A Report on Federal Actions Affecting PFAS

Introduction

Earlier this year, we provided an update on important provisions relating to per- and polyfluoroalkyl substances (PFAS) embedded in the National Defense Authorization Act (NDAA or Defense Authorization bill) for Fiscal Year (FY) 2020. Since then, the Environmental Protection Agency (EPA) and the US Congress have continued to take action to regulate PFAS and address the presence of such substances in the environment. Some of these actions are among the PFAS-related mandates in the FY 2020 NDAA; however, EPA also has taken certain actions independent of any legislative mandate. Notably, EPA finalized several actions that already impact the manufacturers and users of certain PFAS and that will require action in the near future. The following summarizes information of which chemical manufacturers and users need to be aware, including EPA's most recent actions related to PFAS and potential congressional action.

PFAS Added to the Toxics Release Inventory

On June 22, 2020, EPA issued a final rule to amend the Toxics Release Inventory (TRI) by adding 172 PFAS to the TRI reporting requirements. EPA is invoking the "good cause" exception under the Administrative Procedure Act to dispense with notice-and-comment requirements because the action is required by the FY 2020 NDAA. These PFAS were effectively included as of January 1, 2020, which means releases of the substances are reportable for the 2020 reporting year. Reporting forms for releases in 2020 are due July 1, 2021.

Per the Defense Authorization bill, the reporting threshold for each of these PFAS is 100 pounds. In addition, per EPA's regulations,¹ the level to qualify for the de minimis exemption is 0.1% for PFOA and 1% for all other PFAS additions.

This action follows a separate effort by EPA from December 4, 2019 that preceded the Defense Authorization bill. At that time, EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) asking for comment on which PFAS should be listed in the TRI and at what reporting thresholds. While at first glance it appears EPA's actions pursuant to the 2020 NDAA would supersede any further action on the Agency's December 2019 ANPRM, EPA has not explicitly foreclosed that option. Thus, the EPA could continue its December 2019 ANPRM process to add additional PFAS to the TRI, including immediately before or after a change in Administrations, if that should occur.

Significant New Use Rule Finalized for Certain Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemicals

On June 22, 2020, EPA finalized a Toxic Substances Control Act (TSCA) Significant New Use Rule (SNUR) for certain Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemicals (LCPFAC or long-chain PFAS). The SNUR was originally proposed in January 2015, and EPA issued a supplemental proposal on March 3, 2020 apparently to narrow the focus of the original proposal. The FY 2020 NDAA mandated that EPA take final action with respect to the proposed rule no later than June 22, 2020.² The final SNUR will require notification to EPA at least 90 days before commencing:

• Manufacturing (including importing) or processing of certain long-chain PFAS for any use that was not ongoing after December 31, 2015;
• Manufacturing (including importing) or processing of all other long-chain PFAS for which there were no ongoing uses as of January 21, 2015;
• Importing certain long-chain PFAS as part of a surface coating on articles; and
• Importing perfluoroalkyl sulfonate chemicals as part of carpets.

Although EPA originally proposed in 2015 to require notification for the import of certain long-chain PFAS in all articles, EPA amended the requirement in the March 2020 supplemental proposal to apply only to long-chain PFAS included in the "surface coating" on articles. Notwithstanding requests from public commenters to do so, EPA did not provide a definition of "surface coating." EPA instead only offered in the preamble that it is “not defining this term due to the many different ways that [long-chain PFAS] could be applied to an article as part of a surface coating and how a given article could move through the supply chain.” (85 Fed. Reg. 45114) The Agency stated it will issue guidance on this issue within a reasonable timeframe. However, as EPA explains, the rule does apply to articles that have surface coatings with certain long-chain PFAS that have been cured or undergone chemical reaction after being applied to an article. 

Despite asking for comments on whether to include a safe harbor provision for importers of articles that can demonstrate their use was ongoing prior to the rule's effective date, and whether to establish a de minimis threshold of the long-chain substances present in a surface coating for determining when reporting would be required, EPA elected not to do either. 

Preliminary Steps to Developing Drinking Water Regulations for Certain PFAS

EPA has faced public pressure to create drinking water standards for PFAS. The issue was part of congressional negotiations for the FY 2020 NDAA. Finally, on March 10, 2020, EPA published in the Federal Register its "Announcement of Preliminary Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List." EPA has sought comment on its preliminary determinations to develop drinking water regulations for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) and not to regulate six other contaminants (1,1-dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene, and RDX). The comment period closed in June 2020.

EPA made preliminary determinations to regulate PFOS and PFOA because it concluded the two chemicals met the requirements under the Safe Drinking Water Act, including:

1. The contaminants may have an adverse effect on the health of persons;
2. The contaminants are known to occur or there is a substantial likelihood that the contaminants will occur in public water systems with a frequency and at levels of public health concern; and
3. That regulation of the contaminants presents a meaningful opportunity for health risk reduction for persons served by public water systems.

