EPA Finalizes Rule to Regulate Six PFAS in Drinking Water

On April 8, 2024, EPA Administrator Michael Regan signed a final rule setting limits for six PFAS in drinking water. The rule, which will become effective 60 days after publication in the Federal Register, establishes maximum contaminant levels (MCLs) for PFOA (4 ppt), PFOS (4ppt), PFHxS (10 ppt), PFNA (10 ppt), HFPO-DA (10 ppt) and will apply a hazard index MCL of 1 to mixtures containing two or more of PFHxS, PFNA, HFPO-DA and PFBS.  It will also preempt any state standards that are less stringent than the new EPA rule.

Read the full Alert here.

EPA Proposes Two Rules That May Increase PFAS Corrective Action at RCRA-Permitted Facilities and the Risk of Citizen Suits

On January 31, 2024, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed two proposed rules under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984. The first, “Listing of Specific PFAS as Hazardous Constituents,” proposes to add nine per- and polyfluoroalkyl substances (PFAS) to the list of RCRA hazardous constituents. If listed, EPA would routinely consider those nine PFAS in assessments and, where necessary, in any corrective action at any facility that treats, stores or disposes of hazardous waste (referred to as TSDFs) or that includes such a facility as part of its manufacturing operations. Further, EPA’s listing of these nine PFAS as hazardous constituents brings these substances a step closer to being listed as hazardous waste under the RCRA and as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund.

The second proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units,” aims to “clarify” that TSDFs are required to conduct corrective action to address releases of “hazardous constituents” and any substance meeting the statutory definition of “hazardous waste,” see 42 U.S.C. § 6903(5), regardless of whether that substance has been specifically listed as a hazardous waste in the regulations. While this rule does not address PFAS directly, if adopted, it would bolster EPA’s claim of authority to use RCRA corrective action at permitted facilities to address not only listed hazardous waste and constituents—including the nine PFAS identified in the first proposed rule—but also emerging contaminants, such as unlisted PFAS, if it can be shown that they meet the statutory definition of “hazardous waste.” In addition to increasing the risk of EPA enforcement, adoption of these rules (and potential further listing of these substances as hazardous waste) increases the risk of citizen suits against TSDFs or others alleging permit or regulatory violations or alleging that an imminent and substantial endangerment to health or the environment exists.

Click here to view the full ALERT on the Duane Morris website.

EPA to Host CERCLA PFAS Enforcement Listening Sessions

The EPA has announced that it will host two public listening sessions “to seek individual input on concerns about enforcement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for per- and polyfluoroalkyl substances (PFAS) contamination.”

According to the EPA’s announcement, the sessions will focus on “enforcement policy related to responsible parties’ financial obligations under PFAS contamination response actions.”  The input will be considered by the Agency in drafting a CERCLA PFAS enforcement discretion policy.  That policy is intended to clarify when EPA intends to use its CERCLA enforcement authorities or its CERCLA enforcement discretion, to the extent PFAS cleanup enforcement efforts occur under CERCLA.  According to the EPA:

The policy will take into account various factors, such as EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment, and EPA’s intention to not focus on pursuing entities where factors do not support taking an enforcement action.

The announcement does not provide any insight into what the EPA considers to be “significant amounts of PFAS” or what other “various factors” will be considered when deciding whether to take an enforcement action.  Presumably, these factors will be discussed at the listening sessions.

These listening sessions are not intended to seek comment on EPA’s perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) hazardous substance designation rulemaking process. That rulemaking comment period has closed.  The EPA has yet to issue a final rule on the matter, although the fact that EPA is working on a CERCLA PFAS enforcement discretion policy hints that the rule may be coming soon.

The sessions are scheduled for Tuesday, March 14, 2023 from 1:00 p.m. to 3:00 p.m. (EST) and Thursday, March 23, 2023, from 10 a.m. to noon (EST).  The sessions will also be recorded and made available on the EPA’s enforcement webpage.

You can register for the sessions using the links on this WEBSITE.   You can also submit written remarks on or before March 31, 2023 using the links on that same page.

Check back after the session dates for a summary of the discussion!

New Jersey and PFAS Regulation — What’s Come Before and What Does 2023 Have in Store?

From 2018 through 2020, the New Jersey Department of Environmental Protection (the Department or NJDEP) adopted a suite of new rules to address certain per- and polyfluoroalkyl substances (PFAS), specifically, PFOA, PFOS and PFNA, under multiple Department programs. Since that time, the Department continued to advance additional measures targeting these compounds under the auspices of its regulatory and enforcement authorities. More recently, the New Jersey Legislature has taken aim at these and other PFAS, expanding the scope of certain existing laws and introducing a collection of new bills regulating the use, detection and research of PFAS throughout the State. Here’s an overview of the current regulation of PFAS in New Jersey and what to expect in 2023.

Drinking Water Maximum Contaminant Levels

New Jersey was at the forefront of regulating PFAS in drinking water, being one of the first states to propose and adopt regulations setting a maximum contaminant level (MCL) for PFNA (13 parts per trillion (ppt)) in 2019, followed closely by the adoption of MCLs for PFOA (14 ppt) and PFOS (13 ppt) in 2020. These regulations require public water systems to routinely monitor for these contaminants, notify their customers of any violation within 30 days of determining that a violation has occurred, and report MCL violations to the public in their annual Consumer Confidence Reports.

Because the current New Jersey MCL regulations apply to public water systems only, New Jersey also expanded the testing of private wells under the Private Well Testing Act (PWTA), to address PFOA, PFOS and PFNA. The PWTA requires the testing of private potable wells prior to closing the sale of the property and also requires landlords to test private potable wells every five years and provide those test results to their tenants. As of December 2021, PFOA, PFOS and PFNA were added to the PWTA list of water quality parameters required to be tested.

New Jersey’s MCLs for PFOA and PFOS could change in 2023. The United States Environmental Protection Agency (US EPA) anticipates issuing a proposed National Primary Drinking Water Regulation for PFOA and PFOS in 2023. The proposal, which is expected in March, will include a maximum contaminant level goal (which is unenforceable) and an enforceable standard, which may be an MCL or a required treatment technique. In the event the US EPA adopts an MCL for PFOA or PFOS that is lower than the standard adopted by New Jersey, the US EPA MCL will apply (as would any treatment technique that it may require). US EPA anticipates finalizing the drinking water regulation by year-end. Continue reading “New Jersey and PFAS Regulation — What’s Come Before and What Does 2023 Have in Store?”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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