EPA Unveils Its Long-Awaited PFAS Action Plan –Does It Represent Any Progress?

Downey Brand LLP
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On February 14, 2019, EPA unveiled its action plan for per- and polyfluoroalkyl substances (PFAS). PFAS are highly fluorinated manmade compounds that are reported to have a variety of adverse health effects. PFAS are resistant to heat, water and oil. These properties have led to use of PFAS compounds in a wide-range of products designed to be waterproof, stain‑resistant or non‑stick, such as carpets, furniture, cookware, clothing and food packaging. They are also used in fire retardant foam at airfields and industrial processes involving flammable and combustible liquids. PFAS compounds are resistant to chemical breakdown, which is why they have been found in drinking water supplies across the country, and also why there has been extensive public pressure for EPA to take action on PFAS.  The PFAS Action Plan represents the first time EPA has built a multi-media, multi-program, national communication and research plan to address an emerging environmental challenge like PFAS. 

The Action Plain contains a host of short and long term efforts to address widespread concern over PFAS contamination, including:

  • Drinking Water:  EPA is moving forward with the maximum contaminant level (MCL) process outlined in the Safe Drinking Water Act (SDWA) for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonate (PFOS)- two of the most well-known and prevalent PFAS chemicals, and will propose a regulatory determination by the end of 2019.
  • Clean Up:  EPA has begun the regulatory process of listing PFOA and PFOS as hazardous substances, and will issue interim groundwater cleanup recommendations for sites contaminated with PFOA and PFOS.
  • Enforcement:  EPA has said that it will use available enforcement tools to address PFAS contamination, and assist states in doing so.
  • Monitoring:  EPA is proposing to monitor PFAS in drinking water under the agency’s Unregulated Contaminant Monitoring Program.  EPA will also consider PFAS chemicals for listing in the Toxics Release Inventory to help identify where the chemicals are being released.
  • Research:  EPA plans to develop new analytical methods to detect more PFAS chemicals in drinking water, soil and in groundwater.  EPA’s research will also include developing better treatment technologies and options for removing PFAS from drinking water at contaminated sites.
  • Risk Communication:  EPA will work across the agency, and the federal government to develop a PFAS risk communication toolbox that includes materials that states, and others can use to communicate with the public.

Many critics are already saying that EPA’s plan falls far short of what is needed to protect against harm from the substances, and that EPA is essentially just punting on action to tackle a serious public health risk. Environmentalists find it particularly troubling that EPA has left the door open to the possibility that it may choose not to regulate PFOA and PFOS under the SDWA. While EPA has committed to a regulatory determination by the end of the year, if it does proceed to develop an MCL, it would likely take years.

In the absence of guidance or enforceable clean-up levels from EPA, many states have et or are considering levels significantly more stringent than EPA's non-regulatory health advisory level of 70 parts per trillion for PFOA and PFOS. And, a draft risk assessment released by the Agency for Toxic Substances & Disease Registry in 2018 suggested EPA's level was not adequately protective. California has not yet set any enforceable levels for PFAS, and California agencies are still developing their regulatory approach to PFAS.  Some California agencies are already requiring sampling for PFAS at sites where fire-fighting foam may have been used.  So far, the vast majority of those sites are military, but in the future it is likely that the requirement to sample for PFAS will extend to other sites where PFAS may have been used historically.

While EPA’s PFAS Action Plan represents some action by the agency to address PFAS, it is not yet clear whether any of it will prove helpful to those areas with the heaviest PFAS contamination.  One thing that EPA’s PFAS Action Plan will do is increase the likelihood that testing for PFAS in drinking water and groundwater in California will be required, and potentially increase required clean up where they are found.

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