August 18, 2022

Volume XII, Number 230

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Congress Is Fully Funding EPA's Implementation of Its PFAS Road Map but Insisting on Knowing when EPA Will Get to Its PFAS Destinations

Lara Beaven of Inside EPA reports that the House Appropriations Committee intends to give EPA every dollar it has requested to implement its ambitious and wide-ranging plan for addressing the ubiquitous "forever" chemicals known collectively as PFAS.

That EPA plan was presented in a PFAS Road Map released only about eight months ago.  It calls for the regulation of PFAS by pretty much every division of EPA. 

The PFAS Road Map was always going to take longer to implement than many may have hoped.  But, as EPA announced in the Road Map, there are "significant gaps" in the science necessary to make reasoned regulatory decisions about many PFAS.

On the one hand, it is totally appropriate for the Appropriations Committee to know when EPA will deliver the proposed PFAS regulations Congress is paying EPA to develop.

On the other hand, it won't help anyone if EPA shoots before it aims in response to pressure from Congress.

Less than two weeks ago, we all learned that EPA has already deviated from the PFAS Road Map by issuing new health advisory levels for certain PFAS ahead of the finalization of EPA's PFAS Toxicity Assessment and the establishment of actual drinking water standards for any PFAS.

The PFAS Road Map had called for EPA to publish new health advisory levels only for two groups of PFAS that didn't yet have health advisory levels while it worked toward the finalization of enforceable drinking water standards.

Instead EPA decided to dramatically decrease the Obama Administration EPA health advisory levels for certain PFAS that already had them and to do so before finalizing its PFAS Toxicity Assessment.   Some of the new health advisory levels are so low that they can't be reliably detected.

Hopefully EPA will thoughtfully and realistically respond to the Appropriation Committee's demand that it provide more information on how the funds it has requested, and will be provided, will be used to reach the many milestones specified in EPA's PFAS Road Map, and when.

And then hopefully Congress and everyone else will give EPA the time necessary to fill the "significant gaps" in the science necessary to regulate PFAS so we can all be confident in the result.

The committee says it appreciates EPA’s focus on PFAS, particularly as outlined in the agency’s FY22 PFAS spend plan, which the committee required EPA to develop in its previous spending legislation. But, the FY23 report language says, “the spend plan fails to make connections to key goals and deadlines highlighted in the PFAS roadmap.” Therefore, EPA “is directed to submit a PFAS spend plan for fiscal year 2023 that specifies how the Agency plans to allocate fiscal year 2023 funds in connection to the items identified in the PFAS Strategic Roadmap.” The report language does not give a date by which the committee expects the agency’s FY23 PFAS spend plan.

 

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 180
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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