PFAS are currently the subject of significant regulatory action, research, litigation, and public debate based on recent reports which claim that two PFAS, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonate (“PFOS”), that were formerly used in a variety of industries may be carcinogens or reproductive toxicants. Several states have begun investigating and regulating the levels of PFAS in drinking water, and in some cases, for example Minnesota and New York, have sued manufacturers of the chemicals themselves or products that historically contained PFOA and PFOS, bringing claims for the recovery of natural resource damages, trespass, nuisance, and negligence.
EPA has historically addressed these chemicals through a stewardship program under which the companies that manufactured PFOA and PFOS agreed to voluntarily stop their production, and companies that used PFOA and PFOS agreed to stop importing them. Now, however, Acting Administrator Wheeler is under increasing bipartisan pressure to take federal regulatory action.
Into the teeth of this debate, EPA unveiled its much-anticipated PFAS Action Plan (the Plan) on February 14, 2019. The full Action Plan can be found here, and a helpful one page summary is also available here. The Action Plan does not actually make any determinations, or propose or set any new regulatory standards for this wide group of chemicals. Instead, it provides a comprehensive preview of the next several years’ worth of federal investigation into, and regulation of these diverse chemicals which are used in a variety of industries to make products including water resistant clothing and athletic equipment, non-stick cookware, water and grease resistant food packaging, and fire-fighting foam.
Specifically, the Plan focuses on a number of initiatives that generally impact four areas: groundwater, drinking water, human health risks, and chemical and consumer product regulation. Below we summarize the key components of the Plan for each of these four Impacted Areas.
We will provide a targeted analysis of each of the Impacted Areas identified in the Action Plan in the weeks to come, focusing on the specific proposed steps, and the anticipated impact on different industry groups. In the meantime, note that EPA has already started the process of listing PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), and appears committed to completing that process. Once complete, the listing has far-reaching consequences because it will allow EPA to require “responsible parties” to pay to clean up PFOA and PFOS contamination in groundwater on, and emanating from their property.
Overall, the Action Plan provides manufacturers, users, and consumers of PFAS with an opportunity to assess where and how best to engage to ensure that any new regulations reflect the best science regarding PFAS. Bryan Cave Leighton Paisner LLP regularly counsels our clients on environmental investigation, remediation, due diligence, and real estate transactions, and would be happy to discuss any further questions that you might have.