The US Environmental Protection Agency (EPA) on February 14 issued its Action Plan for Per- and Polyfluoroalkyl Substances (PFAS), identifying a number of short- and long-term steps that it plans to take to identify the risks associated with PFAS and mitigate their impacts.
Since the 1940s, PFAS, which are synthetic chemicals, have been used in a variety of consumer products and industrial processes, including firefighting foams, chemical processing, food packaging, and stain- and water-resistant coatings. The chemicals are commercially useful because they are chemically and thermally stable, and thus demonstrate resistance to heat, water, and oil. These same characteristics, however, make PFAS persistent, as they remain in the environment and human body for long periods of time once released. Although EPA has not officially classified PFAS as to their carcinogenicity, the International Agency for Research on Cancer (part of the World Health Organization) has identified one type of PFAS, perfluorooctanoic acid (PFOA), as “possibly carcinogenic to humans.”
Due to these concerns, in 2006, EPA and eight PFAS manufacturers entered into a “stewardship program,” which aimed to voluntarily phase out long-chain PFAS in favor of shorter-chain replacements, which are less bioaccumulative and potentially less toxic. EPA has also issued a nonbinding health advisory of 70 parts per trillion for PFOA and PFOS. In recent years, due to heightened awareness of PFAS from high-profile lawsuits in Hoosick Falls, NY, and Parkersburg, West Virginia, a number of states have begun to implement state-specific maximum contaminant levels (MCLs) for drinking water and groundwater.
In recognition of stakeholders’ increased concerns, EPA, through its Action Plan, aims to address current PFAS contamination, prevent future contamination, and effectively communicate with the public about these chemicals. To address current contamination, EPA will begin the steps necessary to designate PFOA and perfluorooctane sulfonate (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Such a designation will enable federal and state agencies and private actors to bring CERCLA lawsuits against polluters to force them to clean up contamination or to pay for such cleanups.
Additionally, as part of CERCLA and Resource Conservation and Recovery Act (RCRA) corrective action programs, EPA plans to develop interim cleanup recommendations to address groundwater contaminated with PFOA/PFOS. Such recommendations will provide a starting point for federal, state, and private-party actors who are engaged in cleanups before they make more site-specific determinations.
To prevent future contamination, EPA intends to establish MCLs for PFOA and PFOS pursuant to the Safe Drinking Water Act (SDWA). Once these MCLs are established, public drinking water systems will be required to test water and report these results to consumers, state agencies, and EPA. If the level of PFOA/PFOS exceeds the MCL, the water systems will be required to take steps to reduce the amount of PFOA/PFOS back to levels below the MCL. While EPA is establishing MCLs for these two contaminants, it will also gather and evaluate additional information to enable it to develop MCLs for broader classes of PFAS during the next Unregulated Contaminant Monitoring Rule monitoring cycle.
Pursuant to the Toxic Substances Control Act (TSCA), as amended by the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act, EPA also plans to promulgate a number of Significant New Use Rules (SNURs). Once promulgated, these SNURs will require manufacturers and processors to notify EPA before PFAS are used in new ways that may create human health and ecological concerns. Once EPA is notified, it will then determine whether the new use presents an unreasonable risk and, if so, take appropriate actions to address the risk.
Finally, EPA is planning a number of actions to enable it to effectively communicate with the public about PFAS. For example, EPA plans to conduct research into the (1) human health and ecological effects of PFAS exposure; (2) sources, fate and transport pathways, and exposures to humans and the ecosystem; (3) costs and effectiveness of different removal/remediation methods; and (4) ways that EPA can support stakeholders using science to protect public health and the environment. These research activities will be conducted on a longer-term time horizon—more than two years—and will involve EPA coordination and cooperation with federal and state agencies, academia, industry, and nongovernmental organizations. In order to allow concerned citizens and other stakeholders to quickly access information on PFAS, EPA has updated its CompTox Chemistry Dashboard to create a clearinghouse of chemical information.
EPA intends to commence many of these steps during 2019. However, some non-groundwater specific aspects of the Action Plan, such as research into the potential atmospheric transport of PFAS, is not anticipated to commence until 2022. Some aspects of the announced Action Plan have come as a surprise, as just a few weeks ago, certain news outlets were reporting that EPA would not be issuing new MCLs under the SDWA. Many stakeholders see EPA’s decision as a positive development, as some state and local actors have lamented that lack of EPA guidance has left states to implement varying standards, possibly based on a less-than-complete picture.
If you have any questions regarding this LawFlash or may be impacted by EPA’s upcoming regulations, please contact any of the following Morgan Lewis lawyers: