On February 14, 2019, EPA announced the release of its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Action Plan) in an unprecedented series of simultaneous press conferences across all 10 of its Regions. The Action Plan brings together and organizes regulatory, enforcement, and scientific efforts across nearly all of the Agency’s statutory programs, including the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Resource Conservation & Recovery Act (RCRA). Some of the components of the Action Plan are entirely new, while others represent the continuation or revival of prior initiatives. Below we summarize the highlights of the 60+ page Plan.
The headline initiative is a commitment to determine whether EPA should establish Maximum Contaminant Levels (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) in drinking water. (EPA previously set non-binding health advisory levels for these compounds.) As a “Priority Action” in the Plan, EPA intends to publish its determination for public comment by the end of the year. And over the next two years, EPA intends to propose nationwide monitoring for other PFAS compounds in drinking water under its Unregulated Contaminants Monitoring Rule.
EPA will consider development of water quality criteria for PFAS, with a decision expected in 2022. This decision may have important implications for whether and how States and Tribes set their own water quality standards, and ultimately Clean Water Act permit limits, for PFAS compounds. In 2016, EPA began studying whether it might set guidelines for limiting surface water discharges containing PFAS, and the Action Plan notes that EPA may include these compounds in its next preliminary plan for Effluent Limitations Guidelines, which we might see this year.
Clean-Up & Ground-Water
In last year’s PFAS National Leadership Summit, EPA acknowledged its intent to list PFOA and PFOS as hazardous substances (an action that may occur under several statutes); the Action Plan makes this listing a priority for the Agency and clarifies that the compounds will be listed under CERCLA. Once listed, EPA will have significantly enhanced clean-up and enforcement authority for sites containing these compounds. EPA also expects to issue interim guidance for remediating PFOA and PFOS in groundwater by the end of the year; this interim guidance may play an important role in clean-up actions under CERCLA, RCRA, and comparable state laws.
The Action Plan also prioritizes additional pre-commercialization review of PFAS under TSCA. This effort will include further progress on the Significant New Use Rule for certain long-chain PFAS proposed in 2015. EPA also intends this year to begin study of whether it should amend the Toxics Release Inventory to require public reporting of PFAS releases, as well as finalize its draft toxicity assessment for perfluorobutane sulfonic acid (PFBS) and GenX compounds, which include shorter-chain PFAS. The Action Plan indicates that EPA also will publish draft toxicity assessments for five other compounds (perfluorobutanoic acid (PFBA), perfluorohexanoic acid (PFHxA), perfluorodecanoic acid (PFDA), perfluorohexane sulfonic acid (PFHxS), and perfluorononanoic acid (PFNA)). EPA expects to publish these drafts in 2020.
Scientific Research & Analytical Methods
The Action Plan also commits to develop a suite of new PFAS detection and analytical methods across multiple environmental media. These efforts are expected to produce, by the end of this year, proposals for public comment on at least three new analytical methods, including one to detect short-chain PFAS in drinking water.
2019 promises to be a busy year for the Agency as it begins to implement the many activities identified in the Action Plan. We will continue to update the regulated community as these various prongs are implemented throughout the year and beyond.