Focus on EPA

Over the past several weeks, there has been a significant level of EPA activity regarding PFAS, including:

• Proposed Rule on Enhanced PFAS Reporting Requirements for Toxics Release Inventory (“TRI”): On December 5, 2022 EPA proposed a new rule to add PFAS to the list of Lower Thresholds for Chemicals of Special Concern. This rule would effectively eliminate a currently available exemption that allows facilities to forgo TRI reporting when PFAS chemicals are used in de minimis EPA’s proposal would also limit the ability of facilities to use of range reporting for PFAS chemicals.
  
  This proposed rule has the potential to have broad impacts across industries because PFAS are often used at low concentrations that fall within the current exemption. Even if they do not ultimately have to report, the rule will now likely require numerous users to undertake investigations to determine whether their operations are now reportable. More information of this rule and timing regarding comments is available on EPA’s webpage.

• EPA Soliciting Comments on Proposed Toxic Substances Control Act (“TSCA”) PFAS Reporting Rule: Back on June 28, 2021, EPA announced a proposed rule that would require all manufacturers of PFAS in any year since 2011 to report extensive information related to chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal, as well as imposing a required document retention period related to such materials. The economic information accompanying the proposed rule suggested that very few small businesses would be impacted, but did not include an estimate of costs for small entity importers of articles because it was “unable” to do so. This spurred extensive commentary—including over 110 unique comments—primarily expressing concerns that the burden and cost of complying outweighed the potential benefits of the proposed rule. These comments led EPA to convene a Small Business Advocacy Review Panel, prepare an Initial Regulatory Flexibility Analysis, and update the Economic Analysis of the proposed rule—resulting in a significant increase in estimated regulatory and compliance costs than initially reported. The new estimate for small businesses exceeds $860 million. On November 25, 2022, EPA solicited additional public comment following the release of these new analyses. It is important to note that EPA has asked for comment on whether to add a range of exemptions, including R&D, byproducts, impurities, recycling, intermediates, as well as business size and volume thresholds. Incorporation of many of these exemptions could significantly narrow the scope of the rule. Companies who might benefit from a more tailored rule may want to submit supporting comments by the December 27, 2022 deadline.

We will continue to monitor the public comments regarding each of these reporting rules and include notable updates in future issues.

• EPA Publishes Final Rule Incorporating ASTM Standard for Phase I Environmental Site Assessments: Back in May we discussed the ongoing saga regarding EPA’s incorporation by reference of ASTM International’s 2021 version of its Standard Practice for Phase I Environmental Site Assessments, in which ASTM added PFAS as a “non-scope” consideration. Those “non-scope” considerations include issues that an environmental investigator is not explicitly required to investigate in a standard Phase I assessment, but that could give rise to business environmental risk and can be investigated as part of the Phase I assessment if desired. EPA had published a rule in March that would formally recognize the new Phase I standard as satisfying EPA’s “all appropriate inquiries” (AAI) requirements under CERCLA, but that rule reverted to a proposal status given receipt of several adverse comments. We can now report that this chapter has come to an end, with EPA adopting the final rule that incorporates by reference the (now not so) new ASTM Phase I standard, effective as of February 13, 2023. In the final rule, EPA accepted recommendations to sunset use of the 2013 version of the ASTM standard – that version will no longer satisfy the AAI rule as of February 13, 2024. However, EPA declined to limit the scope of the new standard, noting that “[i]ndustry standards may include elements that are not within the scope of the [AAI] Rule. Therefore, EPA does not consider these additional elements as a reason to avoid recognition of the revised [ASTM] standard as compliant with the [AAI] Rule.”
• EPA Identifies More than 10,000 PFAS as Potential Drinking Water Risks: EPA issued the final version of its Drinking Water Contaminant Candidate List 5, in which EPA included all PFAS fitting a structural definition described below. Under the Safe Drinking Water act, EPA must publish every five years a list of currently unregulated substances that “may pose risks for drinking water” and are known or anticipated in public drinking water systems. EPA must then make regulatory determinations on at least five of the listed substances as to whether they warrant primary drinking water standards. The group of PFAS listed includes those that have at least one of the following structures:
  • R-(CF2)-CF(R')R'', where both the CF2 and CF moieties are saturated carbons, and none of the R groups can be hydrogen.
  • R-CF2OCF2-R', where both the CF2 moieties are saturated carbons, and none of the R groups can be hydrogen.
  • CF3C(CF3)RR', where all the carbons are saturated, and one of the R groups can be hydrogen.

As if the structural definitions were not daunting enough, the linked list of PFAS EPA considers within the structural criteria has 10,239 entries. Based on this list, EPA gave itself plenty of options to consider for drinking water regulations.

• EPA Publishes “A Year in Review” on its PFAS Initiatives: EPA released a “A Year in Review” report wherein the Agency detailed what it viewed as its significant milestones in advancing the objectives described in the PFAS Strategic Roadmap, highlighting seven “key actions” in 2022:

1. 1. Proposed designating two PFAS as CERCLA hazardous substances;
   2. Released drinking water health advisories;
   3. Laid the foundation for enhancing data on PFAS;
   4. Began distributing $10 billion in funding to address emerging contaminants under the Bipartisan Infrastructure Law (BIL);
   5. Expanded the scientific understanding of PFAS;
   6. Translated the latest science into EPA’s cross-agency PFAS efforts; and
   7. Engaged with the public.

EPA also previewed some of its PFAS priorities in 2023, including:

• Taking the final step to designate PFOA and PFOS as hazardous substances under CERCLA;
• Completing additional CERCLA designations;
• Proposing additional reporting and data collection rules to enhance publicly available data and information concerning the use of PFAS;
• Releasing guidelines on PFAS discharges, including monitoring and reporting obligations;
• Finishing a full risk assessment on PFOA and PFOS in biosolids for publication in 2024; and
• Enhancing tools like EJSCREEN and other similar publicly available analytical tools.

This newsletter will be sure to follow these events as they unfold over the course of 2023.