April 2024 is EPA’s Month of PFAS: National Drinking Water Requirements and So Much More

At a Glance

• For the first time, EPA finalized enforceable drinking water standards for six PFAS.
• 66,000 public water systems (PWSs) must begin monitoring within three years and meet the PFAS drinking water standards within five years.
• EPA released new interim PFAS destruction and disposal (D&D) guidance continuing the focus on three forms of D&D: underground injection, landfills, and burning.
• EPA and GSA announced additional requirements to remove PFAS from federal contracting, including banning the use of PFAS by cleaning contractors.
• EPA proposed collecting information from the 400 largest publicly owned treatment works (POTWs) and potentially 2,000 industrial facilities on PFAS discharges into POTWs.

Background

The U.S. Environmental Protection Agency (EPA) has been extremely busy over the past few weeks with additional PFAS actions — and the designation of PFOA and PFOS as hazardous substances under CERCLA is expected imminently.

In this client alert, we summarize these four significant actions:

• EPA’s final PFAS national drinking water standard rule
• EPA’s new interim guidance on PFAS destruction and disposal
• EPA and the U.S. General Services Administration (GSA) guidance to agencies on phasing out PFAS in government procurement
• EPA’s proposed information collection request (ICR) to publicly owned treatment work (POTWs) on PFAS in water.

EPA’s PFAS National Drinking Water Rule

On April 10, 2024, EPA announced the final rule titled “PFAS National Primary Drinking Water Regulation Rulemaking” (PFAS National Drinking Water Rule). This rule requires public drinking water systems to sample and provide information to EPA and the public on six PFAS and meet stringent water quality standards.

Who is covered by the PFAS National Drinking Water rule?

All new and existing community water systems (CWSs) and non-transient non-community water systems (NTNCWSs) are covered by this rule and are defined in 40 C.F.R. § 141.2. These are jointly referred to as public water systems (PWSs).

What are the standards for the PFAS National Drinking Water Rule?

EPA finalized enforceable drinking water quality standards — known as maximum contaminant levels (MCLs) — for the following six types of PFAS (defined as “covered PFAS”):

EPA also established MCL goals which are not enforceable but have the goal of no PFOA or PFOS in the water at all. These MCLs are lower than standards set by many states and may end up being default groundwater clean-up standards under the Superfund program, even for those substances not covered by the expected CERCLA hazardous substance designation.

How often do PWSs need to sample?

PWSs will be required to meet the following initial sampling requirements unless that have previously collected monitoring data:

• For surface water systems of all population sizes: quarterly.
• For groundwater systems serving over 10,000 customers: quarterly.
• For groundwater systems serving less than 10,000 customers: twice within a 12-month period.

PWSs will then be required to sample periodically — between quarterly and every three years — to ensure that the covered PFAS stay below the MCLs. The Rule will allow PWSs to sample less frequently if the samples are reliably and consistently below the MCL. However, EPA would require the PWS to sample more frequently if the sample is above certain levels.

When are the compliance dates for the PFAS National Drinking Water Standard?

PWSs must begin sampling and reporting three years and must meet the MCLs within five years after the rule is published in the Federal Register.

What are the reporting requirements for PWSs?

PWSs are required to submit Consumer Confidence Reports (CCRs) annually. The CCRs will be made publicly available. Therefore, PWS will need to submit information on PFAS detections starting in 2027 and MCL violations starting in 2029 as part of the CCR. If any of the MCLs are violated, the PWS will be required to also include health effects language.

Any violations of the sampling requirements or MCLs requires public notification (PN). While the MCL requirements are not effective for five years, state agencies are allowed to require PN even before the MCL effective date.

What happens to the sampling information from the PWSs?

EPA requires that PWSs report their sampling information to EPA.

What are the “Best Available Technologies” to meet the PFAS MCLs?

EPA is required to provide best available technologies (BAT) to help meet the MCLs – although PWS are not required to use the BAT identified as long as they are able to meet the standards. EPA identified granular activated carbon (GAC), anion exchange resins (AIX) and high-pressure membranes (nanofiltration (NF) and reverse osmosis (RO)) as BAT that can help meet the MCLs.

