Recent State and Federal Actions to Address PFAS

Originally published in the October 2023 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.

EPA TSCA Framework for New PFAS and PFAS Uses

In June 2023, the United States Environmental Protection Agency (EPA) announced a framework for evaluating new per- and poly-fluoroalkyl substances (PFAS) and new uses of existing PFAS. EPA, Framework for TSCA New Chemicals Review of PFAS Premanufacture Notices (PMNs) and Significant New Use Notices (SNUNs) (6-28-2023). Currently, new PFAS or new uses require notice to the EPA under the Toxic Substances Control Act (TSCA) Section 5, 15 U.S.C. § 2604.  EPA then has 90 days to conduct an evaluation to determine if the new PFAS or new use presents an unreasonable risk of injury to health or the environment. If the EPA finds such risk, it will issue a Section 5(e) order prohibiting or limiting the manufacture, processing, distribution in commerce, use or disposal to the extent necessary. 

This process under TSCA will now be conducted according to EPA’s planned approach described in the new framework. This will involve an extensive evaluation EPA has deemed necessary because of the challenge new PFAS and new uses present when there is often insufficient information to quantify the risk. The process will normally include testing requirements for any PFAS that are likely to be persistent, bioaccumulative and toxic (PBT) chemicals. If test results indicate potential risks, EPA will require additional testing and risk mitigation. If additional testing and risk mitigation fail to address the concern, EPA would prohibit the manufacture or new use.

MN PFAS Remediation Guidance

Minnesota also acted recently to address PFAS. The Minnesota Pollution Control Agency (MPCA) released a draft PFAS Remediation Guidance for public review and comment. MPCA Remediation Division PFAS Guidance (Draft) (August 2023). The PFAS Remediation Guidance outlines what approach MPCA will take to identify, investigate, evaluate, and remediate PFAS contamination at sites in the MPCA remediation program. The remediation program includes Superfund sites (sites remediated under the Minnesota Environmental Response and Liability Act, Minn. Stat. ch. 115B, at the state level and under the Comprehensive Environmental Response, Compensation and Liability Act at the federal level) and Brownfield sites (sites remediated under the Voluntary Investigation and Cleanup (VIC) program). The guidance includes direction to assess these sites for current and historical use of PFAS and proximity to potential PFAS sources to determine if PFAS sampling is necessary.  For Brownfield sites, additional consideration is given to whether the site activities will create an exposure pathway relative to potential PFAS contamination and whether the VIC applicant wants PFAS to be included in the assurance letter. 

The PFAS Remediation Guidance also includes a summary of risk-based values (RBVs) currently available in Minnesota for assessing risks to human and ecological health. The guidance states that the RBVs should not be interpreted as default cleanup factors and additional lines of evidence should be considered. 

Public comment on the PFAS Remediation Guidance will be accepted until October 5, 2023.