Adam Baas, George Gigounas and John E. Griffith, Jr.
May 23, 2018
The US Environmental Protection Agency (EPA) has begun its two-day National Leadership Summit in Washington, DC to address Per- and Polyfluoroalkyl Substances (PFAS) – a class of man-made chemicals that have been used since the 1950s in the production of a wide range of products that resist heat, stains, grease and water, including furniture protectants, floor wax, food packaging and firefighting foam.
The intent of the Summit, according to EPA Director Scott Pruitt, is to “bring together stakeholders from across the country to build on the steps we are already taking and to identify immediate actions to protect public health.”
The Summit attendees include representatives of 30+ states, 20+ agencies, 3 tribes, and dozens of industry and NGO entities.
Kicking it off on May 22, Pruitt wasted no time focusing the Summit with a clear message – the EPA intends to “take action” on what he calls four “critical steps” to address the growing concern over PFAS’s “persistence, their durability, [sic] getting into the environment and impacting communities in an adverse way.”
Pruitt then announced the following Four-Step Action Plan:
- EPA will initiate steps to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS. We will convene our federal partners and examine everything we know about PFOA and PFOS in drinking water.
- EPA is beginning the necessary steps to propose designating PFOA and PFOS as “hazardous substances” through one of the available statutory mechanisms, including potentially CERCLA Section 102.
- EPA is currently developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites and will complete this task by fall of this year.
- EPA is taking action in close collaboration with federal and state partners to develop toxicity values for GenX and PFBS.
The significance of this Action Plan cannot be overstated. Setting MCLs for PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid) – two of the most widely known and historically used compounds in the PFAS family – will provide legal threshold limits on the amount of these compounds allowed in drinking water under the SDWA, which will apply to every public water system in the US. Likewise, designating PFOA and PFOS as “hazardous substances” under CERCLA will establish a federal cause of action to hold responsible parties liable for clean-up costs associated with PFAS releases.
Less obvious, but equally significant and notable to all stakeholders currently utilizing or producing products containing PFAS other than PFOA and PFOS, is the EPA’s focus on GenX and PFBS. GenX and PFBS are commonly considered replacement compounds for PFOA and PFOS, which were phased out in the early 2000s.
As it stands, the EPA’s 2016 health advisory levels (HALs) for drinking water affect only PFOA and PFOS and do not apply to these replacement compounds – or arguably any other of approximately 3,000 PFAS in production today. By calling out GenX and PFBS in the Action Plan, the EPA has shown its willingness to step outside the PFOA and PFOS box, which it has been in for coming on two decades, to potentially regulate other PFAS compounds. How far the EPA is willing to go once out of the box, including whether it will ever formally regulate GenX and PFBS, has yet to be seen.
In the weeks to come, the EPA will tour the states to meet and discuss the Action Plan with various stakeholders and will subsequently publish a “National PFAS Management Plan” (expected in the fall). DLA Piper will continue to track the state of the law and science around PFAS, including the EPA’s progress on its Action Plan, and will report relevant events as they unfold.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Baas, Mr. Gigounas & Mr. Griffith, Jr. and may not reflect the opinions of Synergy Environmental, Inc., DLA Piper or either of those firms’ clients.