Dianne Phillips is a Partner in Holland & Knight's Boston office
On Feb. 14, 2019, U.S. Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler held a live-streamed press conference in Philadelphia, Pennsylvania describing the release of EPA's anticipated PFAS Action Plan. According to the press release:
"The PFAS Action Plan is the most comprehensive cross-agency plan to address an emerging chemical of concern ever undertaken by EPA. For the first time in Agency history, we utilized all of our program offices to construct an all-encompassing plan to help states and local communities address FAS and protect our nation's drinking water. We are moving forward with several important actions, including the maximum contaminant level process, that will help affected communities better monitor, detect, and address PFAS."
Acting Administrator Wheeler began by disabusing the recent press reports stating that EPA is moving forward with the maximum contaminant level (MCL) process outlined in the Safe Drinking Water Act for PFOA and PFOS—two of the most well-known and prevalent PFAS chemicals. By the end of this year, EPA will propose a "regulatory determination," which is reportedly the next step in the Safe Drinking Water Act process for establishing an MCL. Acting Administrator Wheeler admitted they were charting new ground because EPA has not set a new MCL since 1996 when the Act was passed.
In addition, EPA has been working on the process to list PFOA and PFOS as hazardous substances under federal law and will be issuing interim cleanup standards "soon" while the regulatory process plays out. In the meantime, EPA has been enforcing its previous health advisory limit of 70 parts per trillion (ppt) for the two chemicals combined. Acting Administrator Wheeler reported that EPA has taken enforcement action in eight cases so far and continues to investigate and support state stakeholders in such efforts.
EPA intends to continue and step up its monitoring activities using "state of the art" mapping technology to identify areas where PFAS compounds were produced or used to target areas for specific groundwater monitoring. EPA's associated research will focus on studying human health and ecological affects, fate and transport, remedial treatment technologies and supporting stakeholders. These research efforts will also focus on newer PFAS chemicals, known as GenX.
As reported previously here, here, here, and here, EPA has been working on a PFAS Plan since last year when it convened a National Summit in May 2018. While many actions appear underway, skeptics view this simply as kicking the can down the road. Only time will tell whether EPA's actions will live up to Acting Administrator's remarks at the press conference.
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