On February 20 and 24, 2020, the EPA announced three developments under its action plan for per- and polyfluoroalkyl substances (PFAS Action Plan).
The action that has spurred the most interest is the Agency’s preliminary determination to regulate perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), the two most widely studied PFAS, under the Safe Drinking Water Act (SDWA). Under the Toxic Substances Control Act (TSCA), the EPA has also issued a supplement to a proposed Significant New Use Rule (SNUR) for long-chain PFAS chemicals in surface coatings. The third action provides a list of PFAS subject to reporting under the Toxics Release Inventory (TRI) of the Emergency Planning and Community Right-to-Know Act (EPCRA).
Phased Out but Durable
PFAS are manufactured chemicals that are chemically and thermally stable and, hence, have been used to enhance the durability of many products. PFAS are highly persistent in the environment. Among the thousands of PFAS that have been manufactured, PFOA and PFOS were detected in the blood serum of up to 99 percent of samples collected between 1999 and 2012 from a population that is representative of the United States. In the PFAS Action Plan, the EPA committed to leading the national effort to understand PFAS and reduce the risks they pose to the public.
The Agency notes that its 2010/2015 PFOA Stewardship Program has been effective in getting eight major chemical manufacturers and processors to agree to phase out the use of PFOA and PFOA-related chemicals in their products and emissions from their facilities.
“While companies participating in the PFOA Stewardship program report that they no longer produce or use PFOA domestically, PFOA may still be produced domestically or imported or used by companies not participating in the PFOA Stewardship Program,” states the Agency. “In addition, PFOA and PFOS can also be present in imported articles.”
SDWA
The SDWA requires that every 5 years, the EPA publish a Contaminant Candidate List (CCL). In the CCL, the Agency explains why it believes certain drinking water contaminants either should be or need not be regulated and requests public comment on these preliminary regulatory determinations. If any CCL contaminant meets specific criteria, the Agency must publish a proposed Maximum Contaminant Level Goal (MCLG) and a National Primary Drinking Water Regulation (NPDWR) within 24 months. After the proposal, the Agency must publish a final MCLG and promulgate a final NPDWR within 18 months.
In the current action, the EPA makes the preliminary determinations to regulate PFOS and PFOA and to not regulate six other substances—1,1-dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene, and Royal Demolition eXplosive (RDX).
“The EPA has preliminarily determined that PFOA and PFOS may have an adverse effect on human health; that PFOA and PFOS occur in public water systems (PWSs) with a frequency and at levels of public health concern; and that regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for persons served by PWSs,” states the Agency.
TSCA
In January 2015, the EPA proposed a SNUR for certain long-chain PFAS, including PFOA. Under a SNUR, any person who manufactures or imports a specific chemical substance for a significant new use must notify the EPA at least 90 days before commencing either of those actions.
Articles that contain chemical substances that are not intended to be removed and have no separate commercial purpose are generally exempt from TSCA. However, in the 2015 proposal, the EPA sought to require notification of significant new uses from persons who import a subset of PFAS as part of all articles. Now, in the supplemental proposal, the Agency is seeking to narrow the category of articles to which the proposed SNUR would apply to those where long-chain PFAS are part of a surface coating. The supplemental proposal notes that the use of PFOA in surface coatings has been phased out in the United States, but the import of articles with PFOA in their coatings into the United States for new uses has continued.
The Agency is proposing this action to be responsive to the article consideration provision in the 2016 TSCA amendments, which state that articles can be subject to notification requirements as a significant new use provided the EPA makes an affirmative finding in a rule that the reasonable potential for exposure to a chemical from an article or category of articles justifies notification.
The EPA proposes to make the exemption inapplicable for import of PFOA articles because the Agency believes there is reasonable potential for exposure to PFAS if it is part of surface coatings on articles imported into the United States.
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EPCRA
The National Defense Authorization Act for Fiscal Year 2020 (NDAA) added 14 PFAS to the TRI list. The NDAA also provided two criteria the EPA is to use to place additional PFAS on the list. Based on these two provisions, the EPA initially identified 160 PFAS subject to TRI reporting. Following review of the list and in response to comments from stakeholders, the EPA removed 12 PFAS that did not meet the structural definitions in the Agency’s regulations and added 24 PFAS that do meet those definitions.
“These 24 additional PFAS were included on this updated list because (1) their structure meets the PFAS category definition provided by 40 CFR 721.10536 or (2) though the name of the PFAS does not indicate a specific chain length, its chain length could fit within a definition provided by 721.10536,” states the Agency.
All 172 PFAS must be included in TRI reports due by July 1, 2021.
The original list of 160 PFAS and the lists of PFAS deleted and added can be found here.