In February 2019, U.S. EPA released its action plan to regulate Per- and Polyfluoroalkyl Substances (PFASs). The two most well-known PFAS chemicals are perfluorooctane sulfonate (PFOS) and perfluorooctonoic acid (PFOA).
Consumer products have long used PFASs for things such as non-stick cookware, waterproof carpeting, clothing, and some firefighting foams. While PFASs made great consumer products, it was later discovered that the chemicals don’t break down in the environment and they have been linked to possible health impacts. Humans are exposed to PFASs in drinking water, fish consumption and inhalation of dust.
Back in 2016, EPA issued an advisory under the Safe Drinking Water Act (“SDWA”) that recommended levels of 70 parts per trillion in the bloodstream. An “advisory” is non-regulatory and unenforceable. While EPA adopted this recommendation, some states did adopt drinking water standards. In the last few years it appeared EPA would defer to the states in regards to establishing standards for PFASs.
On February 14, 2019, after mounting calls for regulatory action on PFAS, EPA releases its PFAS Management Plan. The plan calls for a number of regulatory actions, but most notably:
- EPA will adopt a national drinking water standards for PFOAs and PFOS under the Safe Drinking Water Act sometime in 2019. EPA only regulates approximately 90 chemicals under the SDWA, therefore, this is the most significant aspect of EPA’s announced management plan.
- EPA will being to take the steps necessary to list PFOA and PFOS as hazardous substances under CERCLA (also known as “Superfund”). Listing PFOA and PFOS as hazardous substances will leverage CERCLA’s broad joint and several liability scheme for sites across the U.S. with significant groundwater contamination; and
- EPA is considering including PFASs on the Toxic Release Inventory (TRI) and rules to prohibit the use of certain chemicals.
While adopting an MCL for PFOA and PFOS under the SWDA would be very significant, EPA must go through rulemaking, including a notice and comment period, to put a standard in place. Any such standard will be controversial because EPA must consider the cost of treatment compared with public health benefits. Also, any established standard will almost certainly be challenged in the courts.
While EPA is moving forward to adopt regulations pertaining to PFASs, lawsuits have already been filed across the United States against manufacturers of PFASs. In Ohio, a large private party class action suit against DuPont, a PFAS manufacturer, was settled for $670 million resolving 3,550 personal injury lawsuits related to exposure to PFASs into the environment. In 2018, now Governor Mike DeWine, when he was Attorney General, filed a suit against DuPont for releases of PFASs into the Ohio River.
From the newly announced EPA Management Plan, state regulatory actions and litigation, PFAS issues will be unfolding over the next few decades.