We are once again eager to share our takeaways from the Environmental Law Institute’s (ELI) monthly PFAS webinar. This month’s speakers provided an in-depth discussion on the EPA’s recent announcement that established Maximum Contaminant Levels (MCLs) for six PFAS: PFOA, PFOS, PFHxS, PFNA, and HFPO-DA, as well as mixtures containing two or more of PFHxS, PFNA, HFPO-DA, and PFBS. This very informative session went beyond the immediate effects of this designation and, instead, largely focused on what is still in store for PFAS regulatory action. The theme that resonated most with us is that this decision is just the beginning.
Setting Maximum Contaminant Levels (MCLs) in drinking water is a significant step in the EPA’s efforts to address PFAS . Via EPA.gov
As we learned last week, approximately a week after it announced these MCLs, the EPA designated PFOA and PFOS as CERCLA Hazardous Substances. This aligns with a point made by a panelist who noted that the Clean Water Act (CWA) often serves as the first point of entry for regulation, with other federal regulatory decisions typically following in short order. Moreover, we can also expect that this ruling will generate significant momentum that extends beyond the federal level. The panelist described a pattern in which the EPA makes its regulatory decision, individual states follow with their own newly adopted or more stringent measures, and then increased litigation follows suit. So, for PFAS, although a handful of individual states have heretofore driven regulatory action, we can anticipate that state action will now likely constitute a mix of newly adopted regulations and increasingly stringent ones. This is all to say that, while challenges remain (especially for PFAS disposal), potentially responsible parties (PRPs) cannot simply ignore PFAS without risking significant liability.
Additionally, the MCLs will likely change as the science evolves. Previously, some states advised PFAS MCLs as high as 70 parts per trillion (ppt), subsequently lowered to 10 ppt. Now, the EPA advises 4 ppt for PFOA and PFAS. What changed? Our ability to reliably measure PFAS contamination at such low levels, as well as the concentration now understood to be a threat to human health. This pattern of increasingly lower MCLs is expected to continue, which means that all parties should be proactive. For example, as a panelist noted, public water systems not only face the challenge of monitoring PFAS contaminant levels but will be expected to provide public notice when levels exceed 4 ppt, as well as contain, filter, and ultimately reduce those levels. However, foresight is key. Not only should public water systems plan for the current regulatory environment, but they should also anticipate a situation in which MCLs are lowered.
Collectively, the current and forthcoming regulatory action will likely create a large data set that will disclose where PFAS was introduced and how it was used. For example, National Pollutant Discharge Elimination System (NPDES) permits will now include PFAS. Moreover, as EPA now requires reporting and record keeping for PFAS under the Toxic Substance Control Act (TSCA), those who have manufactured or continue to manufacture PFAS or PFAS-containing products must disclose “information regarding PFAS uses, production volumes, disposal, exposures, and hazards” for every year since 2011.
We expect to be utilizing these emerging data sets and associated records for years to come as we regularly assist our clients in documenting historical manufacturing, processing, usage, and disposal of PFAS end-products.