor for highest priority unregulated drinking water contaminants and collect occurrence data
    • Occurrence data is used by EPA as basis for future regulatory determinations
    • Revised an earlier version of the UCMR 5, most significantly, by adding 23 PFAS chemicals to the originally proposed six PFAS chemicals
    • Final rule expected to be published in December 2021
    • Proposes requirement that Public Water Systems collect “occurrence data” for total of 29 types of PFAS chemicals from 2023-2025
    • December 2019, EPA published a new validated method to test for additional PFAS in drinking water. Under EPA Method 533 and EPA Method 537.1, EPA can now measure 29 PFAS chemicals
  • February 22, 2021. Final, revised Regulatory Determination for PFOA and PFOS issued by EPA under the Safe Drinking Water Act (SDWA)
    • First step to begin the process of developing national primary drinking water standards
    • Process takes years under the SDWA prescribed process
      • EPA must propose the drinking water standard within 24 months
      • EPA must then promulgate the standard within 18 months after the proposal
    • Standards include the Maximum Contaminant Level Goal (MCLG), the non-enforceable level at which no known or anticipated adverse health effects occur, with an adequate margin of safety
    • Standards also include the Maximum Contaminant Level (MCL), the enforceable standard applicable to public water suppliers, as close to MCLG as is “feasible” using best available technology or other means available, taking costs into consideration

Many of these proposed actions could have far-reaching and significant implications for many industries and businesses, as well as corporate and real estate transactions. Pressure for establishing enforceable standards continues to grow at the federal level, and, as noted below, many states continue to take more aggressive action in the absence of federal standards.  Stay tuned for more updates and guidance on the anticipated implications of ongoing PFAS regulatory and legislative activities.

PFAS Practice Tip:  More than 20 states are taking various actions to address PFAS impacts in their individual state, resulting in a patchwork of regulations and testing requirements. Be sure to check if your state has imposed, or is considering imposing, PFAS requirements affecting operations or remediation obligations.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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