Jan 62022

EPA Takes Two New Actions on PFAS

Samuel B. Boxerman and Marshall R. Morales
, , , ,

The U.S. Environmental Protection Agency (EPA) took two important actions in late December 2021 related to per- and polyfluoroalkyl substances (PFAS), a class of chemicals receiving increasing legislative and regulatory scrutiny in recent years. The two actions relate to drinking-water monitoring data and to toxicity and human-health testing data.

First, on December 20, EPA issued a rule to establish nationwide monitoring for 29 PFAS and lithium in drinking water. The Unregulated Contaminant Monitoring Rule (UCMR 5) for Public Water Systems — finalized on December 20, 2021, and issued under the Safe Drinking Water Act — is part of EPA’s PFAS Strategic Roadmap. The UCMR process is conducted every five years to provide additional data on contaminants that are not regulated.

Under the new rule, most public water systems will collect new data on 29 PFAS over a 12-month period from 2023 through 2025. EPA anticipates using the data to understand the presence of PFAS in drinking water and potential patterns of contamination. Sampling for these 29 PFAS were addressed Section 7311 of the National Defense Authorization Act for fiscal year 2020, which specified that EPA must include all PFAS in UCMR 5 for which a drinking water method has been validated but that are not subject to national primary drinking water regulation.

Second, on December 28, EPA granted an October 2020 petition from six North Carolina public health and environmental justice organizations to compel companies to conduct testing of 39 different PFAS and 15 other chemicals. By granting the petition, EPA moves toward using authority under Section 4 of the Toxic Substances Control Act, 15 U.S.C. § 2603, to require recipients of test orders to conduct and fund toxicity and health studies. The Trump administration EPA had denied the petition in January 2021. While the granted petition will likely affect only those companies that receive a testing order, this action heralds continued aggressive action by this EPA to develop more data about PFAS to support further regulation.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Marshall R. Morales

Washington, D.C.

mmorales@sidley.com

You might also like
Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA

On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.

U.S. EPA Proposes Nine PFAS Compounds as Resource Conservation and Recovery Act Hazardous Constituents

The Environmental Protection Agency (EPA or the Agency) is proposing to expand its authority under the Resource Conservation and Recovery Act (RCRA), including to extend its corrective action powers over an additional list of per- and polyfluoroalkyl substances (PFAS). Specifically, as part of the EPA PFAS Strategic Roadmap, EPA has prioritized development of a framework to regulate PFAS. In the June 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda), which lists federal agencies’ planned “short-term” and “long-term” regulatory actions, EPA included the short-term action of a proposed rule listing certain PFAS as hazardous constituents under RCRA.

The Enforcement Angle: David Uhlmann and OECA

Join Sidley for the Environmental Law Institute’s People Places Planet Podcast series, “The Enforcement Angle.” Through this series, Sidley partners discuss state and federal enforcement of environmental laws and regulations with senior enforcement officials and thought leaders on environmental enforcement in the United States and globally. The featured guests offer their insights into the challenging environmental issues facing corporations today.