On March 14, 2023, the Environmental Protection Agency proposed imposing national drinking-water standards for six per- and polyfluoroalkyl substances, commonly referred to as PFAS or sometimes as “forever chemicals.” Federal and state regulation of PFAS has been on the radar of businesses that may be impacted, including those in the water treatment, waste management, recycling and manufacturing sectors. The EPA’s recent action proposes regulating two of the most common PFAS substances (PFOA and PFOS) as individual contaminants with Maximum Contaminant Levels (MCLs) of four parts per trillion (ppt), and regulating four others (PFNA, PFHxS, PFBS, and GenX Chemicals) as a mixture using a Hazard Index calculation.
Proposed Federal PFAS Regulation
The EPA’s proposal would require public water systems to:
- monitor for PFAS,
- notify the public of the levels of the six regulated PFAS, and
- reduce the levels of these PFAS in drinking water if they exceed the MCLs or the target hazard level.
The EPA’s new proposal is a dramatic change from its 2016 recommended allowable PFAS concentrations of 70 ppt for drinking water, and signals the EPA’s continued focus on PFAS. In March of 2021, the EPA made its final determination to regulate PFOA and PFOS in drinking water, foreshadowing this latest proposal. EPA expects to finalize the drinking water regulation by the end of 2023, and will soon seek public comments on the proposed rule following publication of the proposal in the Federal Register.
This drinking water proposal is not the only EPA regulatory proposal related to PFAS. In 2022, EPA proposed regulating PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which would require entities to immediately report releases of the substances; it would also place responsibility for environmental damage and clean-up costs on facility owners and operators, generators, and parties who contribute to a release of the substance. EPA is currently in the process of reviewing public comments on its proposed rule regulating PFOA and PFOS under CERCLA.
Minnesota PFAS Activity
In Minnesota, PFAS have the attention of the Governor’s office and the Minnesota Pollution Control Agency (MPCA). Governor Tim Walz’s budget allocates more than $35 million to identify and treat PFAS contamination in drinking water. The MPCA takes the position that PFAS compounds are “hazardous substances” under the Minnesota Environmental Response and Liability Act (MERLA), though the agency’s position has not yet been tested by the courts. The MPCA established its PFAS Blueprint in February 2021, which included ten priorities for PFAS action in Minnesota. Currently, the MPCA is focused on executing a monitoring plan to determine where and how PFAS enter the environment. Preliminary testing at closed landfill sites using detecting wells shows that 97% of these sites are positive for PFAS.
As part of its monitoring plan, the MPCA has begun requesting that facilities it has identified as potential sources of PFAS contamination undergo testing for these compounds. These facilities include water treatment facilities, landfills and composting sites, metal scrapyards, and certain industrial manufacturing facilities. To date, the MPCA has requested testing at 413 facilities in Minnesota, and plans to release the findings of this testing in 2024. Based on preliminary testing, the MPCA expects many areas to exceed the proposed drinking water limits.
Funding for PFAS Monitoring in Minnesota
The MPCA has indicated that there are funding opportunities for participants in the monitoring plan, coming at least in part from the $2 billion allocated in the Infrastructure Investment and Jobs Act to address emerging contaminants. These funds would be available as grants to states. Given the extreme costs of remediation of PFAS, however, it is unlikely that these funds would cover extensive remediation within Minnesota should it be required.
Winthrop and Weinstine continues to monitor the proposed actions of the EPA and MPCA, and how these actions will impact the regulated businesses. For more information about PFAS regulation, CERCLA, MERLA, or to discuss specific questions related to your facility, please feel free to reach out to any member of our Environmental team.
