On February 14, 2019, at a public event in Philadelphia, Acting EPA Administrator Andrew Wheeler announced that EPA had completed an Action Plan to address growing concerns about public health risks from a class of long-lasting chemicals – perfluoroalkyl and polyflouroalkyl compounds, or PFAS – which have been detected in drinking water systems and groundwater throughout the United States.
EPA prepared its Action Plan after holding a series of public forums on the issue over the past year and its study of the health effects posed by these compounds. Last May, more than 200 federal, state, and local leaders from across the country convened in Washington to discuss steps to address PFAS compounds.
Background on PFAS Chemicals and Past Uses
PFAS compounds are man-made chemicals that have long been used in consumer products including water repellent fabrics, nonstick cookware, and grease-resistant paper products, as well as in firefighting foams used at airports and on military bases. Because PFAS compounds do not break down in the environment, they have become known as “forever chemicals.” PFAS compounds are not only persistent, they bio-accumulate. Long-term exposures have been associated with health problems that include thyroid disease, weakened immunity, infertility risks, and certain cancers.
The EPA Action Plan
EPA’s PFAS Action Plan is a 64 page document that explains how PFAS chemicals have been used in the past, and lays out a “multi-media, national communication and research plan to address an emerging environmental challenge like PFAS.”
This plan sets forth long-term and short-term actions that EPA will be taking, including:
- Drinking Water: EPA is moving forward with the maximum contaminant level (MCL) process outlined in the Safe Drinking Water Act for PFOA and PFOS—two of the most well-known and prevalent PFAS chemicals. By the end of this year, EPA will propose a regulatory determination, which is the next step in the Safe Drinking Water Act process for establishing an MCL. This rulemaking process will likely conclude with a final rule in late 2020 or early 2021.
- Hazardous Cleanups: EPA has begun the regulatory process for listing PFOA and PFOS as hazardous substances and will issue interim groundwater cleanup recommendations for sites (federal facilities and private) contaminated with PFOA and PFOS. Listing PFOA and PFOS as CERCLA hazardous substances will provide EPA with authority to require responsible parties to carry out and/or pay for response actions and may result in some past sites being reopened. EPA views this process as providing additional tools to help states and communities address existing contamination and enhance the ability to hold responsible parties accountable.
- Enforcement: EPA will use available enforcement tools to address PFAS exposure in the environment and assist states in enforcement activities.
- Monitoring: EPA will propose to include PFAS in nationwide drinking water monitoring under the next Unregulated Contaminant Monitoring Program which will require utilities to monitor to determine the presence and quantities of these compounds in the water supply. The agency will also consider PFAS chemicals for listing in the Toxics Release Inventory (TRI) to help the agency identify where these chemicals are being released. According to the Action Plan, EPA will also propose a new round of tap water sampling that will utilize lower detection levels in 2020. Air dispersion modeling of PFAS compounds is also included in EPA’s multi-media Action Plan.
- Research: EPA will develop new analytical methods so that more PFAS chemicals can be detected in drinking water, soil, and groundwater at even lower levels. These efforts will improve EPA’s ability to monitor and assess potential risks. EPA’s research efforts also include developing new technologies and treatment options to remove PFAS from drinking water at contaminated sites.
- Risk Communications: EPA is committed to working across the agency—and the federal government—to develop a PFAS risk communication toolbox that includes materials that states, tribes, and local partners can use to effectively communicate with the public. EPA also indicated that final toxicity assessments for additional PFAS compounds and GenX chemicals will be completed in 2019 and five more PFAS compounds will have draft toxicity assessments completed in 2020.
What’s Next, and What are the Impacts?
EPA will move forward with the process it outlined in its Action Plan to determine whether to set a MCL for two types of PFAS – PFOA and PFOS. While critics have already complained that EPA did not commit to set MCLs, EPA responded that setting MCLs is the agency’s intent if the scientific support exists to do so. Note that EPA has not set a new MCL since 1996, so the agency would be “charting new territory.” If MCLs are set, drinking water utilities will have new standards to comply with and communities will look to hold accountable companies and sources that have used PFAS or contributed to the contamination of drinking water sources. Given the process, if EPA did decide to set MCLs for PFOA and PFOS, the federal limits would likely take at least two years to go into effect.
By listing PFOA and PFOS as hazardous substances, companies that made products with these compounds or disposed of materials containing these compounds, will have to bear the remedial costs of soil and water cleanups. Such a listing could also bring new challenges for closed Superfund sites, or sites in the middle of remedial action implementation.
EPA is also exploring the possibility of requiring chemical manufacturers, paper mills and other industrial sources to report releases of PFAS compounds under the Toxic Release Inventory. If TRI reporting is required, the entities obligated to report will have to address very practical concerns associated with sampling protocols, laboratory methods, and supply chain assessment.
In addition to these actions proposed by EPA today, a number of States are moving ahead to establish their own regulatory thresholds for PFAS compounds. Seven states so far have adopted or proposed guideline levels for PFOA and/or PFOS, and other states are considering taking actions in the near term.
If you have questions about how this Action Plan might impact your business or facility, please reach out to your Michael Best attorney or any of the authors listed here. We have experience advising clients on these matters and will continue to track PFAS regulatory developments.