- U.S. EPA has issued an action plan for an emerging group of contaminants, per- and polyfluoroalkyl substances (PFAS), and is beginning the process of setting an enforceable drinking water standard for certain PFAS compounds and designating two PFAS compounds as hazardous substances under CERCLA.
- PFAS compounds have been used for decades in countless products including fire-fighting foam and commercial products like food packaging, cleaning products, water-repellent fabrics and non-stick cookware.
- PFAS compounds may be found at sites throughout the country and are currently very difficult to clean up using traditional remediation technologies.
On February 14, 2019, the United States Environmental Protection Agency gave the regulated community a unique and long-anticipated Valentine’s Day gift, unveiling its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan. The action plan, summarized below, contains five primary components, each of which could have a significant impact on current and future environmental cleanups and the regulatory community at large.
Background on PFAS Regulation
PFAS is a broad term for a large group of man-made chemicals that have been used for decades in a wide range of industrial and commercial products, such as aqueous fire-fighting foam (AFFF) and commercial products like food packaging, cleaning products, water-repellent fabrics and non-stick cookware.
Beginning in the 1990s, states began to evaluate the potential health effects of PFAS compounds and the extent to which these compounds were present in drinking water supplies or other media such as air and ground and surface waters. In response, several states began issuing non-enforceable health-based screening, or action, levels. In 2016, EPA followed suit by establishing a PFAS “health advisory level” of 70 parts per trillion (PPT). In the past several years, despite no enforceable Maximum Contaminant Level (MCL) under the federal Safe Drinking Water Act or other enforceable cleanup goals, many states have begun to request sampling for PFAS at closed landfills and other historical sites. Many state attorneys general, including those of Michigan, Minnesota, New York and Ohio, have also filed actions against manufacturers of PFAS or PFAS-containing products, claiming damage to state resources. In early 2019, New Jersey became the first state to establish an enforceable drinking water standard for one PFAS compound, perflourononanoic acid (PFNA), at 13 PPT, which became effective in 2019 for certain public water supply systems.
Current Federal Actions – The PFAS Action Plan
Federal interest in PFAS regulation has similarly accelerated in recent years. On January 14, 2019, H.R. 535 was introduced in Congress. This bill would require EPA to designate all PFAS as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) no later than one year after enactment.
On February 14, 2019, EPA issued its PFAS Action Plan, which is the initial culmination of a national leadership summit held in May 2018, subsequent listening sessions in several states and the opening of a docket for public comment. During that process, EPA received over 120,000 comments. The PFAS Action Plan kicks off the next step toward formal federal regulation of PFAS compounds. The Action Plan, which EPA Acting Administrator Andrew Wheeler described as “the most comprehensive, cross-agency action plan for a chemical of concern ever undertaken by the Agency,” lists five key PFAS-related challenges and EPA’s proposed actions to address them:
- MCL: To address the concern over the absence of an MCL for PFAS in drinking water, EPA plans to take the first step in the regulatory process to set an MCL by proposing a national drinking water determination for two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS). This action, to begin in 2019, is noteworthy for many reasons, including because this would be the first new MCL established since the passage of the Safe Drinking Water Act in 1996.
- Enforcement: EPA has begun the process to list PFOA and PFOS as CERCLA hazardous substances to provide legal authority for the agency to require parties to perform or pay for remedial actions at sites with those compounds.
- Cleanup Levels: To provide guidance for groundwater cleanups, EPA is aiming to develop interim cleanup recommendations in 2019. These levels would be seen as a starting point for site-specific cleanup actions.
- Risk Assessments: To further evaluate the potential health impacts of PFAS exposures, EPA will seek to finalize draft toxicity assessments for certain PFAS chemicals in 2019 and 2020.
- PFAS in Commerce: Since 2016, EPA has used authority under the Toxic Substances Control Act (TSCA) to review new PFAS usage and issue Significant New Use Rules (SNURs) for PFAS. It will use new authority under the TSCA amendments to further this process.
EPA’s PFAS Action Plan represents the next significant step in the ongoing efforts of state, and now federal, regulatory agencies to better understand potential health risks from PFAS in the environment and to take action, as necessary, to clean up existing sources and prevent further releases.
Given the potential ubiquitous nature of PFAS in the environment and the current challenges in remediating these compounds, these developments will have significant effects on the regulated community and should be considered in connection with past and ongoing remediation projects, due diligence in connection with property transactions and mergers and acquisitions, and other matters. Thompson Hine will continue to closely monitor the PFAS Action Plan and associated developments and provide guidance to our clients to address PFAS-related issues.