PFAS Announcement; Administrator Zeldin Signals Continuation of EPA Objectives

Drinking Water

Perhaps the most consistent theme in the EPA’s Statement is the stated importance of addressing PFAS impacts to public drinking water sources and drinking water systems.  For example, the EPA Statement highlights EPA’s commitment to the following priorities to address PFAS concentrations both in drinking water itself and to curtail upstream releases that could potentially impact drinking water sources:

• Address the most significant compliance challenges and requests from Congress and drinking water systems related to national primary drinking water regulations for certain PFAS;

• Enforce Clean Water Act and Toxic Substances Control Act (“TSCA”) limitations regarding PFAS use and release to prevent further contamination;   
• Use Safe Drinking Water Act authority to investigate and address immediate endangerment;  
• Develop Effluent Limitations Guidelines (“ELGs”) for PFAS manufacturers and metal finishers and evaluate other ELGs necessary for reduction of PFAS discharges; and
• Advance remediation and cleanup efforts where drinking water supplies are impacted by PFAS contamination. 

The question that remains unresolved with respect to drinking water is whether EPA will maintain or modify the Maximum Concentration Limits (MCLs) that it established for six PFAS substances in 2024.  The cost and implementation challenges of those MCLs has been the source of significant discussion and concern from public drinking water systems as well as from environmental groups, and it is the subject of ongoing litigation, so any further actions by EPA in that space will be closely scrutinized.

Site Investigation and Remediation

Importantly, EPA’s Statement is silent as to whether EPA will modify or rescind the designation of PFOA and PFOS as Hazardous Substances under CERCLA.  Instead, the EPA Statement confirms the following about EPA’s approach to site investigation and remediation for PFAS, which reflects a focus on improving available tools and technology to address PFAS contamination:

• Provide more frequent updates to the PFAS Destruction and Disposal Guidance —changing from every three years to annually — as EPA continues to assess the effectiveness of available treatment technologies;
• Increase the development of testing methods to improve both detection and strategies to address PFAS;
• Work with Congress and industry to establish a clear liability framework that operates on a “polluter pays” principle and serves to protect passive receivers;
• Work with states to assess risks from PFAS contamination as well as to develop analytical and risk assessment tools;  
• Provide assistance to states and tribes regarding enforcement efforts; and
• “Resource and support investigations” into violations to hold polluters accountable.

The points above suggest -- but do not expressly confirm -- that EPA intends to maintain the current CERCLA designations and plans to work with Congress and stakeholders to codify exemptions for passive receivers of PFAS compounds, while still investigating and enforcing cleanup actions against entities that caused the release of PFAS compounds.  Senator Shelley Capito (WV-R), Chair of the Senate Environment and Public Works Committee, has been advocating for legislation to address those concerns, so this EPA Statement may be an indication of support for those efforts.

The EPA Statement also suggests that EPA may explore its waste authority under the Resource Conservation and Recovery Act (“RCRA”) as a means of regulating the release of PFAS in waste streams and as a driver for corrective action.  Specifically, EPA’s Statement indicates that EPA will evaluate how to better use EPA’s authority under RCRA to address releases and disposals from manufacturing operations of both producers and users of PFAS. 

There are two pending Biden-era rules that were proposed under RCRA: 1) list nine PFAS compounds as Hazardous Constituents under RCRA; and 2) expand the definition of “Hazardous Waste” to allow EPA to order RCRA corrective action for Hazardous Constituents.  EPA’s Statement suggests that EPA may revisit and proceed with those actions, but the timing remains unclear.

TSCA Rule 8(a)(7)

A consistent question from industry groups has been whether EPA would revisit the requirements of TSCA Rule 8(a)(7), a broad-sweeping rule that requires wide ranging reporting of PFAS compounds manufactured or imported in the United States dating back to 2012, including PFAS contained in imported finished goods (imported articles).  EPA’s Statement indicated the following:  “Implement section 8(a)7 to smartly collect necessary information, as Congress envisioned and consistent with TSCA, without overburdening small businesses and article importers.”  

EPA’s Statement suggests that EPA will maintain some of those obligations, but may make some substantive revisions.  For example, the language suggests that EPA will: (1) exempt small businesses entirely or further reduce their reporting obligations; and (2) remove article importers from the list of reporting entities.  The latter change will have an enormous impact on the number of businesses subject to reporting, and it will significantly limit the amount of information that EPA will receive.

Regulation of Air Emissions

As noted in BCLP’s recent insight, regulation of PFAS in air emissions is a developing field, and the EPA Statement indicates the Trump Administration’s intention for EPA to move forward on a number of efforts to:

• Launch additional efforts regarding air related PFAS information collection and measurement techniques related to air emissions; and
• Review and evaluate any pending state air petitions.  Notably, EPA’s Statement did not elaborate further upon this point, providing no additional clarity for businesses at this time.

Biosolids

Biosolids have been a recent area of focus particularly with respect to disposal and/or land application activity.  EPA’s Statement indicates that EPA will continue to work towards an understanding of the potential risks posed by PFAS in biosolids, with a priority being to complete the public comment period for biosolids risk assessment and determine a regulatory path forward based on comments received.  

The biosolids related risk determination and intention to enter a public comment period connects some of the prior points regarding EPA’s enforcement priorities, and the Agency’s stated interest in protecting passive receivers of PFAS compounds, particularly in the agricultural sector.

Conclusion

EPA’s Statement confirms that PFAS is not an area currently slated for significant rolled back rulemaking, and rather confirms some of the intended rulemaking and enforcement priorities.  For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage.  If you have a question about how to manage PFAS risk in this federal landscape, contact Tom Lee, Erin Brooks, Bryan Keyt, John Kindschuh, or any other member of our PFAS team at BCLP.