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EPA Releases PFAS Action Plan for Emerging Contaminants

Energy, Environment & Natural Resources Client Alert George J. Marek, Lauren R. Harpke, Rikaela R. J. Greane

The Environmental Protection Agency (EPA) released its highly anticipated action plan to address per- and polyfluoroalkyl substances (PFAS). EPA Acting Administrator Andrew Wheeler described the plan as "the most comprehensive cross-agency plan to address a chemical of emerging concern ever undertaken by the EPA." The action plan includes:

  • Drinking Water Levels - The EPA has begun the process of developing a Maximum Contaminant Level (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), two of the most prevalent PFAS compounds, with the goal of establishing these levels by the end of 2019. The public will be provided an opportunity to comment, thereby contributing to the information the EPA will consider as it develops PFAS drinking water regulations.
  • Health Advisory Level - The EPA will continue relying on the existing Health Advisory Level for PFAS of 70 ppt or 70 nanograms per liter.
  • Toxics Inventory - The EPA is considering adding PFAS to the Toxics Release Inventory and promulgating rules to prohibit the use of certain PFAS chemicals. The Toxics Release Inventory would help gather information about reported PFAS releases by certain industrial sectors and federal facilities.
  • Monitoring - The EPA will propose nationwide drinking water monitoring for PFAS as part of the Unregulated Contaminant Monitoring Rule (UCMR) program.
  • Research - The EPA is expanding its research to further understand and manage the risks from PFAS, including improved detection and measurement methods and effective treatment and remediation.
  • Risk Communication - The EPA will develop a "risk communication toolbox" that will provide guidance and resources to help federal, state, and local entities clearly communicate PFAS risks to the public.

PFAS are a large group of highly fluorinated synthetic chemicals with diverse properties that have been utilized by a wide range of industries since the 1940s. Certain uses of PFAS have been prohibited, but PFAS are or have been present in fire-fighting foams, wire insulation, cleaners, textiles, apparel, carpet, leather, paper, and paints. The chemical bond between the carbon and fluorine atoms in PFAS is extremely strong and stable, making PFAS resistant to typical environmental degradation processes. The wide use and stability of PFAS provides many opportunities for human exposure to, and bioaccumulation of, these chemicals.

Exposure to PFAS may have adverse impacts on human health. PFOA and PFOS are the two most researched PFAS. Classified as “emerging contaminants” or “contaminants of emerging concern” by the EPA, these chemicals are not well researched but have been found to cause cancer or affect the liver, immune system, cholesterol levels, and thyroid. Additional research is necessary to determine the full scope of PFAS impacts.

At the state level, the Wisconsin Department of Natural Resources (WDNR) asserts that its Remediation and Redevelopment Authority Program (RR Program) has authority to regulate emerging contaminants, including PFAS, as a hazardous substance or environmental pollution under applicable statutes. Using the RR Program’s spreadsheet to calculate residual contaminant levels (RCL), the RCL standard for industrial direct contact for both PFOA and PFOS is 16.4 mg/kg and the non-industrial RCL standard is 1.26 mg/kg. A groundwater standard has not yet been developed, but is likely forthcoming as a result of a request from the WDNR to the Wisconsin Division of Public Health to develop groundwater quality standards for a variety of substances, including PFAS and PFOA.

In the meantime, the WDNR has implemented a notable policy change in how it administers the Voluntary Party Liability Exemption (VPLE) under Wis. Stat. § 292.15. In January 2019, the WDNR issued a position statement that due to recent concerns over PFAS chemicals, the Department has evaluated the potential for historical discharges of PFAS and other emerging contaminants at properties enrolled in the VPLE program that are pursuing a “Certificate of Completion” (COC). The WDNR indicated that because: (1) the fate and transport of PFAS and site characterization for PFAS are complicated by the number and diversity of substances involved; (2) PFAS is found in mixtures that can change over time; and (3) there is a large variety of PFAS source materials, the risk of a PFAS release cannot be ruled out at a VPLE property without confirmation testing. Therefore, the WDNR will not issue a COC for PFAS contamination unless sampling has been conducted for PFAS. Instead, for sites that are currently in the VPLE program, the WDNR will offer a COC for the individual hazardous substances that are investigated after all VPLE requirements have been met. Due to the understandable hesitancy of many parties to investigate for PFAS, the result will mean that PFAS will likely not be within the scope of COCs for most sites in the program. The WDNR’s interim decision does not affect properties that have already received a COC.

Michigan has also taken steps toward regulating PFAS. For instance, the Michigan House of Representatives adopted a resolution creating a PFAS Advisory Committee to review Michigan's knowledge of PFAS. Members of the Michigan House of Representatives and the Michigan State Senate have also introduced a concurrent resolution requesting the federal government to release a draft toxicological profile on PFAS, develop a national environmental limit for PFAS, and to increase coordination and funding support.

This January, the Massachusetts Department of Environmental Protection (MassDEP) announced that it will develop an MCL for specific PFAS that are a threat to human health, are detectable, and can be treated with available technology. MassDEP based this narrow approach on the expense of treating drinking water for PFAS contamination, the limited research on all of the PFAS compounds, and the limited treatment technologies available. Several other states including Alaska, California, New Hampshire, New Jersey, and Vermont have lead the way toward PFAS regulation.

For more information, or assistance in understanding the potential for PFAS regulation, please contact your Quarles & Brady attorney or: