yellow blue smoke from two tubes of plantPer- and polyfluoroalkyl substances (“PFAS”) are synthetic chemicals used in a number of industrial processes and in the manufacturing of certain consumer goods because of their fire resistance and because they repel oil, stains, grease, and water. There are approximately 3,500 different compounds under the umbrella of PFAS. Some of these were used in firefighting foam, which in some places, including near airports, were spread over the ground to prevent forest fires. The most well-known versions, and considered to be of greatest concern, are long chain PFAS, perfluoroctanoic acid (“PFOA”) and perfluoroctane sulfonate (“PFOS”).

Background

EPA has taken the position that long term exposure to these chemicals may result in birth defects, cancer, liver effects, immune effects, thyroid effects, and other health issues. Long chain PFAS don’t readily degrade, and thus build up in the environment and persist in the human body itself. Low levels of these chemicals have been found in drinking water and soil and, in one study, in the blood of almost every subject tested.

In 2006, EPA and the leading companies in the PFAS industry agreed to reduce the amount of PFOA and PFOS emissions by 95% by 2010 and completely eliminate them by 2015. Through this program, these chemicals are no longer manufactured in the US and, according to the 2012 Chemical Data Reporting, are no longer imported. In 2009, EPA issued a provisional health advisory specifically for PFOA and PFOS and, in May 19, 2016, EPA established a lifetime health advisory of 70 parts per trillion (“ppt”) for drinking water for PFOA and PFOS. Through a previous rulemaking in 2012, EPA included PFOA and PFOS in the list of contaminants that water systems must monitor for, even though they were unregulated at the time.

Although manufacturers have agreed to stop making PFOA and PFOS, regulators have become increasingly concerned and focused on investigating and potentially addressing areas where they were historically used.  In the current absence of federal regulation, many states have enacted their own rules; however, only eight states have numerical PFAS limits.

Regulation

Although there may not be a comprehensive regulatory structure in place, previous actions by EPA and voluntary actions by PFAS manufacturers have already had a large impact in reducing the amount of PFAS.  According the CDC, from 1999 to 2014, the amount of PFOA and PFOS found in the U.S. population reduced by more than 60% and 80%, respectively. Additional gains are expected as EPA pursues additional regulatory measures.

On February 14, 2019, EPA released its PFAS Action Plan and a summary of the plan, which as a whole only provides a detailed plan for potential, future regulations to be investigated over the next couple of years. The areas of potential regulation include groundwater, drinking water, human health risks, and consumer products, and EPA’s CompTox Chemistry Dashboard lists more than 600 PFAS compounds. According to David Ross, assistant administrator for EPA’s Office of Water, the goal is to propose a regulatory scheme by the end of this year. However, there is no set timeline and the plan has been criticized as falling short on regulating a chemical that’s been of concern for some time.

EPA has also started the process for listing PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). This listing will allow EPA to order clean-ups and recover cleanup costs (and remediating parties to seek contribution) from Potentially Responsible Parties (“PRPs”) for the remediation of soil and groundwater contaminated with PFOA and PFOS.

Furthermore, the recently proposed PFAS Action Plan includes the development of a Maximum Contaminant Level (“MCL”) under the Safe Drinking Water Act (“SDWA”) for both PFOA and PFOS. To regulate a contaminant under the SWDA, EPA must find that it: (1) may have adverse health effects; (2) occurs frequently (or there is a substantial likelihood that it occurs frequently) at levels of public health concern; and (3) there is a meaningful opportunity for health risk reduction for people served by public water systems. Acting Administrator Wheeler emphasized that this determination should be completed by the end of this year as well. This determination is only the first step to setting an MCL. However, because there has not been a new MCL since 1996 when the SDWA passed, it is unclear how long the process will take or the likelihood that a rule promulgating MCLs for PFOA and PFOS will be affected by future litigation.

Conclusion

At the agency’s current pace, it is unlikely that a comprehensive, codified regulatory scheme will be promulgated any time soon; in the meantime, public and private entities will have to contend with a patchwork of state regulations. Further, these debates have spurred a shift toward the use of short-chain PFAS, which are newer and less studied. Given the push by environmental groups to regulate all PFAS, the agency will likely struggle to draft a rule that is satisfactory to all concerned.

In the interim, states are pursuing cleanup actions against various entities: New Jersey issued a directive against five companies for the remediation of PFAS contaminated sites; Minnesota sued and settled with a company for $890 million for PFAS related costs; and California just revealed an investigatory plan for PFAS remediation, targeting landfills and airports in just the first phase.

State regulations continue to come out as well: New York recommended an MCL of 10 ppt; New Jersey is expected to recommend an MCL of 14 ppt for PFOA and 13 ppt for PFOS; Vermont is expected to recommend an MCL of 20 ppt; and Michigan has an MCL of 12 ppt, while others are considering variations of guidelines and advisory levels.

Contact Us

For more information about how EPA’s PFAS Action Plan may affect your organization, please contact Jason A. Flower, Coty Hopinks-Baul, or Daniel A. Fanning of Husch Blackwell’s Environmental team.