21 October 2021

Five Key Takeaways: EPA’s PFAS Strategic Roadmap

On Monday, October 18, the U.S. Environmental Protection Agency (EPA or Agency) released its Strategic Roadmap for PFAS (per- and poly-fluoroalkyl substances). As we summarized in our previous post, the Strategic Roadmap outlines a number of key actions EPA intends to take over the next three years to address the human health and environmental effects of PFAS.

Here are five key takeaways:

  1. EPA is planning to address PFAS across environmental media. EPA’s Strategic Roadmap outlines rulemaking and technical assessment actions by five offices within the Agency, covering distinct federal environmental statutory regimes in a variety of environmental media. While the Agency has previewed many of these proposed actions, the scope and scale of the Strategic Roadmap proposal is noteworthy. The Agency offices tapped in the Roadmap are i) the Office of Chemical Safety and Pollution Prevention, which implements the Toxic Substances Control Act (TSCA); ii) the Office of Water, which implements the Safe Drinking Water Act (SDWA) and Clean Water Act; iii) the Office of Land and Emergency Management, which implements the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund); iv) the Office of Air and Radiation, which implements the Clean Air Act; and v) the Office of Research and Development, which conducts technical research and develops research methodology to support Agency policymaking.
  2. Litigation risk looms. Major EPA rulemakings always face a threat of litigation, challenging the administrative process or adequacy of the Agency’s decisionmaking. Given the breadth of EPA’s rulemaking proposals (including listing certain PFAS as hazardous substances under Superfund, establishing national primary drinking water standards for certain PFAS under the SDWA, and publishing advance notices of rulemaking to regulate additional categories or types of PFAS) as well as the technical reviews the Agency is planning to undertake, we can foresee major legal challenges looming. Also worth considering is that the Strategic Roadmap extends through the end of President Joe Biden’s term in 2024. The defense of these ambitious proposals and aggressive rulemaking timelines may then depend on the outcome of the next presidential election.
  3. Specific industries are identified. With the scope of this Strategic Roadmap, it is likely that EPA’s policymaking decisions will affect a wide variety of industry sectors and supply chains. However, the Agency directly identifies a number of specific industry sectors that will be covered in the first instance. These include chemical manufacturers and importers (subject to TSCA); organic chemicals, plastics, and synthetic fibers; metal finishing; electroplating; electrical and electronic components; textile mills and carpet manufacturing; landfills; leather tanning and finishing; plastics molding and forming; paint formulating; pulp, paper, and paperboard; and airports (identified as potentially subject to discharge restrictions enforced through new effluent limitations guidelines).
  4. Environmental justice is at the forefront. Foregrounded throughout the Strategic Roadmap is the Biden administration’s emphasis on environmental justice considerations. As Administrator Michael Regan notes in the preface, the Roadmap “is [EPA’s] plan to deliver tangible public health benefits to all people who are impacted by these chemicals — regardless of their zip code or the color of their skin.” EPA lists as a one of its key objectives conducting research “to understand how PFAS contribute to the cumulative burden of pollution in communities with environmental justice concerns.” EPA specifically notes that it will be using environmental justice monitoring to evaluate PFAS air pollution and how it may disproportionally affect communities with environmental justice concerns. As this administration continues to develop an environmental justice framework for policymaking, we would expect to see those tools deployed in the PFAS arena quite directly.
  5. Federalism considerations. As federal regulators have been developing policymaking objectives to address PFAS, certain states have stepped out in front and codified PFAS-related drinking water standards and other enforceable limits. For example, states such as Michigan, New Jersey, and New York have set enforceable drinking water limits for certain PFAS. It bears watching at what level EPA proposes to set its own drinking water standards, and other enforceable standards, relative to the state standards and the implications of conflicting standards.

The Roadmap is, of course, only an announcement of a plan. How this will all unfold remains to be seen. Moreover, within the federal government there are competing interests, given the significant contribution of PFAS to the environment from military activities. There are also proposals before the Congress that would further address PFAS that could adjust EPA’s timeline and priorities.

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