United States: EPA's PFAS Action Plan Highlights Risks And Uncertainties Of Further PFAS Regulation

On February 14, the U.S. Environmental Protection Agency (EPA) announced a comprehensive proposal for further study and regulation of per- and polyfluoroalkyl substances (PFAS) in a PFAS Action Plan.1 The EPA’s PFAS Action Plan follows closely on the heels of a May 2018 National PFAS Summit2 at which EPA agreed to consider further regulation of PFAS, a large class of chemicals with stain-, grease-, and water-resistant properties used in a wide variety of consumer, commercial, and industrial products.

EPA’s commitments in the new Action Plan include short-term and long-term study of PFAS and possible regulation under a host of federal laws including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Toxic Substances Control Act (TSCA), and Safe Drinking Water Act (SDWA).3 Several of EPA’s proposed actions target the legacy chemicals perfluorooctanesulfonate (PFOS) and perfluorooctanoic acid (PFOA), which, with few exceptions, have not been manufactured or used in the United States since 2002 and 2015, respectively.4 But EPA also plans further study and regulation of PFAS that are currently unregulated. EPA’s proposed actions include short-term measures already underway or to be completed within the next two years, and long-term studies and regulation of PFAS that are expected to take more than two years.5

Examples of EPA’s Planned and Ongoing PFAS-Related Actions

Action Statute Type of Action Anticipated Timing
Propose drinking water standards (MCLs) for PFOA and PFOS SDWA Priority 2019
List PFOA and PFOS as “hazardous substances” CERCLA Priority

Ongoing; started 2018

Develop interim cleanup recommendations to address PFOS and PFOA in groundwater CERCLA/RCRA Priority 2019
Finalize draft toxicity assessments for GenX, PFBS, and five other PFAS chemicals


Priority 2019; 2020
Review new PFAS and issue supplemental proposed significant new use rules (SNURs) under TSCA amendments TSCA Priority Ongoing; started 2016
Expand current drinking water Method 537 to include GenX and other PFAS; develop new methods for detecting short-chain PFAS Various Short-term Nov. 2018; 2019
Develop methods for sampling other water matrices (ex. wastewater), solids (ex. soil), and air Various Short-term 2019-2021
Explore data availability for listing PFAS on the Toxics Release Inventory Section 313, Emergency Planning and Community Right to Know Act Long-term Start 2019
Research development of ambient water quality criteria for PFAS Section 304, Clean Water Act Long-term 2021
Monitor PFAS through the next unregulated contaminant monitoring rule (UCMR) SDWA Long-term 2020

Among the most consequential, and surprising, of EPA’s decisions, is EPA’s plan to move forward with evaluating potential regulation of PFOA and PFOS under the SDWA. EPA has committed to evaluating the need for maximum contaminant limits (MCLs) for PFOS and PFOA.6 The decision is significant because EPA only regulates approximately 90 contaminants under the SDWA, and EPA has not regulated any new drinking water contaminants in more than a decade.7 The process for setting drinking water limits under the SDWA is rigorous, and will require further analysis of the contaminants, their potential impacts to municipal water supplies, and a cost-benefit analysis of federal regulation.8 In the Action Plan, EPA indicates it may propose draft MCLs as early as later this year.9 But before EPA can issue final MCLs, EPA will have to issue draft and final rules, which will be subject to public review as well as potential court challenges from industry, states, and municipalities.

EPA’s decision to move forward with regulation of PFOS and PFOA under the SDWA is surprising because states have taken the lead in drinking water regulation in recent decades.10 Only a few weeks ago, sources at EPA indicated that the agency was unlikely to move forward with regulation of PFAS under the SDWA.11 Regardless of EPA’s decision, states are likely to continue to move forward with their own drinking water regulations for PFAS. Several states, including New Jersey, Vermont, and New Hampshire, have already adopted or proposed PFOS and PFOA drinking water regulations as aggressive as or more aggressive than the 70 parts per trillion drinking water health advisory levels recommended by EPA in April 2016.12

Less unexpected, EPA also has decided to move forward with possible regulation of PFAS under CERCLA. EPA has agreed to evaluate potential regulation of PFOA and PFOS as “hazardous substances” under CERCLA, and EPA has tentatively agreed to develop groundwater cleanup standards for PFOA and PFOS at contaminated sites.13 While regulation of the chemicals under CERCLA will provide EPA authority to order CERCLA cleanups or recover costs for agency-led cleanups at sites contaminated with PFOA and PFOS, EPA has already used its Superfund authority to require parties to address PFAS as a secondary contaminant at numerous sites.14 In July 2017, EPA even added the Saint-Gobain Performance Plastics Site in Hoosick Falls, New York, to the National Priorities List (NPL) as the result of historic PFOA contamination.15

A final decision to list PFOA and PFOS as “hazardous substances” under CERCLA or other federal environmental statutes, while still far from certain, could result in the addition of more sites with historic PFAS contamination to the NPL. Such listings could impose significant burdens on the parties held responsible for these cleanups, including retroactive and joint and several liability under CERCLA. Following designation of PFOS and PFOA as “hazardous substances,” parties also may face new liabilities under other federal statutes, including the Clean Water Act, the Resource Conservation and Recovery Act, the Clean Air Act, and TSCA.16

In the Action Plan, EPA also agreed to finalize its evaluation of the toxicity of PFAS including the short-chain PFAS GenX and PFBS.17 EPA released draft findings last summer indicating that these more recently developed PFAS alternatives pose less of a risk of toxicity than PFOA and PFOS.18 Under the Action Plan, EPA plans to develop toxicity assessments for five additional PFAS within the next two years.19

