Perfluorinated Chemicals in the Environment: How the EPA’s PFAS Action Plan Expands Liability for Potentially Responsible Parties

By Samuel L. Ballard


On February 14, 2019, the United States Environmental Protection Agency (EPA) released its much-anticipated PFAS Action Plan (the Plan), concerning the regulation of per- and polyfluoroalkyl substances (PFAS). Pursuant to the Plan, EPA initiated the regulatory development process to list PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which could dramatically expand the number of potentially responsible parties and cleanup costs at CERCLA sites.

EPA historically addressed these chemicals through a stewardship program under which companies that manufactured PFAS agreed to voluntarily halt their production, and companies that used PFAS agreed to stop importing them. However, based on data collected in 2016 from EPA’s third unregulated contaminant monitoring rule, the Agency found that 66 different public water systems, which serve six million people, had PFAS drinking water concentrations above EPA’s Lifetime Health Advisory. As a result, EPA put forth the current Plan, calling it “the most comprehensive, cross-agency action plan for a chemical of concern ever undertaken by the Agency.” At this stage, the PFAS Action Plan serves as a guide for future rulemaking, as EPA has not yet proposed any rule changes pursuant to the Plan. However, the Agency plans to engage in rulemaking as early as this year to begin carrying out the Plan’s short-term goals, at which time industry and the public will have an opportunity to comment.

What are PFAS?

PFAS are comprised of a diverse group of man-made chemicals, which are used in a variety of industries for their stain-resistant, waterproof, and nonstick properties. Specific PFAS-based products include water resistant clothing and athletic equipment, non-stick cookware, stain-proof and waterproof carpets, water and grease resistant food packaging, fire¬fighting foam, shampoos and dishwashing liquids, and even sticky notes. PFAS also have a range of applications in aerospace, aviation, automotive, and electronic industries.

EPA has compiled a Master List of PFAS, encompassing over 5,000 different chemical compounds. Studies have shown that many PFAS are carcinogens or reproductive toxicants—which can cause fertility issues, hormone disruption, immunological deficiencies, and interfere with child learning development. Furthermore, PFAS are referred to as “forever chemicals” because they are extremely persistent in the environment and do not readily break down. As such, the Plan aims to both reduce PFAS use, contamination, and exposure to protect human and environmental health.

Plan Outline

Specifically, the PFAS Action Plan consists of 23 priority actions that generally impact four areas: (1) groundwater; (2) drinking water; (3) human health risks; and (4) chemical and consumer product regulation. The majority of these action items are short-term with a two-year completion date, including data collection and sharing, risk communication, development of improved testing and treatment methods, and Significant New Use Rules under the Toxic Substances Control Act. The Plan also lays out long-term actions, including listing PFAS in the Toxic Release Inventory, which tracks the release of chemicals into the environment, and evaluating effluent limitation guidelines for PFAS, as well as ambient water quality criteria to aid states in setting permit limits on discharges of PFAS into waterbodies.

The Plan also sets a short-term goal of designating two specific types of PFAS—Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA)—as CERCLA “hazardous substances.” The designation would provide EPA with additional authority to address PFOS and PFOA contamination in groundwater by forcing potentially responsible parties to implement and/or pay for groundwater cleanup actions. In addition, EPA is developing interim recommendations to guide state agencies in making site-specific cleanup determinations.

The Plan further seeks to set Maximum Contaminant Levels (MCLs) under the Safe Drinking Water Act for both PFOS and PFOA. Such a significant step will require notice and comment rulemaking.

Additionally, the Plan calls for heightened PFAS research, including the development of new analytical methods to detect more PFAS chemicals in the environment. The Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry are promoting these research efforts by assessing specific communities near current or former military installations to determine human exposure to PFAS. In fact, a military installation in Lubbock County, Texas, near the Reese Technology Center, was identified in the Plan as a research subject. The results of these exposure assessments will help communities better understand the extent of their environmental exposure to PFAS.

State Action

Although the Plan calls for a wide range of actions to address PFAS, many states have already begun to push forth their own policies.

For example, Washington, Minnesota, Michigan, Kentucky, Virginia, New York and Connecticut, have taken steps to prohibit PFAS in firefighting foam. Washington, Kentucky, New York, Connecticut, Rhode Island, Massachusetts, and Vermont have taken steps to prohibit PFAS in food packaging. In addition, Washington, Florida, California, Oregon, and Vermont are taking steps to address reporting of PFAS discharges or use in products. Furthermore, California and Michigan have established specific PFAS monitoring requirements for water systems.

And despite the Plan’s call for the development of MCL standards, seven states (Alaska, California, Minnesota, New Hampshire, New Jersey, New York, and Vermont) have already implemented policies to set MCL standards that are more stringent than EPA’s current health advisory of 70 parts per trillion for PFOA and PFOS.

Some states have already developed specific PFAS testing requirements for biosolids/sludge program licensees and composting facilities before any additional land application of these materials is permitted. For example, the Maine Department of Environmental Protection now requires licensed facilities that land apply, compost, or process biosolids (i.e. wastewater treatment sludge) to test this material for PFAS before application. This state requirement was implemented in response to dairy farms shutting down in Maine after they became contaminated with PFAS from sludge spread on the farmland.

Finally, a handful of states, including Minnesota, New York, and New Jersey, have brought suit against manufacturers of products that historically contained PFAS, under theories of natural resource damage, trespass, nuisance, and negligence. The New Jersey litigation is particularly interesting because it began with the New Jersey Department of Environmental Protection (NJDEP) issuing a directive to five chemical manufacturing companies that it believed contributed to PFAS contamination throughout the state. The directive requires these companies to provide a detailed accounting of their historical use and discharge of PFAS and emphasized that the companies would be held financially responsible for remediation costs of any contaminated sites. Shortly after issuing the directive, NJDEP filed suit seeking cleanup and removal costs against the potentially responsible parties.

Although the Texas Commission on Environmental Quality (TCEQ) has not yet addressed the Plan, it will be interesting to see how the agency responds.

Conclusion and Recommendations

The increasing focus of PFAS at the state and federal level may have wide-sweeping effects in the years to come. The PFAS Action Plan could significantly impact compliance obligations and costs, increase enforcement actions, and trigger future litigation. This is especially true considering that a core focus of the Plan involves designating PFAS as “hazardous substances” under CERCLA, thereby expanding the scope of potentially responsible parties that may manufacture, use, or dispose of these substances. Therefore, it is imperative that parties dealing with PFAS—including manufacturers, municipalities, utilities, buyers, and purchasers of contaminated real estate—stay informed on the regulatory changes.

Sam Ballard is an Associate in the Firm’s Air & Waste and Compliance & Enforcement Practice Groups. If you would like additional information or have questions related to this article or other matters, please contact Sam at 512.322.5825 or

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