By Brianna Schroeder, Janzen Schroeder Agricultural Law LLC
This month, the Biden Administration announced a new plan to combat per- and poly-fluoroalkyl substances (PFAS) contamination. As part of this plan, the Environmental Protection Agency (EPA) launched a “PFAS Roadmap,” which lays out a three-year comprehensive agency approach to addressing PFAS. The program will focus on three areas: (1) research; (2) regulate; and (3) remediate.
Research. The EPA published a national testing strategy. This will include nationwide monitoring for PFAS in drinking water. The EPA will also review existing PFAS usage and new PFAS under the Toxic Substances Control Act (TSCA) to ensure these substances do not create environmental concerns. The EPA is expected to develop additional methods to detect and measure PFAS in the air, soil and groundwater.
Regulate. The EPA will propose a rulemaking to remove exemptions and exclusions for PFAS for toxic chemical reporting under the Toxic Release Inventory. The EPA Office of Land and Emergency Management will propose a rule designating certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA.) The EPA will also establish a national primary drinking water regulation for PFAS and publish health advisories on final toxicity assessments to enable state and local governments to take appropriate action. The EPA will restrict PFAS discharges through an Effluent Limitations Guidelines program. Toward the end of the three-year plan, the EPA is expected to finalize risk assessment for PFAS that will serve as the basis for whether PFAS regulation is appropriate.
Remediate. The EPA’s stated goal is to “[b]roaden and accelerate the cleanup of PFAS contamination to protect human health and ecological systems.” The EPA announced it will accelerate public health protections by identifying PFAS based, in part, on removal technologies. The EPA will evaluate and develop additional technologies for reducing PFAS in the environment to inform local decisions on drinking water and wastewater treatment, site clean-ups, and air emission controls. The EPA’s plan includes using the NPDES program permitting to reduce and measure PFAS discharges to waterways.
On a state level, IDEM recognizes the most recent EPA-published methods for PFAS sampling in surface water, groundwater and wastewater. Beginning in February 2021, IDEM indicated it would facilitate PFAS monitoring at all Community Public Water Systems. This sampling is being phased in between March 2021 and May 2023.
While the EPA’s PFAS plan is rolled out, other agencies have announced steps to combat PFAS contamination in our food supply, in fire suppression tools and in packaging materials, including the Department of Defense, the Food and Drug Administration, the United States Department of Agriculture, and the Department of Homeland Security. Back in February, President Biden instructed the EPA to begin developing the national primary drinking water regulation. The U.S. House of Representatives passed the PFAS Action Act of 2021 in July 2021 by a vote of 241-183. The Senate referred the bill to the Committee on Environment and Public Works. Biden’s recent PFAS Roadmap announcement comes as no surprise based on the Administration’s focus on the environment and the flurry of activity at the executive and legislative branches to address PFAS, the “forever chemicals.”
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