EPA’s Spring 2023 Unified Agenda Includes PFAS Rulemakings

Authored by Lynn L. Bergeson, Managing Partner, Bergeson & Campbell PC and Carla N. Hutton, Regulatory Analyst, Bergeson & campbell PC

The U.S. Environmental Protection Agency’s (EPA) spring 2023 Unified Agenda, published on June 13, 2023, includes the following rulemakings concerning per- and polyfluoroalkyl substances (PFAS).

Prerule and Proposed Rule Stage

Addressing PFAS in the Environment (RIN: 2050-AH25): On October 18, 2021, EPA released its PFAS Strategic Roadmap, building on and accelerating the implementation of existing plans to address PFAS and committing to new policies to address PFAS in the environment. EPA published an advanced notice of proposed rulemaking (ANPRM) in which it sought public input on further PFAS-related designations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). More information on the ANPRM is available in our April 13, 2023, memorandum.
Listing of PFOA, PFOS, PFBS, and GenX as RCRA Hazardous Constituents (RIN: 2050-AH26): Based on public health and environmental protection concerns and in response to several petitions that requested EPA to take regulatory action on PFAS under the Resource Conservation and Recovery Act (RCRA), EPA is evaluating the existing toxicity and health effects data on four PFAS constituents to determine if they should be listed as RCRA hazardous constituents. According to EPA, if the existing data for the four PFAS constituents support listing any or all of these constituents as RCRA hazardous constituents, EPA will propose to list the constituents in a Federal Register notice for public comment. The four PFAS chemicals EPA will evaluate are perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS), hexafluoropropylene oxide dimer acid (HFPO-DA or GenX). EPA submitted a proposed rule to the Office of Management and Budget (OMB) for review on May 8, 2023. EPA intends to publish a notice of proposed rulemaking (NPRM) in August 2023.
Addition of Certain PFAS to the TRI (RIN: 2070-AL03): EPA is developing a rulemaking to add certain PFAS to the Toxics Release Inventory (TRI), the list of chemicals reportable under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). EPA notes that the proposed addition of these PFAS is in direct response to a statutory mandate under Section 7321(d) of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), which directs EPA to evaluate whether certain PFAS meet the EPCRA Section 313 listing criteria by December 2021 and is required to add any PFAS that EPA determines meet the listing criteria by December 2023. EPA intends to publish an NPRM in December 2023 and to issue a final rule in November 2024.

Final Rule Stage

PFAS National Primary Drinking Water Regulation Rulemaking (RIN: 2040-AG18): On March 3, 2021, EPA published the Fourth Regulatory Determinations in the Federal Register, including a determination to regulate PFOA and PFOS in drinking water. Per the Safe Drinking Water Act (SDWA), following the publication of the Regulatory Determination, the Administrator shall propose a maximum contaminant level goal (MCLG) and a national primary drinking water regulation (NPDWR) not later than 24 months after determination and promulgate an NPDWR within 18 months after proposal (EPA notes that SDWA authorizes a nine-month extension of this promulgation date). With this action, the EPA states that it intends to develop a proposed national primary drinking water regulation for PFOA and PFOS, and as appropriate, take final action. Additionally, EPA will continue to consider other PFAS as part of this action. This action provides a key commitment in its 2021 PFAS Strategic Roadmap. More information on EPA’s March 2023 NPRM is available in our March 16, 2023, memorandum. EPA intends to publish a final rule in January 2024.
Designating PFOA and PFOS as CERCLA Hazardous Substances (RIN: 2050-AH09): On October 18, 2021, EPA released its PFAS Strategic Roadmap, building on and accelerating the implementation of existing plans to address PFAS and committing to new policies to address PFAS in the environment. The proposal to designate PFOA and PFOS as hazardous substances was one of several actions mentioned in the Strategic Roadmap. EPA notes that such designations would require facilities across the country to report on PFOA and PFOS releases that meet or exceed the reportable quantity. More information on the NPRM is available in our August 29, 2022, memorandum. EPA intends to publish a final rule in February 2024.
TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for PFAS (RIN: 2070-AK67): EPA published a proposed rule on June 28, 2021, addressing reporting and recordkeeping requirements for PFAS under Section 8(a)(7) of the Toxic Substances Control Act (TSCA). In accordance with obligations under TSCA Section 8(a), as amended by NDAA Section 7351, persons that manufacture (including import) or have manufactured these chemical substances in any year since January 1, 2011, would be subject to the reporting and recordkeeping requirements. In addition to fulfilling statutory obligations under TSCA, EPA states that it expects that the final rule will enable it to characterize better the sources and quantities of manufactured PFAS in the United States. EPA notes that it solicited additional public comments on an Initial Regulatory Flexibility Analysis (IRFA) following the completion of a Small Business Advocacy Review (SBAR) Panel addressing the proposed PFAS reporting and recordkeeping requirements. EPA submitted the final rule to OMB for review on May 25, 2023. EPA intends to issue the final rule in September 2023. More information on the IRFA is available in our November 29, 2022, memorandum, and on the proposed rule in our June 11, 2021, memorandum.
PFAS Designated as Inactive on the TSCA Inventory; SNUR (RIN: 2070-AL10): EPA states that it is considering public comment on a proposed significant new use rule (SNUR) for those PFAS that have not been manufactured (including imported) or processed for many years and are consequently designated as inactive on the TSCA Chemical Substance Inventory. Persons subject to the SNUR would be required to notify EPA at least 90 days before commencing any manufacture (including import) or processing of the chemical substance for a significant new use. Once the EPA receives a notification, EPA must review and make an affirmative determination on the notification, and take such action as is required by any such determination before the manufacture (including import) or processing for the significant new use can commence. Such a review will assess whether the use may present an unreasonable risk to health or the environment and ensure that the EPA can prevent future unsafe environmental releases of the PFAS subject to this SNUR. EPA intends to issue a final rule in December 2023. More information on the proposed SNUR is available in our January 27, 2023, memorandum.
Changes to Reporting Requirements for PFAS and Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting (RIN: 2070-AK97): EPA is considering comments to its proposal to add PFAS subject to reporting under EPCRA and the Pollution Prevention Act (PPA) pursuant to the NDAA to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). The addition of these PFAS to the list of chemicals of special concern will cause such PFAS to be subject to the same reporting requirements as other chemicals of special concern (i.e., it would eliminate the use of the de minimis exemption and the option to use Form A and would limit the use of range reporting for PFAS). According to EPA, “[r]emoving the availability of these burden-reduction reporting options will result in a more complete picture of the releases and waste management quantities for these PFAS.” In addition, EPA proposed to remove the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern. This change will help ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase. EPA submitted a proposed rule to OMB for review on August 7, 2023. EPA intends to issue a final rule in November 2023. More information on the proposed rule is available in our December 7, 2022, memorandum.
Implementing Statutory Addition of Certain PFAS to the TRI Beginning with Reporting Year 2023 (RIN: 2070-AL14): On December 20, 2019, the NDAA was signed into law. Among other provisions, Section 7321 provides a framework for PFAS to be added automatically to the TRI list on January 1 of the year following certain EPA actions. This final rule will amend the EPCRA regulations to reflect the statutory addition of the PFAS that were automatically added to the TRI list pursuant to the NDAA and are subject to TRI reporting for Reporting Year 2023. EPA published a final rule on June 23, 2023. More information is available in our June 26, 2023 blog item

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