PFAS regulation is one of the hot environmental topics and a key issue to watch during this next year. In this series of posts, V&E will address the increasing regulatory attention concerning a group of chemicals known as PFAS and the potential impacts this may have on affected industries.
Often referred to as “forever chemicals,” per- and polyfluoroalkyl substances (“PFAS”) are synthetic chemicals that have been widely used across the United States for several decades. Major environmental regulations and guidance aimed at addressing the potential adverse health effects of PFAS have been on the proverbial “horizon” for years and, in 2019 and 2020, the EPA ramped up regulatory activity. Although much of this activity is significant, the EPA has thus far avoided the action that would have the most wide-spread implications; namely, actually including some PFAS chemicals on the list of “hazardous substances” regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Resource Conversation and Recovery Act (“RCRA”). EPA has, however, taken initial steps that could result in such regulation.
In this post, we’ll address the recent PFAS regulations and guidance and look ahead to what may change in 2021. Given the numerous industries that the EPA has indicated could be impacted by its actions last year — petroleum refineries and terminals, paper and textile mills, a number of industrial manufacturers (including for polymers, cleaning products, and paints), aviation operations, wastewater treatment plants, and landfills — it is important to understand what the EPA has already done, while also looking ahead to potential changes.
Regulations focused on PFAS have been added relatively steadily over the past twenty years or so with Significant New Use Rules published in March 2002, December 2002, October 2007, and October 2013.1 Additionally, in 2006 the EPA introduced the PFOA Stewardship Program with aims for participating companies “to commit to reducing PFOA from facility emissions and product content by 95% no later than 2010, [from a year 2000 baseline] and to work toward eliminating PFOA from emissions and product content no later than 2015.” However, 2019-2020 proved far busier still for PFAS regulations and guidance:
- In February 2019, the EPA released its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan describing its comprehensive approach to “identifying and understanding PFAS, . . . addressing current PFAS contamination, preventing future contamination, and effectively communicating with the public about PFAS.” The following year, on February 26, 2020, the EPA issued its first update to the Action Plan and identified PFAS in drinking water as a top concern. Alongside federal, state, local, and tribal partners, the agency worked to develop a new validated method for testing additional PFAS compounds in drinking water. In addition, the EPA…