March 29, 2019
Authored by: Tom Lee, Bryan Keyt and Steven Poplawski
PFAS are currently the subject of significant regulatory action, research, litigation, and public debate based on recent reports which claim that two PFAS, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonate (“PFOS”), that were formerly used in a variety of industries may be carcinogens or reproductive toxicants. Several states have begun investigating and regulating the levels of PFAS in drinking water, and in some cases, for example Minnesota and New York, have sued manufacturers of the chemicals themselves or products that historically contained PFOA and PFOS, bringing claims for the recovery of natural resource damages, trespass, nuisance, and negligence.
EPA has historically addressed these chemicals through a stewardship program under which the companies that manufactured PFOA and PFOS agreed to voluntarily stop their production, and companies that used PFOA and PFOS agreed to stop importing them. Now, however, Acting Administrator Wheeler is under increasing bipartisan pressure to take federal regulatory action.
Into the teeth of this debate, EPA unveiled its much-anticipated PFAS Action Plan (the Plan) on February 14, 2019. The full Action Plan can be found here, and a helpful one page summary is also available here. The Action Plan does not actually make any determinations, or propose or set any new regulatory standards for this wide group of chemicals. Instead, it provides a comprehensive preview of the next several years’ worth of federal investigation into, and regulation of these diverse chemicals which are used in a variety of industries to make products including water resistant clothing and athletic equipment, non-stick cookware,