EPA also committed to further evaluation of PFAS under TSCA to address potential regulatory gaps.20 Only several hundred of the estimated thousands of PFAS approved for use in the United States are currently regulated under TSCA.21 Finally, EPA agreed to additional long-term PFAS regulatory measures, including new sampling techniques to detect PFAS, study of PFAS transport mechanisms and treatment options, and the potential for increased enforcement actions.22

As discussed throughout the Action Plan, EPA faces the continuing challenge of coordinating its efforts with a large group of federal, state, and local stakeholders with strong interests in any regulatory outcome involving PFAS.23 As only one example, the United States faces significant potential liability stemming from the release of PFAS-containing foam at its military installations.24 Many states also appear eager to finalize their own regulations for PFAS, and several– including Ohio, Minnesota, and New York– have already been involved in high-profile litigation against PFAS manufacturers. Municipalities are responsible for complying with federal and state drinking water limits and cleanup standards, and they may find themselves on both sides of litigation, as individual plaintiffs pursue lawsuits against them to enforce cleanup standards, and municipalities pursue product liability and indemnification claims against landowners, PFAS manufacturers and secondary users of PFAS.

While EPA’s PFAS Action Plan may increase the likelihood of broad-based federal regulation of PFAS in the future, much remains uncertain because many of EPA’s planned actions require long-term scientific study, public input, and final agency decisions. EPA indicates that it will take a cautious approach to risk analysis and risk communication, and EPA will emphasize public transparency during the regulatory process.25 These remain important goals because there is significant disagreement within the scientific and legal communities regarding the alleged toxicity of PFAS, and the potential benefits of additional regulation.


1 U.S. Environmental Protection Agency, “EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan,” February 2019 (hereinafter “Action Plan”).

2 U.S. Environmental Protection Agency, “PFAS National Leadership Summit and Engagement,” May 22-23, 2018, available at https://www.epa.gov/sites/production/files/2018-08/documents/pfas-meeting-summary_final_508.pdf.

3 Action Plan, p. 2.

4 U.S. Environmental Protection Agency, “Risk Management for Per- and Polyfluoroalkyl Substances (PFASs) under TSCA,” available at https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-and-polyfluoroalkyl-substances-pfass.

5 Action Plan, p. 2-7.

6 Id. at 21.

7 U.S. Environmental Protection Agency, “Regulation Timeline: Contaminants Regulated Under the Safe Drinking Water Act,” September 2015, available at https://www.epa.gov/sites/production/files/2015-10/documents/dw_regulation_timeline.pdf.

8 Action Plan at 21; PFOA and PFOS Drinking Water Health Advisories, Factsheet, p. 4, November 2016, available at https://www.epa.gov/sites/production/files/2016-06/documents/drinkingwaterhealthadvisories_pfoa_pfos_updated_5.31.16.pdf (“To regulate a contaminant under the SDWA, EPA must find that it: (1) may have adverse health effects; (2) occurs frequently (or there is a substantial likelihood that it occurs frequently) at levels of public health concern; and (3) there is a meaningful opportunity for health risk reduction for people served by public water systems.”).

9 Action Plan, p. 3.

10 Mary Tiemann, Congressional Research Service, “Safe Drinking Water Act (SDWA): A Summary of the Act and Its Major Requirements,” p. 7, March 1, 2017 (noting that 55 of 57 states and territories in the U.S. have primacy in regulating and enforcing drinking water standards).

11 Annie Snider, “Trump EPA Won’t Limit 2 Toxic Chemicals in Drinking Water,” Jan. 28, 2019, available at https://www.politico.com/story/2019/01/28/epa-toxic-chemicals-drinking-water-1124797.

12 Interstate Technology Regulatory Council, “PFOA and PFOS Values for Drinking Water,” Tables 5-1; 5-2 (last updated July 2018), available at https://pfas-1.itrcweb.org/fact-sheets/.

13 Action Plan, p. 28.

14 U.S. Environmental Protection Agency, “PFAS Laws and Regulations,” available at https://www.epa.gov/pfas/pfas-laws-and-regulations (noting potential authority under Superfund to regulate PFAS under “applicable or relevant and appropriate requirements” (ARARs)).

15 U.S. Environmental Protection Agency, “Saint-Gobain Performance Plastics Site,” available at https://www.epa.gov/newsreleases/epa-adds-saint-gobain-performance-plastics-site-hoosick-falls-ny-federal-superfund-list.

16 Action Plan, p. 28

17 Action Plan, p. 33.

18 U.S. Environmental Protection Agency, “Fact Sheet: Draft Toxicity Assessments for GenX Chemicals and PFBS,” November 2018, available at https://www.epa.gov/sites/production/files/2018-11/documents/factsheet_pfbs-genx-toxicity_values_11.14.2018.pdf.

19 Action Plan, p. 33.

20 Action Plan, p. 16-18.

21 See supra note 4.

22 Action Plan, p. 24-27.

23 Action Plan, p. 24, 30, 39.

24 Tara Copp, Military Times, “DoD: At least 126 bases report water contaminants linked to cancer, birth defects,” April 26, 2018, available at https://www.militarytimes.com/news/your-military/2018/04/26/dod-126-bases-report-water-contaminants-harmful-to-infant-development-tied-to-cancers/.

25 Action Plan, p. 37-38.

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