The U.S. Environmental Protection Agency’s (“EPA’s”) new PFAS Strategic Roadmap (“Roadmap”) for 2021-2024 outlines a lifecycle approach to reduce per- and poly-fluoroalkyl substances (collectively “PFAS”) in the environment and human exposure to these and related substances. The Roadmap emphasizes EPA’s intent to hold polluters and other responsible parties accountable for PFAS releases through increased enforcement actions. It also catalogs many ongoing regulatory activities, including a long expected proposal to add PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and continued development of maximum contaminant level goals for PFOA and for PFOA and PFAS under the Safe Drinking Water Act (“SDWA”).
Looking ahead, companies can be well-served by evaluating their historic use and management of PFAS. Conducting these activities with counsel under privilege can be an important approach when remediation, enforcement, and litigation may be on the horizon.
Expanding Categories of Targeted PFAS Compounds
The Roadmap indicates that EPA will seek to regulate a broader number of PFAS compounds by grouping categories of PFAS together in ongoing regulatory efforts, enabling faster implementation and greater emphasis on cumulative impacts. According to the Roadmap, approximately 650 PFAS are currently in commerce, but around half of these compounds have never been assessed by EPA. Moving forward, EPA intends to review impacts related to a broader range of PFAS compounds and look back on compounds previously grandfathered in the Toxic Substances Control Act’s regulatory framework. Notably, the Roadmap also emphasizes targeted actions for PFOA and PFOS due to greater prevalence of data related to these compounds, although the Roadmap does not place any special emphasis on firefighting foams – the manufacture and use of which is currently the focus of extensive litigation.
Restrictions for Upstream Sources of PFAS
The Roadmap contemplates upstream PFAS restrictions targeting producers of feedstock and large-scale direct dischargers of PFAS. These restrictions would impact only a small number of PFAS feedstock facilities and key industries with significant documented discharges, including: PFAS production and processing, metal finishing, airports, pulp and paper, landfills, and textile and carpet manufacturing. This approach responds to the innate difficulties associated with restricting PFAS releases downstream due to both the longevity of the compounds and their prominence across a vast number of processes. However, the Roadmap indicates that its upstream restrictions will also be paired with greater remediation efforts downstream, which will likely result in enhanced monitoring, investigation, and enforcement, particularly in environmental justice communities.
Expanded Remediation through Planned Rulemakings
The Roadmap indicates an enforcement focus in remediating PFAS contamination, emphasizing EPA’s intent to hold polluters and other responsible parties accountable for PFAS releases. In particular, EPA will expend significantly greater effort in locating past and ongoing releases and identifying communities with the greatest level of risk and contamination exposure.
In addition, the Roadmap contemplates expanding remediation efforts through two planned rulemakings: (1) moving forward with proposing PFOA and PFOS be considered hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), with an option to expand this proposal to other PFAS on a longer timescale; and (2) developing national primary drinking water regulations for PFOA and PFAS under the Safe Drinking Water Act (“SDWA”), also leaving open the possibility of expanding to other PFAS compounds. Listing PFAS compounds as hazardous substances would allow EPA and private parties to recover cleanup costs from responsible parties as well as impose governmental reporting obligations for PFAS releases.
Capacity-Building in Vulnerable Communities
To facilitate more effective enforcement, the Roadmap emphasizes efforts to identify communities most impacted by PFAS through enhanced monitoring and reporting. The Roadmap charges EPA with increasing collaboration and access to information at a community level, specifically reiterating the importance of these collaborative efforts as a way to incorporate broader environmental justice goals prominent in the Biden Administration’s overall agenda.
Again, given the increased focus on enforcement around the use of PFAS, there are many strategies companies can employ to stay ahead of the curve. Companies can review Baker Botts’ PFAS Top Three Strategies and listen to our podcast on PFAS. Managing a company’s PFAS situation requires intentionality, thoughtfulness, and careful diligence. Once a better understanding is gained, a proactive PFAS compliance, and litigation strategy can be implemented allowing for the best position in this evolving regulatory landscape.
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