There are three significant EPA actions afoot related to PFAS that companies absolutely must pay close attention to and see as harbingers for aggressive EPA PFAS enforcement in the near future. An April 2023 PFAS-related Consent Order under the Clean Water Act, changes proposed for TSCA and PFAS, and likely TRI changes related to PFAS are all clear signs that the EPA is preparing to pursue PFAS dischargers on a broadscale basis. Companies already subject to TSCA and/or TRI, or who may become subject to these regulations once proposed amendments become final, need to understand that the information collected by the EPA is being collected for a primary purpose – to drive enforcement action. Understanding not only compliance needs but also conducting risk management assessments, are critical steps for companies to take in the face of these changes.

EPA PFAS Enforcement – Opening Salvo Is Fired

On April 26, 2023, the EPA announced that it had taken its first enforcement action pertaining to PFAS under the Clean Water Act. Under the Clean Water Act, it is unlawful to discharge pollutants into U.S. waterways except pursuant to a National Pollution Discharge Elimination System (NPDES) permit, issued by the EPA or a state. The permit sets pollution discharge limits, monitoring and reporting requirements, and other conditions designed to protect water quality.

In the April 2023 enforcement action, the EPA targeted Chemours for what the EPA believes were impermissibly high discharges of PFAS from its Washington Works facility in West Virginia. At the facility, Chemours manufactures certain types of PFAS and the company has a NPDES permit to discharge in the Ohio River and its tributaries. The EPA’s administrative compliance order on consent indicates that the facility discharged impermissibly high amounts of PFOA and HFPO between 2018 and 2023.

The Consent Order requires Chemours to take several steps to rectify the discharges that violated the NPDES, including ensuring that only permissible discharges take place, conducting sampling and analysis of PFAS discharges and reporting the findings to the EPA, developing and implementing a PFAS Reduction Plan that includes measures to reduce PFAS discharges into water bodies, and providing funding for monitoring and testing for PFAS in public water systems and private wells. Non-compliance would result in penalties of up to $10,000 per day.

TSCA Changes and PFAS

The Toxic Substances Control Act (TSCA) is used by the EPA to address the production, importation, use, and disposal of specific chemicals. On May 26, 2023, the EPA published its long-awaited proposed changes to TSCA requirements as they pertain to PFAS. More specifically, the proposed TSCA rules related to PFAS would be ineligible for low volume exemptions (LVEs) and low release and exposure (LoREX) exemptions. Historically, LVEs were granted for certain PFAS under TSCA, but the EPA is now proposing revocation of the previously-granted LVEs for PFAS.

EPA has proposed to define PFAS for TSCA purposes as a chemical substance that contains at least one of these three structures:

1. R-(CF2)-CF(R’)R”, where both the CF2 and CF moieties are saturated carbons;
2. R-CF2OCF2-R’, where R and R’ can either be F, O, or saturated carbons; or
3. CF3C(CF3)R’R’’, where R’ and R” can either be F or saturated carbons.

The proposed definition does not include substances with only a single fluorinated carbon or unsaturated fluorinated moieties because, in EPA’s view, these substances “are more susceptible to chemical transformation than their saturated counterparts, and therefore less likely to persist in the environment.”

Compliance will be the most significant impact on many companies if the TSCA proposals become final. Under TSCA, companies must disclose information (here, the use of PFAS) if that information is known or reasonably ascertainable. The EPA does not define what is “reasonably ascertainable,” as compliance with the rule on this point is done on a case-by-case basis. Nevertheless, the EPA estimates that it will cost companies $876 million to comply with the new TSCA PFAS requirements if the proposed rules go into effect.

TRI Changes and PFAS

The Toxics Release Inventory program is the EPA’s information gathering resource for discharges of regulated chemicals into the environment. Currently, 180 PFAS are listed under TRI and so environmental releases of the regulated PFAS must be reported to the EPA. At the moment, there is a “de minimus exemption” under TRI that only requires reporting discharges of 100 pounds or more. However, the EPA has stated an intention to propose amendments to the TRI for PFAs, such that the de minimus exemption would be removed. As such, any release of the listed PFAS under TRI would need to be reported to the EPA. This would significantly increase the amount of data and information that the EPA receives regarding PFAS releases.

Impact of Changes

Viewing all of the above changes at once, it is clear that the EPA is laying a foundation for the ability to pursue what it views as PFAS polluters with significant data to back up its enforcement actions. In the big picture, TSCA gives the EPA information about PFAS as it enters a manufacturing or industrial facility, and TRI gives the EPA information about how the PFAS is then discharged into the environment. All of this data will enable the EPA to assess and then target those companies that it views as the biggest dischargers of PFAS into the environment. The EPA’s action under the Clean Water Act shows that the EPA is just beginning to take such action, and it is reasonable to assume that the enforcement action was the first of many to come.