Regulations for per- and polyfluoroalkyl substances (PFAS), including sub-classes like Perfluorooctane sulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA), are rapidly evolving. The first U.S. Environmental Protection Agency (EPA) regulation for PFAS was released in 2002, which required U.S. businesses to notify the agency if they imported or manufactured any of 13 designated PFAS chemicals to be compliant with two Significant New Use Rules (SNURs). As of January 2022, the number of PFAS chemicals that U.S. business are required to report information on has expanded from 13 to 179, and all of these are included in the Toxics Release Inventory (TRI).
The overall understanding of PFAS chemicals, their use in wide-ranging industries, and the ability to test for them in the environment are all still developing. Here is a brief overview of where PFAS regulations currently stand and where they are headed.
Looking Ahead
As stated above, the nature of PFAS regulations is highly variable and rapidly developing. State and federal government entities are considering various regulations for a range of applications, including drinking water, soil, and ambient air testing.
Part of the reason that regulations are changing so rapidly is that our ability to test, monitor, and model PFAS emission, transport, and deposition is newly evolving. In October 2021, the EPA released the National PFAS Testing Strategy: Identification of Candidate Per- and Poly- fluoroalkyl Substances (PFAS) for Testing, in which they lay out a plan to broaden and deepen our understanding of PFAS chemicals and the available methods for monitoring them.
The PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, also released in October 2021, outlines the EPA’s plans to evaluate established PFAS regulations, consider new regulations, and promote the development of novel technologies and methods that detect or remove PFAS in the environment. There are 31 specific actions covered in the plan, including testing fish for PFAS, expanding the testing requirement for public water services to a national scale, and establishing enforceable national regulations for PFOA and PFOS in drinking water. Our next post provides a summary of the most significant actions in the document.
Federal Toxics Release Inventory (TRI)
The federal TRI was created in 1986 when U.S. Congress passed the Emergency Planning and Community Right-to-Know Act (EPCRA) to provide information about the release of toxic chemicals to the public. The TRI is a mandatory program that requires facilities in specified industries to report the amount of each chemical on the list that they release into the environment or mitigate through recycling, treatment, and energy recovery.
Industries that are required to report include, but are not limited to, manufacturing, electric power generation, hazardous waste treatment, metal mining, and chemical manufacturing. Reports must be submitted once a year and the information is made available to the public. While the EPA does not fine facilities for the release of PFAS chemicals, they do assess fines for noncompliance with TRI reporting requirements.
On June 22, 2020, an initial list of 172 PFAS chemicals was added to the TRI, and three more chemicals were added in 2021. Four additional PFAS chemicals were included in the TRI as of January 24, 2022, bringing the current number of included PFAS chemicals to 179.
Water Regulations
Monitoring PFAS in drinking water is one of the earliest and most prevalent types of regulations for these chemicals.
The EPA released a Provisional Health Advisory that set the maximum level for PFOA and PFOS in drinking water at 400 parts per trillion (ppt) on January 8, 2009. This level was adjusted when the EPA published a Lifetime Health Advisory that lowered this level to 70 ppt in May 2016. It is important to note that EPA Health Advisories simply provide technical information to public health officials; they are non-regulatory and are not enforceable.
Since then, eight states have implemented regulatory requirements for various PFAS chemicals in drinking water that are lower than the EPA health advisory limit. California established the most stringent regulatory threshold in the country at 5.1 ppt for PFOA on August 23, 2019. Michigan adopted similarly strict levels on August 3, 2020, when they set multiple Maximum Contaminant Levels (MCLs) that were considerably lower than 70 ppt, including 6 ppt for Perfluorononanoic acid (PFNA) and 8 ppt for PFOA. Thirty-four states do not have PFAS regulations in place for drinking water.
Lyle R. Chinkin
