On February 14th, the U.S. Environmental Protection Agency (EPA) introduced its PFAS Action Plan to better understand PFAS chemicals and the extent of existing contamination, prevent future contamination, and more effectively communicate with the public regarding PFAS and associated health and environmental risks.

PFAS, a group of chemicals created in the 1940s, exist in a broad array of consumer and industrial products. Due to the widespread use of such products, PFAS may be found in soil, surface waters and groundwater at or near manufacturing facilities, as well as sites where firefighting foams containing PFAS have been used or tested.

The Action Plan is the latest in a series of measures EPA has taken to deal with PFAS. For instance, in 2016, EPA issued a Drinking Water Health Advisory Level of 70 parts per trillion (ppt) for two PFAS chemicals: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The agency also recently created a PFOA Stewardship Program under the Toxic Substances Control Act (TSCA) aimed at phasing out the manufacture of PFOA in the United States. Last year, EPA convened a National Leadership Summit to share information and identify specific short-term solutions, some of which are now included in the Action Plan.

The Action Plan identifies “key actions” to understand and address PFAS, summarized below:

• Drinking Water

EPA will propose a national drinking water Maximum Contaminant Level (MCL) for PFOA and PFOS in 2019. Though the agency has not indicated a potential standard, it continues to cite 70 ppt as a safe level of PFOA and/or PFOS. By contrast, the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (“ATSDR”), in a 2018 draft report, calculated Minimal Risk Levels which reportedly equate to 11 ppt for PFOA and 7 ppt for PFOS. Similarly, the New York State Drinking Water Council, in December 2018,  recommended a statewide MCL of 10 ppt for PFOA and 10 ppt for PFOS.

EPA will also evaluate whether to propose MCLs for other PFAS chemicals.

• Cleanup

EPA will continue the process of listing PFOA and PFOS as hazardous contaminants under the Comprehensive Environmental Response, Compensation, and Liability Act, which it initiated last year.

In addition, EPA anticipates developing interim cleanup recommendations to address groundwater contaminated with PFOA and PFOS in 2019. Further, EPA seeks to determine by 2021 whether to issue National Recommended Water Quality Criteria based on human health for PFAS pursuant to the Clean Water Act. These criteria serve as guidance for state and tribal water quality standards.

More broadly, EPA plans to identify additional treatment and remediation options to address PFAS contamination in 2019.

• Toxics

EPA plans to continue proposing Significant New Use Rules for PFAS pursuant to TSCA, under which EPA is required to determine whether the use of these chemicals presents unreasonable risk and, if appropriate, take action to address those risks (for instance, by limiting or prohibiting the manufacture of certain PFAS chemicals).

• Monitoring

EPA will propose nationwide drinking water monitoring requirements for PFAS in the agency’s next updated Unregulated Contaminant Monitoring Rule in 2020. Six PFAS chemicals were previously included in the 2012 iteration of this rule; however, newer monitoring methods can now detect a larger variety of PFAS chemicals at lower minimum reporting levels.

• Research

EPA will finalize toxicity assessments for two types of PFAS chemicals in 2019: GenX chemicals (which are fluoropolymers made using a technology known as “GenX”) and PFBS (a replacement chemical for PFOS). The agency will develop draft toxicity assessments for five other PFAS chemicals (PFBA, PFHxA, PFHxS, PFNA, and PFDA) in 2020.

EPA will also develop methods to identify the presence of PFAS in media other than drinking water (such as air, soil, and other solids).

• Enforcement

EPA envisions an enforcement strategy in which state and local authorities represent the first line of defense, and federal enforcement authorities are used as appropriate (for instance, if state and local authorities are not available or responsible parties fail to voluntarily address PFAS).

• Risk Communications

EPA plans to work with other federal agencies, states, tribes, and local stakeholders to develop a risk communication toolbox in 2019 which will provide multimedia materials and messaging about PFAS-related risks for use with the public.

 

The release of the Action Plan has highlighted the emerging issue of PFAS contamination as a key focus for EPA over the next few years. It remains to be seen whether and how EPA will achieve the goals set forth therein.

Sive, Paget & Riesel is tracking EPA’s efforts to implement the PFAS Action Plan. For additional information about PFAS, contact Mark Chertok, Margaret Holden, or Sahana Rao.