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Additional Regulation of PFAS Is on the Horizon Following EPA's PFAS Summit

Client Alert

Authors: AnnMarie Sanford and Todd C. Fracassi

5/24/2018
Additional Regulation of PFAS Is on the Horizon Following EPA's PFAS Summit

As we have been advising, attention to per- and polyfluoroalkyl substances (PFAS) continues to take center stage with regulators on both the state and federal levels. On May 22-23, the U.S. Environmental Protection Agency (EPA) held a National Leadership Summit to share information and best practices regarding PFAS challenges faced by communities across the country. Representatives from more than 40 states, tribes and territories; 20 federal agencies; congressional staff; associations; industry groups; and nongovernmental organizations participated in the summit.

As a result of the meeting, EPA announced it will visit several communities impacted by PFAS to understand and support work being done at the state, local and tribal levels. Initially, EPA plans to visit New Hampshire and Michigan, where PFAS-impacted groundwater plumes have been identified and where the states have been active in regulating PFAS. EPA also announced that it plans to develop a PFAS management plan that is to be released later this year.

Following the summit, EPA Administrator Scott Pruitt announced that EPA also will take the following actions:

  • EPA will initiate steps to evaluate the need for a maximum contaminant level (MCL) for two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).

  • EPA has started the process of designating PFOA and PFOS as “hazardous substances” through available statutory mechanisms, including potentially CERCLA section 102.

  • EPA is developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites and will complete this task by fall of this year.

  • EPA is collaborating with federal and state partners to develop toxicity values for GenX and perfluorobutane sulfonate PFBS by this summer.

As a result of these and other actions by states, we expect enforcement regarding PFAS to increase on both the state and federal levels. Designating PFOA and PFOS as “hazardous substances” will pave the way for additional sites being added to the Superfund list, the reopening of previously closed sites, and the identification of PFOA and PFOS as contaminants of concern at existing Superfund sites, therefore requiring sampling. State regulators likely will follow suit or, in some cases where a state is already regulating PFAS, drive the need to sample at federal-led sites. We also expect discharge limits for certain PFAS to be added to wastewater discharge permits, where applicable. While much of the attention has focused on PFOA and PFOS, EPA’s evaluation and regulation of the use and disposal of other PFAS is certain to follow as well.

If you would like more information about how EPA’s actions might impact your business, please contact the authors.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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