What are the expected costs of PFAS National Drinking Water Standard rule?

EPA estimates that this rule will cost around $1.5 billion annually. This estimate does not factor in costs that will be incurred by industry as PWSs attempt to identify the source of PFAS in their systems.

EPA’s Proposed Information Collection Request (ICR) for POTWs

On March 26, 2024, EPA published a proposal to collect information from the 400 largest publicly owned treatment works (POTWs) and up to 2,000 industrial facilities. The purpose of this ICR is to collect nationwide data on industrial discharges of PFAS to POTWs, as well as PFAS in POTW influent, effluent and sewage sludge.

What information is required to be collected?

The ICR is divided into multiple phases. The first phase requires the 400 largest POTWs to respond to a questionnaire from EPA. Based on that questionnaire, EPA will choose between 200 to 300 POTWs to conduct one-time grab samples from no more than ten industrial user effluent, domestic wastewater influent, POTW influent, and POTW effluent for forty PFAS and absorbable organic fluorine (AOF). EPA states that they do not expect this to require sampling from more than 2,000 industrial facilities. Those 200 to 300 POTWs will also then be required to collect one-time grab samples of sewage sludge for forty PFAS and AOF.

When will this information be collected?

EPA expects that all the information will be collected within one year of finalization of the ICR. Therefore, the information will likely be collected before the end of 2025.

How will this information be used?

EPA intends to use the collected information for potential future regulatory actions such as industry specific emission limitation guidelines (ELGs) and to inform future risk assessments.

EPA states that they plan to publicly provide summaries or sanitized versions of the information collected as part of the ICR. Additionally, any information provided to EPA may be shared with other regulatory agencies and the public as well (with limitation on information defined as confidential business information).

When are comments on the ICR due?

Comments are due by May 28, 2024. EPA will revise the ICR and allow for another public comment period before finalizing the ICR.

EPA and GSA’s Guidance on Removing PFAS from Government Contracting

On April 8, 2024, EPA and GSA jointly announced that they are directing government contractors to purchase cleaning products for federal buildings that do not contain added PFAS. This is part of the Federal government’s Federal Sustainability Plan which directs agencies to prioritize the purchase of “sustainable products and services” including phasing out added PFAS.

Additionally, EPA and GSA have identified several tools and filters for government contractors so that they can purchase items that do not contain added PFAS.

This announcement comes one week after GSA’s procurement advisory council recommended that the federal government reduce PFAS in procurement, including PFAS prohibitions in contracts, requiring additional supplier information and certifications, and requiring additional labeling and tools to filter for products with PFAS.

EPA’s New Interim Guidance on PFAS Destruction and Disposal

On April 9, 2024, a day before finalizing the PFAS National Drinking Water Standard Rule, EPA released an updated interim guidance on destruction and disposal (D&D) of PFAS. The guidance is in response to a requirement under the National Defense Authorization Act of 2020 and provides information to regulators and waste managers on how to destroy or dispose of PFAS.

Comments on the updated interim guidance will be accepted for 180 days after publication in the Federal Register.

The updated interim guidance focuses on three forms of D&D of PFAS:

• Underground injection
• Landfilling
• Thermal treatment (i.e., combustion).

In the proposed guidance, EPA states that the following D&D methods have a lower potential for environmental releases of PFAS compared to other technologies:

• Permitted Class I non-hazardous industrial or hazardous waste injection wells
• Permitted hazardous waste landfills
• Permitted hazardous waste combustors such as commercial incinerators, cement kilns, and lightweight aggregate kilns and granular activated carbon (GAC) reactivation units with thermal oxidizers.

EPA acknowledges that there is still information to be developed on the air emissions, efficacy and impacts from thermal treatment. EPA declined to add new D&D technologies for PFAS at this time but included information on evaluating impacts to vulnerable populations that may be near D&D facilities.

Preview of Coming Attractions: What is Next for PFAS?

We expect more EPA actions on PFAS in the near future and to continue throughout the year. Some of those actions include:

• Finalizing a rule that designates PFOA and PFOS as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
• Proposing to add more PFAS under the Toxic Release Inventory (TRI)
• Issuing guidance implementing the multiple final rules finalized over the past year.