The U.S. Environmental Protection Agency recently announced two additional steps in implementing its action plan for regulating per- and polyflouroalkyl substances. PFAS have recently become an emerging area of focus for environmental law and policy at both the state and federal level. PFAS are a large group of man-made chemicals used in consumer products, industrial processes and firefighting foams. In use since the 1940s, PFAS are resistant to heat, oils, stains, grease and water—properties that contribute to their persistence in the environment.
In late November, EPA issued a Notice of Proposed Rulemaking that would add PFAS to the list of chemicals for which facilities must report their annual manufacturing, processing and use under the Emergency Planning and Community Right to Know Act. The EPCRA requires companies that use listed chemicals to report on their use, pollution prevention and disposal. Typically, reporting is required only where manufacturing or processing exceeds 25,000 pounds or use exceeds 10,000 pounds. Currently, none of the 600 types of PFAS manufactured or used in the U.S. must be reported under the EPCRA.
The EPA’s notice asks the public to comment on whether PFOS and PFOA should be listed for EPCRA reporting and what the reportable thresholds should be. The agency is also gathering and evaluating information to determine if regulation is appropriate for other chemicals in the PFAS family. The public comment period is expected to begin soon and run for 60 days.
If the EPA makes a positive regulatory determination for any contaminant, it will begin the process to establish a national primary drinking water regulation for that contaminant.
In addition, in early December the EPA sent a proposed regulatory determination of perfluorooctanesulfonic acid and perfluorooctanoic acid in drinking water to the Office of Management and Budget for interagency review.