Chemicals, Regulatory Developments

‘Groundbreaking’ PFAS Plan Floated by EPA

With considerable fanfare, including news conferences in every EPA region, the Agency unveiled its Action Plan for per- and polyfluoroalkyl substances (PFAS), a large class of manufactured chemicals that have proven to be highly effective in many industrial applications and have also spread risks to human health through sources of drinking water across the nation. The Action Plan relies primarily on the Safe Drinking Water Act (SDWA) to address the dangers of PFAS. The EPA also announced that it will begin researching whether at least some of these chemicals should be regulated under other statutory authorities, including the Toxic Substances Control Act (TSCA), Superfund, and the Emergency Planning and Community Right-to-Know Act (EPCRA).

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In the keynote press conference, EPA Acting Administrator Andrew Wheeler called release of the Action Plan “an historic moment for the Agency and the American public.”

“It took groundbreaking efforts to develop this plan,” Wheeler continued. “This is the first time we have utilized all of our program offices to deal with an emerging chemical of concern. It is the first time we have put together a multi-media, multi-program national research and risk communication plan to address a challenge like PFAS.”

The Action Plan was prompted at least in part by a National Leadership Summit the Agency convened in May 2018 on the challenges of addressing PFAS contaminants and what has been and can be done. At the Summit, community leaders expressed their belief that the Agency needs to use its legal powers to accelerate solutions to PFAS contamination. The EPA says that it considered 120,000 public comments on what the Action Plan should encompass and how it should be implemented.

Persistent in Products and in People

Introduced in the 1940s, PFAS have multiple applications. The best-known uses include providing fabrics with stain and water resistance and nonstick properties to cookware. PFAS are also used in firefighting foams and the manufacture of electronic products. Qualities such as durability that have made PFAS a desirable chemical also contribute to its persistence in the environment and in the human body. Studies indicate that two PFAS— perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—can cause cancer and reproductive, developmental, liver, kidney, and immunological effects (PFOA) and thyroid hormone disruption (PFOS) in laboratory animals.

Maximum Contaminant Level

While PFAS exposure can occur in multiple ways (e.g., via soil and food consumption), the major current concern appears to be its presence in drinking water. Accordingly, the major “long-term” action in the plan is to “initiate steps to evaluate the need for maximum contaminant levels (MCLs) for PFOA and PFOS. An MCL is the legal threshold limit on the amount of a substance that is allowed in public water systems and is the primary enforceable provision under the SDWA. The actual finalization of MCLs for PFOA or PFOS can take between 5 and 10 years, and it may be years after that before drinking water systems would be required to meet the MCL.

Beginning in 2000, some U.S. manufacturers voluntarily phased out production of PFOA and PFOS.

Applying Hazardous-Substance Tag

Other long-term actions—those that will take more than 2 years to implement—include beginning the necessary steps to propose designating PFOA and PFOS as hazardous substances through one or more of the available federal statutory mechanisms (e.g., Superfund, Resource Conservation and Recovery Act (RCRA), TSCA, Clean Water Act, Clean Air Act; and EPCRA); developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites; and developing toxicity values or oral reference doses (RfDs) for GenX chemicals (hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt) and perfluorobutane sulfonic acid (PFBS).

Short-term actions contemplated in the plan include developing new analytical methods and tools for understanding and managing PFAS risk; promulgating Significant New Use Rules (SNURs) under TSCA, which require EPA notification before chemicals are used in new ways that may create human health and ecological concerns; and using enforcement actions to help manage PFAS risk.

A Prudent Plan or More Delay?    

Release of the plan was generally welcomed by industry. 3M, which introduced PFOS chemicals in the 1940s and participated in the 2000 phaseout, said it agreed with the EPA moving forward with an MCL determination.

“We support regulation rooted in the best-available science and believe that this plan may help prevent a patchwork of state standards that could increase confusion,” said 3M in a statement.

The American Chemistry Council (ACC) also voiced support, provided the Action Plan can be implemented quickly and that it is based on the best-available science. “It is also essential that EPA communicate effectively to the public to build confidence, transparency, and credibility in the actions it is taking,” said the ACC.

But environmental groups saw the Action Plan as all show and little action.

“EPA has been promising to address the serious public health threat posed by PFAS chemical exposures for almost twenty years,” Rob Bilott, an attorney who has represented clients with PFAS claims, said in a statement released by the Environmental Working Group. “The last ‘action plan’ was released a decade ago—in 2009. Unfortunately, despite the promising public relations messaging released in connection with EPA’s latest PFAS ‘Action Plan,’ EPA is still not actually taking any concrete action on PFAS. Promising to conduct more studies, investigations and further work toward formal regulatory action at some point in the future is not the same as actually taking formal regulatory action now. It is well past the time for promises and future action plans—it is time for actual action by EPA.”