EPA Signals Policy Shift on PFAS Regulation
On April 28, the Environmental Protection Agency (EPA) announced a comprehensive slate of new and forthcoming actions aimed at curbing PFAS contamination across all environmental media. While the announcement may suggest continuity with the “whole-of-government” approach from the previous administration, there are indicators of a policy pivot under EPA Administrator Lee Zeldin. For ILMA members, several aspects of the announcement are particularly noteworthy.
Reporting Requirements
As expected, the agency will take steps to fulfill statutory reporting obligations under the 2020 National Defense Authorization Act. Under the Emergency Planning and Community Right-to-Know Act, the EPA will continue to add PFAS to the Toxic Release Inventory program. It will also implement reporting rules under the Toxic Substances Control Act (TSCA). However, the EPA indicated that its reporting policy will reflect legislative intent “without overburdening small businesses and article importers,” signaling a potential return to burden-reduction mechanisms, such as the de minimis exemption.
On the TSCA reporting rule, ILMA has been advocating for a deadline extension to allow time to incorporate burden-reduction tools into the TSCA reporting scheme, thereby avoiding impractical trace-level investigations that disproportionately affect small businesses.
Remediation Liability
Another important signal of a shift relates to the Superfund law, which imposes financial liability for the remediation of PFAS contamination. Here, the EPA emphasized the importance of shielding “passive receivers” from cleanup liability. While the Biden administration had formalized an enforcement discretion policy to protect utilities and local services, the new approach may expand those protections to industrial passive receivers. This shift is particularly relevant to lubricant manufacturers, which may encounter PFAS incidentally.
The EPA also addressed its current PFAS policy under the waste management law, noting that it will explore how to “better use” statutory authorities to manage PFAS in waste streams. It is likely that the agency’s earlier proposal to apply the Corrective Action remediation program to PFAS may now be withdrawn.
Water Quality
Regarding water quality regulation, the policy direction appears more consistent. The EPA will continue to develop effluent limitations guidelines to reduce PFAS discharges and will enforce Clean Water Act provisions to prevent further contamination. The agency also indicated that maximum contaminant levels under the Safe Drinking Water Act will remain part of the PFAS agenda but will explore options to mitigate the cost impact on ratepayers.
ILMA is actively monitoring federal developments that may affect the lubricants industry and has established a PFAS Task Force to provide guidance and best practices for navigating the evolving PFAS landscape.
To learn more about the PFAS Task Force, email ILMA’s Regulatory Counsel Jorge Roman at jroman@bmalaw.net.