Although the Agency made only preliminary regulatory determinations for PFOA and PFOS in this announcement, the Notice also discussed the possibility of regulating other PFAS. EPA asked for comments on potential regulatory approaches for other PFAS. It has identified the following options:

1. Evaluate each additional PFAS on an individual basis;
2. Evaluate additional PFAS by different grouping approaches; or
3. Evaluate PFAS based on drinking water treatment techniques.

If EPA finalizes its regulatory determinations, it will have 24 months to propose a non-enforceable maximum contaminant level goal and an enforceable national primary drinking water regulation for PFOS and PFOA. An enforceable national primary drinking water regulation applies to public water systems and can take the form of a maximum contaminant level (MCL) or, if there is no reliable method that is economically and technically feasible to measure a contaminant at concentrations to indicate there is not a public health concern, a treatment technique.

Future Regulatory and Legislative Actions Related to PFAS

As discussed above, EPA has taken a number of steps recently to regulate PFAS, including those outlined in the PFAS Action Plan and those legislatively mandated, and the Agency appears to consider its work in the regard to be far from over. For example, EPA stated its intention to initiate the regulatory process for listing PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Not only does EPA appear ready to take further actions as part of its PFAS Action Plan, but PFAS remains a highly debated issue in Congress. For example, the US House of Representatives passed the PFAS Action Act (H.R. 535) on January 10, 2020. The bill would, among other things:

• Require EPA to create a drinking water standard for PFOA and PFOS within two years;
• list PFOA and PFOS under the Clean Water Act within two years;
• make PFOA and PFOS hazardous air pollutants under the Clean Air Act; and
• list PFOA and PFOS as hazardous substances under CERCLA.

Although the bill passed with bipartisan support in the House (with 24 Republicans joining Democrats), as of this writing, the bill has yet to be considered in the US Senate and may not gain much traction. However, aspects of the bill have been introduced in other settings, such as the FY 2021 NDAA.

Within the FY 2021 Defense Authorization bill, the two chambers have included several PFAS-related provisions. For example, the Senate bill (S. 4049) includes a provision requiring the Department of Defense to conduct a survey and market research of available firefighting technologies or substances to facilitate the phase-out of fluorinated aqueous film-forming foam. In addition, the Senate agreed to an amendment from Sen. Jeanne Shaheen (D-NH) that would provide additional funding for a Centers for Disease Control and Prevention study on the effects of PFAS in drinking water. The Senate passed its bill on July 23, 2020.

The House, which passed its version of the NDAA bill (H.R. 6395) on July 21, 2020, also included a number of PFAS provisions, several of which were added during the amendment process in the final days of the House's consideration of the bill. For example, the bill would:

• require the Department of Defense to notify the congressional Armed Services Committees within 48 hours of releases of PFOS- and PFOA-containing firefighting foam at any military installation;
• with regard to the PFAS added to the TRI by the FY 2020 NDAA, require manufacturers to report all discharges, effectively removing the de minimis exemption; and
• require the Department of Defense, when conducting removal or remedial actions of PFOS or PFOA contamination, to comply with the most stringent of a state or federal drinking water standard or a federal health advisory.

These are only a few examples of the numerous PFAS-related provisions in the House bill. The topic of regulating PFAS likely will play a role in discussions between the House and Senate to reconcile differences between the two NDAA bills.

Additionally, PFAS efforts are being considered in other important appropriations measures. For example, on July 23, 2020, the House adopted an amendment to the FY 2021 Interior-Environment appropriations bill (H.R. 7608) that would prohibit funds from being used to withdraw the EPA's Notice of Proposed Rulemaking to designate PFOA and PFOS as hazardous substances under CERCLA or to withdraw EPA's preliminary regulatory determination to regulate PFOA and PFOS under the Safe Drinking Water Act. The House began consideration of its first spending package, which contains four appropriations bills, during the week of July 20; however, the Senate has yet to begin its appropriations markup process. The timeline for enacting the appropriations bills for this year remains unclear, and a short-term Continuing Resolution may be needed before the start of the new fiscal year on October 1.

Conclusion

Over the past several years, federal regulatory and legislative initiatives continue to focus on PFAS, and the category of substances remain a significant area of concern even during the COVID-19 pandemic. As noted above, several actions by EPA will affect manufacturers and users of PFAS now, and the landscape of PFAS regulation at the federal level will continue to change as the issue remains a priority for the Agency and for policymakers. We will continue to monitor and advise readers on these important PFAS-related regulatory and legislative developments.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.