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EPA’s New Action Plan: Urgent Next Steps for the Regulated Community

In response to increasing concerns regarding contamination from potential exposure to per- and polyfluroalkyl substances (PFAS), the U.S. Environmental Protection Agency has now released its PFAS Action Plan. The Plan affects thousands of PFAS substances that have been manufactured since the 1940s, used most prominently in products such as fire-fighting foams, non-stick cookware, food packaging, water-resistant coatings, and in the aerospace, electronics, semi-conductor and automotive industries, among many others. The impacts to the regulated community of this increased attention on PFAS are considerable. Whether it be airports, railroads, developers, manufacturers, or retailers, the prospect of state and federal enforcement of environmental, health and safety laws, of citizen actions under those laws, of toxic tort or product liability actions, and of project delays, are significant.

Recent studies have suggested potential toxicological effects from PFASs on human health, including carcinogenic, developmental and immunological effects. Exposures can occur through drinking water, groundwater, cooking, clothing, air, and other occupational exposures. Two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), have been added to the California Proposition 65 list of chemicals that have evidence of reproductive toxicity, and a number of states have developed drinking water standards for those substances.

EPA’s Immediate and Long-Term Actions

Now, with its PFAS Action Plan, and although some have contended that it has not acted fast enough, EPA is entering the arena in a significant way, and is planning to initiate a number of steps on a national level that will address PFAS. Among other measures, under its Action Plan, EPA will:

  • Institute a regulatory process under the Safe Drinking Water Act to develop maximum contaminant levels (MCLs) for PFOA and PFOS, as well as assess whether MCLs for a broader class of PFAS is appropriate.
  • Initiate a process to list PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which will expand the range of potentially responsible parties with CERLA lability and increase cleanup costs at CERCLA sites.
  • Expand and strengthen enforcement with regard to PFAS.
  • Require reporting of PFAS releases under the Toxics Release Inventory.
  • Propose nationwide drinking water monitoring for PFAS.
  • Develop guidance to facilitate cleanup of contaminated groundwater.
  • Institute new chemical reviews under the Toxic Substances Control Act.
  • Expand testing and analytical methods, treatment and remediation technologies, and research, and develop broader data sets, with regard to PFAS.
  • Assess ecological risks presented by PFAS.

The PFAS Action Plan greatly impacts compliance costs, requirements, enforcement actions, and litigation for manufacturers – past and current – and users of PFAS. It is critical to address these potential risks now, and be aware of and get involved in regulatory efforts before the onset of enforcement actions or lawsuits occur. Please click here to view the Action Plan.