On Wednesday, President Joe Biden’s pick to lead the Environmental Protection Agency (EPA), Michael Regan, underwent his confirmation hearing. His nomination received largely bi-partisan support, so it is expected that Mr. Regan will be confirmed as the new Administrator of the EPA in the near future. While Mr. Regan was questioned on many topics during his hearing, his statements supported two key points that we have been predicting for several months: (1) that Biden’s EPA will place top priority on PFAS and (2) that the EPA’s PFAS regulations under the Safe Drinking Water Act are coming – soon. If companies concerned about PFAS issues take one thing away from Mr. Regan’s testimony before the confirmation committee, it is that businesses must absolutely prepare now and assess the multitude of ways that their practices (whether intentional / knowing or not) are contributing to PFAS pollution in drinking water sources. Failing to do so could lead to significant fines, cleanup costs, and business interruption headaches.
What Are PFAS and Why Are They a Concern?
Per- and poly-fluoroalkyl substances (“PFAS”) are a class of over 7,000 manmade compounds. Chemists at 3M and Dupont developed the initial PFAS chemicals by accident in the 1930s when researching carbon-based chemical reactions. During one such experiment, an unusual coating remained in the testing chamber, which upon further testing was completely resistant to any methods designed to break apart the atoms within the chemical. The material also had the incredible ability to repel oil and water. Dupont later called this substance PFOA (perfluorooctanoic acid), the first PFAS ever invented. After World War II, Dupont commercialized PFOA into the revolutionary product that the company branded “Teflon.”
Only a short while later, 3M invented its own PFAS chemical – perfluorooctane sulfonate (PFOS), which they also commercialized and branded “Scotchgard.” Within a short period of time, various PFAS chemicals were used in hundreds of products – today, it numbers in the thousands.
The same physical characteristics that make PFAS useful in a plethora of commercial applications, though, also make them highly persistent and mobile in the environment and the human body – hence the nickname, “forever chemicals.” While the science is still developing regarding the extent of possible effects on human health, initial research has shown that PFOA and PFOS are capable of causing certain types of cancer, liver and kidney issues, immunological problems, and reproductive and developmental harm.
PFAS Under The Safe Drinking Water Act
We previously predicted that the first PFAS issue likely to receive immediate attention by the Biden-Harris administration is the EPA’s regulation of PFAS under the Safe Drinking Water Act (SDWA). The SDWA requires the EPA to publish a Contaminant Candidate List (CCL) every five years and explain why various contaminants are or are not in need of regulation. In February 2020, the EPA included two types of PFAS – PFOA and PFOS – in its CCL, which thereby triggered certain deadlines for the EPA. The EPA must propose a Maximum Contaminant Level (MCL) and a National Primary Drinking Water Regulation (NPDWR) within twenty-four months for PFOA and PFOS. We predict that the Biden-Harris administration’s EPA will accelerate this timetable and propose a MCL and NPDWR in 2021. Once the proposals are published, the EPA will then have a maximum of 18 months to publish a final MCL and NPDWR.
On January 19, 2021, a big step forward occurred, albeit without any real media coverage or fanfare, when the EPA announced that it will be taking the final step needed to issue a PFOA and PFOS final regulatory determination under the SDWA. “After evaluating more than 11,000 public comments, the agency is taking the next step to regulate these two PFAS [PFOA and PFOS] under the processes laid out in the Safe Drinking Water Act by issuing final regulatory determinations for PFOA and PFOS. EPA will now initiate the process to develop a national primary drinking water regulation for these two PFAS, which will include further analyses, scientific review, and opportunity for public comment. Additionally, EPA intends to fast track evaluation of additional PFAS for future drinking water regulatory determinations if necessary information and data become available” (emphasis added).
PFAS Statements By Michael Regan
While much of the media attention on Mr. Regan’s confirmation hearing focused on his statements on climate change initiatives by the EPA, Mr. Regan made is explicitly clear that in the order of EPA priorities, PFAS is right behind climate change, as he indicated that PFAS under his command would be a “top priority.” When specifically questioned about whether he would set PFAS drinking water standards, he responded: “we will pursue discharge limits. We will pursue water-quality values. We will pursue all avenues that we can while we’re developing these rule-making processes to give the proper signals to states, so that states can take the appropriate actions like we’ve had to take in North Carolina.” He added: ““What I plan to do is sit down and spend some time with the staff at EPA, with our counsel, to understand the multiple avenues I believe we have at our fingertips.”
While this statement may seem non-committal, it is a measured and expected response. It was extremely unlikely that Mr. Regan would give a definitive statement at the hearing that the EPA under his command would set PFAS drinking water limits. Doing so would be an argument for any legal challenges to a final EPA rule, as the argument could be made that the EPA “had its mind made up” and ignored public comments opposing whatever final rule the EPA puts forth. However, his statement that the EPA would look to “water quality values” for PFAS can be interpreted to signal that drinking water standards will be established.
Taking into account (1) the EPA under Mr. Regan committing to making PFAS a top priority, (2) the EPA moving forward to the final rulemaking phase the day before Biden was sworn in, and (3) Mr. Regan’s statements that an EPA under his command would explore every avenue possible to pursue “water-quality values”, it further resolves questions and doubts as to whether the Biden EPA will set PFAS drinking water standards.
What Will the Impact Be To Businesses?
Many companies assume that any regulation under the Safe Drinking Water Act will not impact them, as virtually no industries, aside from water utilities, have any direct impact on drinking water. However, this belief provides a false sense of security that must immediately be dispelled. There are three specific ways that drinking water limits for PFAS will trigger scrutiny on environmental practices of businesses: (1) effluent discharges into water sources; (2) waste sent to landfills that may leach into drinking water sources; and (3) properties abutting or in the vicinity of water sources.
Direct industry effluent discharges into water sources (which may not be drinking water sources, but may feed into drinking water sources) will be the low-hanging fruit target for local environmental agencies at the state level. Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS. Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water.
Waste management companies and businesses that send their industrial waste to landfills are also well advised to do a full compliance check. While many companies do not use PFAS directly in their own manufacturing processes, do the parts or other raw materials used in the manufacturing process have PFAS contamination issues? Are landfills doing due diligence to determine if they are accepting PFAS waste? A company could unknowingly send PFAS-laden industrial waste products to landfills, and so these are questions that companies must get answers to. Over time, it is possible that the PFAS may leach out of the landfill and find their way into local water sources. Environmental regulatory agencies will look to these sites, the owners of the sites, and potentially companies sending waste to the sites as responsible parties for PFAS contamination in waterways.
Finally, even businesses having nothing to do with PFAS or manufacturing from which PFAS could be a contaminant need to follow news regarding PFAS regulations. For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)? What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration? If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses.
Our prediction remains that in 2021, PFAS under Biden’s administration will see federal-level PFAS regulation with respect to drinking water. This will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs.