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July 26, 2022

EPA's Continued Focus and Mandated Reporting on PFAS ("Forever Chemicals")

PFAS (per- and poly-fluoroalkyl substances) continue to gain national and global attention and are now the focus of aggressive action by the US Environmental Protection Agency (USEPA) to further reduce exposures. PFAS are widely used, long-lasting chemicals that break down very slowly, which is why they’re often called “forever chemicals.” 

On June 15, 2022, the USEPA issued interim updated drinking water health advisory guidelines with new safe harbor concentrations (concentrations in drinking water at or below which adverse health effects are not anticipated) and new minimum reporting levels for PFOS and PFOA in drinking water. The new USEPA concentrations in drinking water at or below which adverse health effects are not anticipated for PFOS is .02 parts per trillion (ppt) and for PFOA is .004 ppt. The new USEPA minimum reporting levels are 4 ppt for both PFOS and PFOA. 

Both of these compounds are part of the larger class of chemicals called PFAS. These chemicals have water- and grease-resistant properties and are used in a wide variety of products, including nonstick cookware, waterproof clothing, food packaging, and firefighting foams. The previous 2016 USEPA guideline set a limit of 70 ppt for both PFOS and PFOA in drinking water. In July 2020, the NYS Public Health and Health Planning Council established maximum contaminant limits (MCLs) in drinking water in New York State for PFOS of 10 ppt and PFOA of 10 ppt. 

The new advisories, which are designed to protect all Americans, including sensitive populations and lifestages, decrease the safe harbor concentrations more than a thousandfold to .02 ppt for PFOS and .004 ppt for PFOA, and the minimum reporting level approximately twentyfold. One of the issues with these new EPA guidelines is the current limitations in equipment for measuring such trace amounts. 

USEPA is also committed to propose a regulation by the end of this year to establish national MCLs for PFOS and PFOA. If USEPA meets its announced timeline, there will be a public comment process in 2023 that will conclude with enforceable national MCLs by year end. With New York’s MCLs established at 10 ppt and the USEPA’s safe harbor concentrations now set for PFOS at .02 ppt and for PFOA at .004 ppt, it is likely that the national MCL will be at least an order of magnitude less than the 2016 USEPA guideline set at 70 ppt.

On July 18, 2022, the USEPA again focused its attention on PFAS and issued its final rule updating the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). The final rule updates the regulations to identify five PFAS that must be reported pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA), enacted on December 20, 2019. According to USEPA, as this action is being taken to conform the regulations to a congressional legislative mandate, notice and comment rulemaking was unnecessary. The final rule will be effective August 17, 2022. 

Companies may potentially be affected by this action if they manufacture, process, or otherwise use any of the PFAS listed in the rule and should familiarize themselves with the reporting. Read more about it at the Federal Register

If you have any questions regarding the content of this alert, please contact Heidi Ruchala, partner, at hruchala@barclaydamon.com, or another member of the firm’s Torts & Products Liability Defense or Mass & Toxic Torts Practice Areas, or Yvonne Hennessey, chair of the firm’s Environmental Practice Area, at yhennessey@barclaydamon.com, or another member of the Environmental Practice Area.

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