How are PFAS presently regulated?

Under the Toxic Chemicals Control Act (TSCA), the EPA has urged the phase-out of PFOA (perfluorooctane sulfonic acid) and PFOS (perfluorooctane sulfonate) and used its substantial new use rules (SNUR) to restrict the manufacture and use of certain per- and polyfluorinated substances (PFAS)

Under the Safe Drinking Water Act (SDWA), the EPA has issued health advisory levels (HALs) for PFOA and PFOS in drinking water, but has not established maximum contamination limits (MCLs) for these or other PFAS.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), PFAS are not explicitly regulated as hazardous substances or hazardous wastes under the Resource Conservation and Recovery Act (RCRA). However, they do fall under the general category of pollutants or contaminants.

State regulation of PFAS varies; in Texas, PFAS in the environment falls under the definition of solid waste and might be regulated under the state’s Superfund and industrial solid waste programs.

• In the past, PFAS had not been the subject of protective concentration levels or PCLs under the Texas Risk Reduction Program (TRRP), which created significant issues for those seeking to remediate them under that program.
• Now, there are PCEs for several PFAS.

How is the federal government planning to regulate PFAS under its February 14, 2019, Action Plan? 

• Drinking Water-EPA stated plans to proceed with the MCL process for PFOA and PFOS and examine whether regulation is necessary for a broader class of PFAS.
• Cleaning The EPA intends to strengthen enforcement authorities and clarify cleanup tactics by classifying PFOA and PFOS as dangerous substances and developing interim guidelines for groundwater cleanup.
• Toxics – The EPA is contemplating the addition of PFAS chemicals to the Toxics Release Inventory (TRI) following the Emergency Planning and Community Right to Know Act, as well as restrictions prohibiting the use of some PFAS compounds.
• Monitoring—EPA plans to propose nationwide monitoring for PFAS in drinking water as part of the following monitoring cycle for the Unregulated Contaminant Monitoring Rule.
• Research – The EPA is expanding the scientific basis for understanding rapidly and managing PFAS risk.
• Risk Communication – The EPA intends to develop a risk communication toolkit containing multimedia materials and messaging for federal, state, tribal, and local partners to use with the general public.

What steps should companies take to reduce exposure to legal risks associated with the manufacture, use, and presence of PFAS? 

• Identify past and present uses of PFAS and locations at which PFAS may have been disposed of or be present:
• Identify potential risks associated with those uses and those locations
• Develop risk management strategies
• Retain knowledgeable professionals to help evaluate claims and other risks
• Develop guidance for responding to PFAS-related claims
• Explore substitutes for PHAS to reduce prospective risks
• Explore possibilities of obtaining pollution liability insurance that covers PFAS
• Monitor and participate in pertinent rulemaking and legislation to ensure its fact-based

Conclusions 

• PFAS may be the new asbestos, MTBE, or PCB
• The ubiquitousness of PFAS in the environment as well as in people
• creates significant public concern.
• This concern is manifesting itself in regulatory initiatives and everyday law actions:
• The particular approach regulators take to address PFAS will affect
• the nature and scope of regulated entities’ legal and business risks
• Prudent companies will try to identify and address these risks

Agenda

• Regulatory Comments
• Sources of PFAS Liquids
• Options to Manage PFAS Liquids
• Options to Manage PFAS Treatment Residuals.
• Considerations for Selecting an Option
• References
• Questions

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