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In June 2022, the U.S. EPA established interim updated health advisory levels (“HALs”) for PFOA (.004 ppt) and PFOS (0.2 ppt), which were previously set at 70 ppt individually or combined.  EPA also established final HALs for GenX (10 ppt) and PFBS (2,000 ppt).  EPA’s health advisories are non-enforceable and non-regulatory and provide technical information to states agencies and other public health officials on health effects, analytical methodologies, and treatment technologies associated with drinking water contamination. EPA has also taken the following actions:

  • On January 19, 2023, the EPA issued a notice soliciting public comments on its National Enforcement and Compliance Initiatives (NECI) for Fiscal Years 2024-2027, including a new NECI to address PFAS contamination that focuses on implementing the commitments to action made in EPA’s 2021-2024 PFAS Strategic Roadmap.  This new PFAS NECI would focus on identifying the extent of PFAS exposures that pose a threat to human health and the environment and pursuing responsible parties for those exposures. EPA aims to develop a CERCLA enforcement discretion and contribution protection settlement policy for PFAS contamination, and intends to focus enforcement efforts on PFAS manufacturers and federal facilities that could be significant sources of contamination. 
  • On December 5, 2022, the EPA proposed a rule aimed at enhancing reporting of PFAS data to the Toxics Release Inventory (TRI). Facilities that manufacture, process, or otherwise use TRI-listed chemicals above certain quantities must report TRI data to the EPA annually. Under the proposed rule, facilities that make or use TRI-listed PFAS will no longer be able to rely upon the de minimis exemption, which allowed TRI-reporting facilities to disregard certain minimal concentrations of chemicals in mixtures or trade name products (below 1% concentration for each TRI-listed PFAS, except for PFOA for which concentration is set at 0.1%). The proposed rule would list PFAS as “chemicals of special concern,” making them ineligible for the de minimis exemption. TRI-reporting facilities would thus be required to report on PFAS regardless of their concentration in products.
  • In August 2022, the EPA issued a proposal to designate PFOA and PFOS as hazardous substances under CERCLA. The proposed rulemaking would require entities to immediately report releases of PFOA and PFOS to the National Response Center, state or Tribal emergency response commission, and the local or Tribal emergency planning committee. However, entities would not be required to report past releases of PFOA or PFOS. 
  • June 6, 2022, EPA issued its first test order under EPA’s National PFAS Testing Strategy, a key component of the Agency’s PFAS Strategic Roadmap. Test orders under the Toxic Substances Control Act are the first step under the National PFAS Testing Strategy. The information from these initial orders will provide the Agency with critical information on more than 2,000 similar PFAS that fall within these categories.
  • In May 2022, EPA added five PFAS (PFHxS, PFNA, PFOS, PFOA, and GenX) to a list of risk-based values for site cleanups. These values, known as Regional Screening Levels and Regional Remedial Management Levels, help EPA determine if response or remediation activities are needed. EPA’s action provides the Agency with critical tools needed for Superfund and other Agency programs to investigate contamination.
  • In April 2022, EPA announced three clean water actions: (1) EPA proposed the first Clean Water Act aquatic life criteria for PFAS, focusing on PFOA and PFOS. These draft recommendations address EPA’s contentions regarding the toxicological effects of PFOA and PFOS on freshwater aquatic organisms. (2) EPA issued a memo to use its Clean Water Act permitting authorities to reduce discharges of PFAS at the source and to obtain more monitoring information on potential sources of PFAS. (3) EPA published a new draft method to measure for Adsorbable Organic Fluorine in water samples. This new method, known as draft EPA method 1621, can broadly screen for the presence of chemical substances that contain carbon-fluorine bonds, including PFAS.
  • On March 3, 2022, the EPA published the Fourth Regulatory Determinations in Federal Register, including a determination to regulate PFOA and PFOS in drinking water. With this action, EPA intends to develop a proposed national primary drinking water regulation for PFOA and PFOS.
  • On January 10, 2022, EPA submitted a proposed rule for review to the White House Office of Management and Budget to designate PFOA and PFOS as hazardous substances under CERCLA.
  • On December 27, 2021, EPA published the final fifth Unregulated Contaminant Monitoring Rule, which will require sample collection for 29 PFAS between 2023 and 2025. Consistent with EPA’s PFAS Strategic Roadmap, UCMR 5 will provide new data to improve EPA’s understanding of the frequency that 29 PFAS (and lithium) are found in the nation’s drinking water systems and at what levels.
  • On October 26, 2021, the EPA announced that it would initiate a rulemaking process to propose adding PFOA, PFOS, PFBS, and GenX as RCRA Hazardous Constituents. The addition of these PFAS substances as RCRA Hazardous Constituents is a necessary component of a hazardous waste listing determination under RCRA.
  • On October 18, 2021, EPA Administrator Michael S. Regan announced the PFAS Strategic Roadmap.  This document provides timelines for EPA actions agency-wide regarding PFAS, and sets forth “three central directives”: Research, Restrict, Remediate.  These directives intimate increased regulation of PFAS at the Federal level, including product and use restrictions, as well as the deployment of resources to treat and remediate PFAS in the environment.
  • On July 21, 2021, The PFAS Action Act of 2021 passed the lower chamber of the House with bipartisan support, 241-183. The legislation would require EPA to establish national drinking water standards for PFAS.
  • On July 12, 2021, EPA included PFAS in the draft of its latest list of water contaminants, which could lead to potential regulation of PFAS under the Safe Drinking Water Act.
  • On June 10, 2021, the EPA withdrew a compliance guide issued in January 2021 that weakened the Significant New Use Rule (SNUR) issued in July 2020, which among other things, prohibits companies from importing certain long-chain PFAS as part of a “surface coating” on articles without prior EPA review and approval. The compliance guidance limited what would be considered a “surface coating” subject to the SNUR, and after further review, the EPA determined that the guide inappropriately narrowed the scope and weakened the prohibitions included in the SNUR. Examples of articles that could contain the PFAS as part of a surface coating include, but are not limited to, automotive parts, carpet, furniture, and electronic components.
  • On May 19, 2021, the EPA announced an update to the Drinking Water Treatability Database with new references and treatment options for PFAS. The update is expected to help states, tribes, local governments, and water utilities make informed decisions to manage PFAS in their communities.
  • On April 27, 2021, the EPA called for the creation of a new “EPA Council on PFAS”. The Council is tasked with continuing the EPA’s work to understand potential risks caused by PFAS.
  • On April 8, 2021, the EPA released an updated toxicity assessment for PFBS, a member of the larger group of PFAS. The assessment helps the EPA, federal agencies, states, tribes, and local communities determine if and when it is necessary to take action to address potential health risks associated with human exposures to PFBS.
  • On February 20, 2020, EPA released an updated list of 172 PFAS chemicals subject to Toxics Release Inventory reporting as required by the National Defense Authorization Act for Fiscal Year 2020.
  • On February 20, 2020, EPA issued a supplemental proposal to ensure that new uses of certain persistent long-chain PFAS chemicals in surface coatings cannot be manufactured or imported into the United States without notification and review under the Toxic Substances Control Act (“TSCA”).
  • On September 25, 2019, EPA issued an advanced notice of proposed rulemaking that would allow the public to provide input on adding PFAS to the Toxics Release Inventory toxic chemical list.

In addition, several bills have been proposed in Congress requiring federal agencies to establish maximum contaminant levels for PFAS under the Safe Drinking Water Act, designate certain PFAS as hazardous substances under CERCLA, or impose further restrictions under other federal statutes such as TSCA and the Clean Water Act.