EPA is working on a number of initiatives to regulate PFAS pursuant to the EPA PFAS Action Plan, and a number of timelines have been put in place as a result of the late 2019 enactment of the National Defense Authorization Act for Fiscal Year 2020 (“NDAA”), see generally Sections 7301-7362. However, as of February 2020, PFAS are largely not regulated by EPA.
As of February 2020, the status is as follows:
- There is no federal Maximum Contaminant Level (MCL) or drinking water standard for any PFAS. However, under the NDAA, public water systems serving more than 10,000 persons (and potentially smaller systems, if adequate appropriations are made) must monitor for certain PFAS. NDAA § 7311.
- EPA has set a regional screening level (“RSL”) for PFBS (Perfluorobutane sulfonate and Perfluorobutane sulfonic acid) of 400 µg/L (parts per billion) in tap water and 0.13 mg/kg (parts per million) in soil. See, https://www.epa.gov/risk/regional-screening-levels-rsls-generic-tables
- EPA has an interim recommended screening level for PFOS and PFOA in groundwater at CERCLA and RCRA sites of 40 ppt (parts per trillion). See, https://www.epa.gov/pfas/interim-recommendations-addressing-groundwater-contaminated-pfoa-and-pfos
- PFAS are not designated as hazardous substances under CERCLA but in in some circumstances PFAS could be responded to under CERCLA as pollutants or contaminants.
- PFAS chemicals are required to be reported to EPA under TSCA. According to EPA, as of February 2020, 330 non-CBI PFAS chemicals and 148 CBI PFAS chemicals have been reported to EPA under TSCA. Further, the NDAA requires EPA to promulgate a rule by January 1, 2023 to require TSCA section 8(a) reporting by anyone who has manufactured a substance that is a PFAS compound in any year from 2011 forward. NDAA § 7351.
EPA Proposed Rulemaking:
- On February 20, 2020, EPA published a regulatory determination that could be a step toward some form of drinking water standard for PFOA and PFOS in the next few years.
- On December 4, 2019, U.S. EPA published in the Federal Register an advance notice of proposed rulemaking soliciting information as part of EPA’s consideration of a future rule adding certain PFAS to the list of toxic chemicals subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act (“EPCRA”) and Section 6607 of the Pollution Prevention Act (“PPA”). However, note that the NDAA added a number of PFAS, including PFOA and its associated salts, PFNA, PFOS and its associated salts, PFHxS, and GenX, to the list effective January 1, 2020, with a reporting threshold of 100 pounds; for these PFAS, usage data must be collected in 2020, and reported by July 1, 2021. NDAA § 7321. EPA has released an updated list of a total of 172 PFAS that are subject to reporting.
- On February 20, 2020, EPA proposed amendments to Significant New Use Rules that would further limit the manufacture and importation of long-chain PFAS.
EPA Health Advisory Level
- EPA has issued a Health Advisory Level (HAL) for PFOA and PFAS of 70 ppt. A HAL is a non-regulatory, advisory level at or below which adverse health effects are not anticipated to occur.
EPA Interim Recommendations for Groundwater Clean-up Goals
On December 19, 2019, U.S. EPA issued interim recommendations to address groundwater contaminated with PFOA and PFOS. The interim recommendation set a screening level of 40 ppt for both PFOA and PFOS and recommended a preliminary remediation goal (“PRG”) for groundwater that is a current or potential source of drinking water for PFOA and PFOS of 70 ppt, which is the HAL, if there is no state or tribal MCL in place.
https://www.congress.gov/116/bills/s1790/BILLS-116s1790enr.pdf (NDAA §§ 7301-7362)