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EPA’s PFAS Action Plan, One Year Later

EPA released its PFAS Action Plan in February 2019, and we highlighted at that time the key provisions of the plan. Now, a year later, let’s take a look at what EPA has accomplished thus far. 

Maximum Contaminant Level (MCL) 

Setting national MCLs under the Safe Drinking Water Act has been a hot topic in national and state PFAS regulatory and legislative debates over this last year. Existing federal regulations and past precedent reflects the prescriptive, deliberative process EPA must engage in before promulgating MCLs. 

EPA’s PFAS Action Plan committed the agency to moving forward with the complex regulatory process for evaluating MCLs for PFOA and PFOS, two chemicals in the PFAS family for which EPA has already set lifetime health advisory levels. Indeed, EPA, at the beginning of December 2019, sent proposed regulatory determinations to the Office of Management and Budget (OMB), a necessary step in the federal interagency regulatory process. OMB typically uses its 90-day review period for such EPA actions.

Unregulated Contaminant Monitoring Rule (UCMR)

EPA uses its UCMR process for collecting information on possible contaminants that are not currently regulated by the Safe Drinking Water Act, and the PFAS Action Plan indicates that EPA would include various PFAS compounds in the next UCMR monitoring cycle. EPA targeted 2020 for its next proposed UCMR monitoring rule, but has not yet published any regulatory updates or other actions related to future UCMR rulemakings.  

Hazardous Substance and Cleanup Levels

In its PFAS Action Plan, EPA committed to designating PFOA and PFOS as hazardous substances under CERCLA. While EPA’s Unified Federal Agenda slated a proposal by the end of 2019, EPA has not yet proposed such regulations. EPA has, however, developed interim groundwater cleanup recommendations for use at sites being addressed under CERCLA and at federal-led RCRA corrective action sites, as it proposed in its PFAS Action Plan. EPA released the draft recommendations for comment in April 2019, and published the final guidance on Dec. 19, 2019.  

Toxic Release Inventory (TRI

EPA’s PFAS Action Plan stated that the agency would consider adding PFAS chemicals to the TRI reporting requirements. On Nov. 25, 2019, EPA released its pre-publication Advanced Notice of Proposed Rulemaking seeking comments on which compounds should be considered for inclusion in TRI reporting. It appeared in the Dec. 4, 2019 Federal Register and the public comment period ended Feb. 3, 2020.  

In the meantime, Congress acted to expand TRI reporting through the National Defense Authorization Act that was signed into public law by the president in January 2020. That law requires that facilities that manufacture, process or otherwise use roughly 160 PFAS compounds begin reporting under TRI in January 2020.  

Toxic Substances Control Act (TSCA) 

EPA had stated in its PFAS Action Plan that it would use its authority under TSCA’s New Chemicals Program to evaluate new uses of PFAS, including following up on its 2015 Significant New Use Rulemaking for certain long-chain PFAS. Recently, EPA sent a supplemental proposal to OMB for review that would ensure that certain persistent long-chain PFAS chemicals cannot be manufactured in or imported into the United States without notification and review under TSCA. OMB has not yet completed its review of that proposal.

Closing Data Gaps 

EPA’s PFAS Action Plan said it will continue research into three main areas, including human health and ecological effects, fate and transport, and remediation technologies. While EPA has not released any results of this research, the agency has published information and sought comment on new analytical methods.  

First, EPA expanded to 18 the number of PFAS compounds that can be analyzed for under EPA Method 537.1. Second, EPA released Method 533, which analyzes for 29 PFAS compounds using an isotope dilution method. These methods are only applicable to analyzing drinking water. Regulated entities are still anticipating an upcoming EPA analytical method for media other than drinking water (i.e., soil or groundwater).   

Continued Enforcement

EPA has not cited any particular PFAS enforcement initiatives, however, there has been increased focus on PFAS at certain Superfund sites. With EPA’s release of the interim groundwater screening levels, it is anticipated this activity will continue to increase. The main targets will be those sites that are most likely to have PFAS contamination, particularly where impacted groundwater may be connected to or used as drinking water.

Risk Communication 

EPA has not yet released the risk communication “toolbox” that it outlined in its PFAS Action Plan, leaving states and localities to work on risk communication issues with stakeholders. This can result in mixed messages from the states, particularly where states are developing their own independent standards due to lack of federal action.  

What’s Next? 

In 2020, we expect EPA to keep marching forward in each of these areas. Some initiatives – especially those areas that require scientific research, such as cleanup technology and toxicology – are typically time consuming efforts for EPA with few opportunities to streamline existing procedures. Congress stepped in with its National Defense Authorization Act, mandating certain immediate or near term EPA actions (described above). Legislative efforts continue, such as the U.S. House of Representatives passing the PFAS Action Act in January 2020 that would, among other requirements, designate PFOA and PFOS as CERCLA hazardous substances. States, meanwhile, continue to move on multiple parallel paths to regulate PFAS on their own.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 50


About this Author

Tammy Helminski, Barnes Thornburg Law Firm, Grand Rapids, Environmental Law Attorney

Tammy L. Helminski is an associate in the Grand Rapids office of Barnes & Thornburg, and a member of the firm’s Environmental Law Department. Ms. Helminski has experience with environmental due diligence and risk evaluation, project management of large-scale remediation sites involving numerous parties, and assisting manufacturing and developer clients with environmental auditing and compliance. Her litigation experience includes representing clients in cases involving CERCLA, NEPA, RCRA and NREPA, as well as product liability, mold, asbestos, construction and contract litigation...

Jeffrey Longsworth, Barnes Thornburg Law Frim, Washington DC, Environmental Law Attorney

Jeffrey S. Longsworth is a partner in the Washington, D.C. office of Barnes & Thornburg LLP and the D.C. administrator of the Environmental Department, which was recently recognized as Tier 1 for national environmental litigation in the annual "Best Law Firms" ranking by U.S. News and Best Lawyers. He is involved in counseling and litigating issues that arise under federal environmental laws and regulations, with an emphasis on Clean Water Act matters, especially issues involving permitting, stormwater, effluent limitations guidelines, enforcement, inspections and spill prevention.

Mr. Longsworth was appointed to the EPA Federal Advisory Committee on Urban Wet Weather Flows, which was established in 1996. He frequently teaches environmental law courses around the country, and serves as editorial advisor to several industry publications. He has served on the Montgomery County (Maryland) Water Quality Advisory Board.

Mr. Longsworth serves as special environmental counsel to numerous national trade associations, industries, coalitions and state/municipal government agencies before federal and state regulatory and enforcement authorities. He works closely within the federal rulemaking process with the U.S. Environmental Protection Agency, Small Business Administration, and White House Office of Management and Budget, to name a few. Mr. Longsworth also works closely with many state regulatory agencies and advises clients and the firm’s legislative team on environmental issues arising under federal legislation.

Mr. Longsworth graduated from Amherst College in 1984 and received his J.D. in 1991 from the Catholic University of America Columbus School of Law, where he served as a member of the Law Review.

Mr. Longsworth is admitted to practice in the State of Maryland, the District of Columbia, and the U.S. Court of Appeals for the 4th, 7th, and 9th Circuits.