EPA Releases PFAS Action Plan

The EPA Recently Released its Much-Anticipated PFAS Action Plan…

Last month, the Environmental Protection Agency (EPA) released its much-anticipated action plan for addressing per- and polyfluoroalkyl substances, a group of chemicals collectively referred to as PFAS. The EPA’s PFAS Action Plan outlines both short-term and long-term initiatives, although final regulations are still likely years away.

“The PFAS Action Plan is the most comprehensive cross-agency plan to address an emerging chemical of concern ever undertaken by EPA,” said EPA Administrator Andrew Wheeler. “For the first time in Agency history, we utilized all of our program offices to construct an all-encompassing plan to help states and local communities address PFAS and protect our nation’s drinking water. We are moving forward with several important actions, including the maximum contaminant level process, that will help affected communities better monitor, detect, and address PFAS.”

Health Risks Associated With PFAS

PFAS are often referred to as “forever chemicals” because it takes so long for them to break down. The chemicals, which were formerly used in non-stick products, firefighting foam, and food packaging, have also been linked to a number of health conditions, including cancer and low birth weight.

As discussed in greater detail in a prior article, U.S. manufacturers have largely stopped using PFAS in favor of shorter-chain replacements, which are generally less bioaccumulative and potentially less toxic. However, prior discharges have resulted in very high levels of the chemicals in many public and private water systems. Last year, EWG concluded that an estimated 1,500 U.S. drinking water systems that supply 110 million people could have levels of PFAS that exceed what EWG deems safe. In some cases, contamination is higher than the lower standard currently offered by the EPA.

While the federal government does not currently regulate PFAS, the EPA’s health guidelines recommend a health limit of 70 parts per trillion of PFOA and PFOS combined. In the absence of federal regulations, many states have enacted their own regulations. In New Jersey, the Department of Environmental Protection (NJDEP) set a “Maximum Contaminant Limit” of 14 parts per trillion (ppt) for PFOA in 2017, which is currently the strictest PFAS regulation in the country. In September 2018, the agency established the nation’s first-ever MCL for perfluorononanoic acid (PFNA).

EPA’s PFAS Action Plan

In May 2018, EPA convened a two-day National Leadership Summit on PFAS. Thereafter, the agency conducted a series of visits with communities directly impacted by PFAS. The EPA’s PFAS Action Plan was developed based on feedback from these events in addition to information received from approximately 120,000 comments submitted to the public docket.

The EPA’s Action Plan is divided into several categories: drinking water; clean up; enforcement; monitoring; research; and risk communications. Below are a few of the most significant short-term actions:

• The EPA plans to move forward with establishing drinking water standards (MCLs) for PFOA and PFOS under the Safe Drinking Water Act (SDWA).
• The EPA has initiated the regulatory development process for listing PFOA and PFOS as CERCLA hazardous substances, which would make it possible to hold responsible parties liable for remediation. In the meantime, the EPA is in the process of developing interim recommendations for addressing groundwater contaminated with PFOA and PFOS to address cleanup goals before these chemicals are added to the hazardous substance list. 
• The EPA plans to develop interim cleanup recommendations in 2019 to address groundwater contaminated with PFOA and PFOS. According to the agency, the recommendations will provide a starting point for making site-specific cleanup decisions and may be considered for federal facility and private-party cleanup under CERCLA, RCRA corrective action programs, and state cleanup programs, where appropriate.
• The EPA plans to finalize toxicity assessments for PFBS and GenX chemicals in 2019 and draft toxicity assessments for five additional PFAS in 2020.
• The EPA plans to continue its review new of PFAS chemicals and issue supplemental proposed Significant New Use Rules (SNUR), which would prohibits new uses for these chemicals until the EPA determines whether the significant new use presents an unreasonable risk and takes appropriate actions as required by Toxic Substances Control Act (TSCA) to address any unreasonable risk.
• The EPA plans to rely on state and local authorities to pursue enforcement actions involving PFAS contamination. However, the agency may step in when contamination poses an imminent and substantial endangerment to public health or welfare.
• The EPA plans to expand current drinking water Method 537 to include GenX and other PFAS, as well as develop new methods for detecting short-chain PFAS.

NJDEP’s Response

The NJDEP joined environmental groups in criticizing the EPA for not taking more aggressive and expeditious action. “The U.S. Environmental Protection Agency’s announcement today is disappointing at a time when there is a critical need to address perfluoroalkyl and polyfluoroalkyl substances (PFAS) known to be present in America’s drinking water,” NJDEP said in a press statement. “The Trump Administration is leaving millions of Americans exposed to harmful chemicals for too long by choosing a drawn-out process that will delay establishing a federal maximum contaminant level (MCL) for PFAS.”

What’s Next?

The majority of the EPA’s proposed actions require additional public input and final agency action, which means the federal regulation of PFAS is not yet imminent.  The attorneys of Scarinci Hollenbeck’s Environmental Law Group will continue to monitor the EPA and NJDEP actions to address PFAS and post updates as they become available.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.