In recent years, the regulatory approach to per- and polyfluoroalkyl substances (PFAS) has been dynamic and increasingly proactive at the federal level. EPA is taking a lifecycle approach to PFAS by focusing on not only the existing pollution but also the prevention of new contamination. PFAS are often called “forever chemicals” because of their tendency to persist in the environment once released. With this in mind, prevention of releases and reduction of PFAS usage are perhaps more important than the current focus on remediation. The EPA’s approach is to hold contributors accountable, ensure science-backed decision making, and prioritizing the protection of disadvantaged communities.
What are PFAS?
PFAS are a large group of over 4700 synthetic chemicals that are not found naturally in the environment. Exposure to PFAS chemicals has been linked to an increased risk of certain cancers, reduced vaccine efficacy, harm to development and reproductive system, and harm to the immune system.
Where are PFAS found?
Since production began in the 1940s, PFAS has been used in a broad range of consumer products and industrial applications. PFAS are often trace constituents that do not appear on Safety Data Sheets (SDSs) but can be detected in analysis.
Some examples within industry are:
- Metal Plating and Etching: Corrosion prevention, surfactant, electroplating, post plating cleaner
- Semiconductor and Electronics:: Photoresists, surfactants, top anti-reflective coatings, bottom anti-reflective coatings, and etchants
- Industrial Surfactants, Resins, Molds, Plastics: Manufacture of plastics, composite resins, and flame retardant
- Gaskets and equipment components used in industrial process operations
What’s changed in recent years?
The EPA Council of PFAS was established in April 2021 and tasked to develop an agency-wide strategy to address PFAS. The Biden-Harris administration’s Plan to Combat PFAS Pollution was published in October 2021. The plan intends to improve methods to detect PFAS in water, reduce PFAS discharges into waterways, and protect fish and aquatic ecosystems. As part of President Biden’s Bipartisan Infrastructure Deal and Build Back Better Agenda, funding is dedicated to addressing PFAS contamination in drinking water.
In October 2021, the EPA announced the PFAS Strategic Roadmap of current and planned activities in 2021-2024. In order to limit PFAS in drinking water, the EPA has begun developing a national primary drinking water regulation and taking actions to stop the discharge of PFAS in waterways and wastewater systems. In September 2021, the EPA announced the first draft single-laboratory validated method for testing PFAS in wastewater, surface water, groundwater, and soils
How might some of the Key Actions of the PFAS Strategic Roadmap affect your company?
Enhance PFAS reporting under the Toxics Release Inventory (TRI)
For Reporting Year 2021 (forms due by July 1, 2022), 176 PFAS are reporting. This includes 4 PFAS automatically added by the National Defense Authorization Act (NDAA) beginning with RY 2021. Facilities in TRI-covered industry sectors should track and collect data on these chemicals. EPA intends “to categorize the PFAS on the TRI list as “Chemicals of Special Concern” and to remove the de minimis eligibility.” The list of PFAS subject to TRI will be frequently updated with additional PFAS added to TRI in 2022. If your company is in Massachusetts, the Massachusetts Department of Environmental Protection has added additional PFAS to its Toxics Use Reduction Act (TURA) reportable chemicals list as a category “Certain PFAS, Not Otherwise Listed” which will be reportable by July 1, 2023.
Leverage NPDES permitting to reduce PFAS discharges to waterways
The National Pollutant Discharge Elimination System (NPDES) program will be utilized by EPA to reduce discharges of PFAS at the source and gather more information through monitoring. Facilities where PFAS are expected or suspected to be present in wastewater and stormwater discharge will be affected. Companies with Federally-issued NPDES permits will be required to perform monitoring at facilities using EPA’s recently published draft analytical method 1633. EPA proposes that NPDES permits contain conditions for product elimination and substitution, require best management practices, require enhanced public notification and engagement, and require pretreatment programs to include source control and best management practices. These actions are especially important to dischargers located in Massachusetts and New Hampshire because all NPDES permits are federally-issued in those states. In addition to direct action on federally-issued permits, EPA will issue new guidance recommending state-issued permits to include monitoring requirements using analytical method 1633.
Restrict PFAS discharges from industrial sources through a multi-faceted Effluent Limitations Guidelines program
Effluent Limitations Guidelines (ELGs) limit pollutants from entering waterways. EPA is working to make changes in its ELG regulatory actions by the end of 2024 for certain industrial categories, which include: organic chemicals; electroplating; metal finishing; electrical and electronic components; and textile mills.
Designate certain PFAS as CERCLA hazardous waste
A Notice of Proposed Rulemaking to designate PFOA and PFOS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances would require facilities to report on these PFAS releases that meet or exceed the reportable quantity assigned to these substances.
Ensure robust review process for new PFAS
EPA’s Toxic Substances Control Act (TSCA) New Chemicals program ensures the safety of new chemicals before allowing them into U.S. commerce. EPA has taken steps to ensure new PFAS will be rigorously reviewed and appropriate safeguards will be identified. EPA intends to deny most pending and future low-volume exemption (LVE) submissions for PFAS.
Review previous decisions on PFAS
EPA is reviewing PFAS that were previously reviewed through TSCA’s New Chemical program to reevaluate regulatory decisions and address those that aren’t sufficiently protective. Companies are encouraged to voluntarily withdraw previously granted PFAS LVEs through a stewardship program. PFAS will be required to be reviewed before being used in new ways. Rigorous safety requirements would be required in order to allow significant new use to commerce.
Build the technical foundation to address PFAS air emissions
The Clean Air Act requires EPA to regulate hazardous air pollutant (HAPs) emissions. PFAS are not currently listed as HAPs but the EPA is developing a technical foundation to inform future decisions. EPA will identify sources of PFAS air emissions, develop monitoring approaches for measuring stack emissions and ambient concentrations of PFAS, develop mitigation technologies, and increase understanding of the fate and transport of PFAS air emissions.
How We Can Help
Capaccio has helped clients navigate regulations, reporting, and chemical usage for 30 years. With the increased focus on PFAS, Capaccio is prepared to assist our clients in reporting the usage of PFAS, detecting the presence of PFAS through sampling and analysis programs, and tracking progress to meet regulatory standards as they evolve. Capaccio has experience facilitating discussions with companies and their chemical suppliers to identify PFAS as well as supporting our clients through permits and reporting.