PFAS Update: 2022 Federal PFAS Regulatory Recap

As anticipated, 2022 was another eventful year for the regulation of per- and polyfluoroalkyl substances (“PFAS”) at the federal level.  The United States Environmental Protection Agency (“EPA”) took significant actions under a range of different regulatory programs and environmental statutes, and touched on key issues related to drinking water, site evaluation and cleanup, NPDES permitting, and chemical reporting.

While not intended to be a complete list, the following is an overview of some of those key developments, many of which are highlighted in EPA’s November of 2022 PFAS Strategic Roadmap:  A Year of Progress.

I. Clean Water Act and Drinking Water Actions

Drinking water impacts have been a major driver for regulatory action at both the state and federal levels over the last few years, and 2022 was no exception.

  • Health Advisory Levels. Perhaps the most significant action taken in the PFAS space by EPA this year was its new Health Advisory (“HA”) levels for four PFAS substances.  Although these levels are non-binding, the HAs may be used by different agencies to investigate and remediate PFAS substances.  They are also a precursor to Maximum Contaminant Levels (“MCLs”), and provide an indication of the range of what the MCLs values will be.  The HA levels are:
    • PFOA: 004 ppt (Interim Value)
    • PFOS: 02 ppt (Interim Value)
    • GenX/HFPO-DA: 10 ppt (Final Value)
    • PFBS: 2,000 ppt (Final Value)

As discussed in BCLP’s client alert, the HA values for PFOA and PFOS are significantly lower than the 70 ppt HAs for PFOA and PFOS (either individually or combined) that EPA published in 2016, and are orders of magnitude lower than the detection levels that are currently achievable.  Many have speculated that these incredibly low values are an indication that the MCLs for PFOA and PFOS will be similarly low.

II. TRI Reporting

The Toxics Release Inventory (“TRI”) Program is one of the primary ways that many companies are required to report their chemical usage.  The National Defense Authorization Act added 160 PFAS compounds to the TRI list in 2020, and EPA has subsequently added additional PFAS compounds to the list; however, those compounds have been subject to certain exemptions.  As discussed in BCLP’s client alert, in December 2022, EPA proposed classifying PFAS compounds as “Chemicals of Special Concern” on the TRI, thereby eliminating the use of the de minimis exemption for both manufacturers and suppliers.  This designation will significantly increase the scope of PFAS TRI reporting obligations.


By Emma Cormier, John Kindschuh, Thomas Lee, Bryan Cave, Leighton Paisner
January 19, 2023