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U.S. EPA Releases Long-Awaited PFAS Action Plan

Chemicals Under Increasing Scrutiny

This past Valentine’s Day, U.S. Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler announced EPA’s action plan for regulating per- and polyfluoroalkyl Substances (PFAs), which are a class of synthetic chemicals that have come under increasing scrutiny.

The Action Plan is a multipronged strategy whose primary components include (1) establishing a binding drinking water standard under the Safe Drinking Water Act (“SDWA”) for two of the most common types of PFAs – PFOA and PFOS; (2) listing PFOA and PFOS as “hazardous substances” under CERCLA; (3) using the agency’s considerable enforcement authority to require the remediation of soil or groundwater contaminated with PFAs above EPA’s existing health advisory levels of 70 ppt; and (4) continuing to assess the potential health effects associated with PFAs, including so-called “second generation” PFAs.

While EPA heralded its Action Plan as “groundbreaking” and “all-encompassing,” it is not yet clear whether the agency will be able to regulate these chemicals more quickly or stringently than recent – and inconsistent – state-led efforts. There are certainly aspects of the Action Plan that would have real and significant effects for industry: for example, listing PFOA and PFOS as “hazardous substances” under CERCLA would expose potentially responsible parties to joint and several liability for PFOA and PFOS contamination. And EPA can turn its non-binding health advisory levels for PFOA and PFOS into binding cleanup standards if it builds them into an enforcement order for removal work – which it has done in the past.

However, the Action Plan’s centerpiece – an enforceable drinking water standard under the SDWA – is a lengthy and involved process. The first step is a regulatory determination – essentially, a judgment by the agency that a contaminant poses a health risk, occurs in drinking water at levels of public concern, and can be addressed through regulatory action. EPA says it will make a regulatory determination for PFOA and PFOS by the end of 2019. The determination merely sets up step two of the process, which is proposing a binding Maximum Contaminant Level (MCL) for drinking water systems. Once an MCL is established, every public water provider in the United States would be required to test regularly for PFOA and PFOS, treat any water that doesn’t meet the standards, and inform the public about PFOA and PFOS levels in community drinking water sources. But factoring in a public comment process, likely legal challenges, and grace periods for compliance, EPA drinking water MCLs for PFOA and PFOS are likely years away.

In the meantime, states like MichiganNew Jersey and New Hampshire have taken steps to establish drinking water and cleanup standards for PFAs, some at levels much lower levels than EPA’s current health advisory levels. These patchwork state-led efforts are only expected to continue.

Receiving less press, but of potentially greater import, are EPA’s efforts to finalize toxicity assessments for so-called “second generation” PFAs, including GenX, PFBS, PFBA, PFHxA, PFHxS, PFNA, and PFDA, and related state efforts to regulate these chemicals in wastewater and drinking water. These second-generation chemicals have been less thoroughly studied than their precursors (including PFOA and PFOS), but are the subject of the ongoing Fourth Unregulated Chemical Monitoring Rule (UCMR4). The information that EPA has pledged to gather (and release to the public) about this new class of chemicals will likely guide states as they determine regulatory and litigation priorities.

© 2019 Foley & Lardner LLP

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About this Author

Linda E. Benfield, Foley Lardner, toxic tort litigation attorney, groundwater contamination lawyer
Partner

Linda E. Benfield is the managing partner of the Milwaukee office of Foley & Lardner LLP, and is an environmental lawyer with the firm. Ms. Benfield has 28 years of experience in litigation and counseling in all aspects of environmental law, including air and water permitting and compliance issues, and solid and hazardous waste handling and disposal. She has extensive experience on the cutting edge of Clean Air Act, Clean Water Act, Superfund, and RCRA enforcement, as well as citizen suit litigation, settlement strategies, and related cost recovery, insurance...

414.297.5825
Nicholas R. Johnson Foley Lardner Law Firm state voluntary cleanup programs lawyer
Associate

Nicholas (Nick) Johnson is an associate with Foley & Lardner LLP and a member of the firm’s Environmental Regulation Practice.

Mr. Johnson has substantial experience in all facets of environmental law and corporate environmental risk management, including both contested proceedings and general regulatory guidance and advice with respect to CERCLA, RCRA, TSCA, the Clean Water Act, the Clean Air Act, state voluntary cleanup programs, and other state and federal environmental laws. Mr. Johnson routinely works with buyers, sellers, investment funds, and lenders to highlight and mitigate environmental risk in the context of corporate and real property transactions, including asset and stock transactions, acquisition financing, redevelopment of brownfields properties, and the purchase and sale of alternative energy facilities. He has helped clients navigate through the complexities of the CERCLA cleanup and cost recovery process, including the preparation and review of remedial investigations, risk assessments, and feasibility studies.

In addition to his corporate counseling practice, Mr. Johnson has litigated products liability and toxic tort claims due to alleged exposure to manufactured substances. Throughout the course of his litigation practice, he has managed all aspects of the discovery process, worked closely with retained experts, and engaged in significant motion practice, including dispositive motions.

Prior to joining Foley, Mr. Johnson held a research fellowship at the University of Illinois at Urbana-Champaign, where he published and spoke extensively on issues related to food safety and food products liability. At Foley, he advises food and beverage companies on food-related regulatory matters, including products liability, permitting matters, product recalls, and manufacturing best practices.

414-297-5340
Peter Tomasi, Foley Lardner, Environmental lawyer, regulations, environmental issues,
Of Counsel

Peter A. Tomasi is of counsel and a business lawyer with Foley & Lardner LLP, where he is a member of the firm’s Environmental Regulation Practice. His practice focuses on regulatory compliance and renewable energy. Mr. Tomasi has further experience with general civil, commercial, and intellectual property litigation.

Representative Experience

  • Representation of logistics providers and reverse distributors in rulemaking and enforcement matters involving hazardous waste pharmaceuticals
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414-297-5621
Laura Whiting Attorney Foley Lardner Dallas
Partner

Environmental lawyer Laura Whiting, a partner in Foley Gardere’s environmental practice group, brings to the table over 27 years of experience assisting clients with all aspects of environmental regulatory compliance and permitting for heavily regulated industries and real estate developments. She focuses her practice on state and federal enforcement and compliance counseling under the Clean Air Act, RCRA, CERCLA, Clean Water Act, incident investigations, regulatory advocacy, and product stewardship requirements, as well as the ongoing need to conduct thorough due...

214-999-4607