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In the first half of 2024, significant activity occurred in regulations and other actions related to per- and polyfluoroalkyl substances (PFAS).

The United States Environmental Protection Agency (EPA) proposed and finalized major PFAS-related updates. These updates included:

• finalizing a rule designating two PFAS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances
• issuing enforcement discretion and settlement policy for PFAS under CERCLA
• proposing a rule designating nine PFAS as Resource Conservation and Recovery Act (RCRA) hazardous constituents
• finalizing drinking water standards for PFAS
• posting a draft air testing method for PFAS emissions
• including PFAS as a major emphasis in its FY 2025 Budget Request

Additionally, in Illinois, the Illinois Pollution Control Board (IPCB) moved to First Notice its rules for groundwater quality standards (GWQS), which proposes to establish GWQS for six PFAS.

Finalized Rule Designating PFOA and PFOS as CERCLA Hazardous Substances

In April, EPA finalized a rule that designated perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA. (See 89 Fed. Reg. 39124).

The regulations require entities to immediately report releases of PFOA and PFOS if a release meets or exceeds the reportable quantity (RQ of 1 lb. for releases of PFOA or PFOS or their salts and structural isomers). Reports are sent to the National Response Center, state/tribal emergency response commission, and local/tribal emergency planning committee.

Designating PFOA and PFOS as CERCLA hazardous substances also allows EPA and other agencies with CERCLA authority to: (1) clean up sites with PFOA and PFOS releases, and (2) hold the potentially responsible parties accountable for the costs incurred for investigation and cleanup and/or require response actions.

Issued PFAS Enforcement Discretion and Settlement Policy under CERCLA

In April, EPA issued a final memorandum titled “PFAS Enforcement Discretion and Settlement Policy under CERCLA.” The memorandum discusses how EPA will exercise its enforcement discretion under CERCLA in matters involving PFAS.

Specifically, the memorandum explains that EPA will focus its enforcement efforts on responsible entities who significantly contributed to the release of PFAS into the environment. This includes manufacturers of PFAS, entities that used PFAS in the manufacturing process, other industrial parties, and federal agencies or federal facilities responsible for PFAS releases.

Furthermore, the memorandum explains that EPA plans to use its enforcement discretion and not pursue enforcement against otherwise potentially responsible parties where “equitable factors do not support seeking response actions or costs,” including community water systems, publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to land. The memorandum also offers additional explanation regarding EPA entering into settlements involving PFAS under CERCLA.

Proposed Listing of Nine PFAS as RCRA Hazardous Constituents

In February, EPA proposed a rule that would add nine PFAS, including their salts and structural isomers, to RCRA’s hazardous constituents list. (See 89 Fed. Reg. 8606). The nine proposed PFAS include:

1. perfluorooctanoic acid (PFOA)
2. perfluorooctanesulfonic acid (PFOS)
3. perfluorobutanesulfonic acid (PFBS)
4. hexafluoropropylene oxide-dimer acid (HFPO-GA or GenX)
5. perfluorononanoic acid (PFNA)
6. perfluorohexanesulfonic acid (PFHxS)
7. perfluorodecanoic acid (PFDA)
8. perfluorohexanoic acid (PFHxA)
9. perfluorobutanoic acid (PFBA).

In its proposed rule, EPA maintains that scientific studies have shown these PFAS (including their salts and structural isomers) have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms.

If the rule is adopted, when corrective action requirements are imposed at a site, these nine PFAS would be expressly identified for consideration in RCRA facility assessments. Additionally, when necessary, further investigation and cleanup through the RCRA corrective action process would be warranted at treatment, storage, and disposal facilities.

Finalized Drinking Water Enforcement Limits for PFAS

In April, EPA finalized the National Primary Drinking Water Regulation (NPDWR) for these six PFAS:

• PFOA
• PFOS
• PFHxS
• PFNA
• HFPO-DA
• mixtures containing two or more of PFHxS, PFNA, HFPO-DA, and PFBS.

(See 89 Fed. Reg. 32532).

The NPDWR establishes enforceable maximum contaminant levels (MCLs) and health-based maximum contaminant level goals (MCLGs) for the six PFAS in drinking water. Table 1 details those final contaminant levels.

*The standards are expressed in either ppt or nanograms per liter (ng/L).

Under the final rule, public water systems are required to monitor for these PFAS. The systems  have three years to complete the initial monitoring. After that, ongoing compliance monitoring requirements apply.

If monitoring shows that drinking water levels exceed the MCLs, public water systems will have five years to implement solutions for PFAS reduction. Beginning in 2029, systems that have PFAS MCL violations must take action to reduce levels of PFAS in the drinking water. The final rule also includes several public notification requirements.

Posted Draft PFAS Air Testing Method

In January, EPA posted a draft test method—known as an Other Test Method (OTM-50)—to promote consistency in the sampling of PFAS in air emissions from stationary sources. The method describes how entities can sample for PFAS in air emissions from industrial stationary source ducts, vents, stacks, and other possible emission points. OTM-50 joins OTM-45, another PFAS testing methodology, on USEPA’s Air Emission Measurement Center webpage. OTM-45 focuses on semi-volatile and particulate-bond PFAS, while OTM-50 focuses on certain volatile PFAS.

It’s important to note that posting an OTM on the Air Emission Measurement Center webpage does not mean EPA has endorsed the validity of or approved the OTM since OTMs are test methods that have not yet been subject to the rulemaking process. (More information about this new PFAS Air Testing Method is available in our March 5 blog post.)

Emphasized PFAS in FY 2025 Budget Request

In March, EPA sent Congress its proposed Fiscal Year (FY) 2025 budget and justification request. The proposed budget includes planned program activities and associated resource requirements for FY 2025. In its proposed budget, the Agency stressed the need to address PFAS across a wide range of actions and programs. Overall, the proposed budget requests $10.994 billion. Of that total, $67.3 million is requested to invest addressing the most serious environmental violations through implementation of the National Enforcement and Compliance Initiatives, which includes addressing exposure to PFAS contamination. And $42.8 million is requested to advance its PFAS Strategic Roadmap. The proposed budget also noted that EPA will continue its efforts to develop analytical methods, drinking water health advisories, toxicity values, and effluent limitation guidelines, along with communications and other tools.

IPCB Moved to First Notice in Groundwater Quality Standards Rulemaking

In March, the Illinois Pollution Control Board (IPCB or Board) published the First Notice of its proposal to amend the groundwater quality standards (GWQS). (See PCB R 22-18 in 35 Ill. Admin. Code Part 620.) Among other things, IPCB proposes to establish GWQS for six PFAS. These proposed Class I - Potable Resource Groundwater Standards are:

• PFBS: 0.0012 mg/L
• PFHxS: 0.000077 mg/L
• PFNA: 0.000012 mg/L
• PFOA: 0.000004 mg/L
• PFOS: 0.0000077 mg/L
• HFPO-DA: 0.000012 mg/L

The Board also proposed adopting Class II - General Resource Groundwater standards for these six PFAS. The IPCB justified moving forward with the proposed PFAS GWQS ahead of PFAS drinking water standards because these six PFAS have been detected in community water supplies throughout the State and adopting such standards meets the policies of the Illinois Groundwater Protection Act.