On October 18, 2021, EPA Administrator Michael Regan announced the agency’s Strategic Roadmap for comprehensively addressing contamination by per- and polyfluoroalkyl substances (PFAS), a class of thousands of chemicals that are ubiquitous across industries and are seriously harmful to human health.^[1] The Strategic Roadmap articulates over 30 key actions that address PFAS contamination under at least five of the country’s major environmental statutes and propose additional areas for research.^[2]

Among the most notable of these actions include promulgating rules setting enforceable maximum contaminant levels (MCLs) for PFOS and PFOA, two of the most prominent PFAS, under the Safe Drinking Water Act (SDWA) and listing them as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and conducting toxicity testing on 24 other PFAS compounds.^[3] These promises certainly sound impressive, but does Regan’s plan do enough to ensure comprehensive protection for past and presently exposed individuals? Can the public trust Regan’s word to get things done?

What would it take to properly regulate PFAS?

To address the full historical and chemical scope of its contamination, PFAS must be strictly regulated across all major environmental statutes. Industrial polluters like 3M have been producing and discharging large amounts of PFAS, particularly PFOS and PFOA, since the 1940s, and firefighting centers and airports have been using products containing PFAS to fight chemical fires since the 1960s.^[4] As such, PFAS, which have been dubbed “forever chemicals” for their inability to naturally break down, have been accumulating in surface and groundwater for decades and now threaten more than 16 million Americans across 38 states with exposure.^[5] To ensure that individuals harmed by these past exposures are adequately protected, PFAS must be regulated under CERCLA, as state law toxic tort remedies have been insufficient, especially at the large scale.^[6] Furthermore, PFAS must be regulated across all of the different contexts in which they are released. While PFAS policies have typically focused on drinking water protections under the SDWA, studies are increasingly recognizing the presence and significance of PFAS as air pollutants that should be regulated under the CAA.^[7] Given that industrial polluters have in the past replaced their use of traditional PFAS with new and unknown PFAS to avoid liability, regulations of current PFAS emissions should address PFAS as a class and prevent the introduction of new and harmful variants.^[8]

How does the Strategic Roadmap succeed?

Regan’s plan, at least in theory, seems to at least partially fill in most of the broad regulatory boxes necessary to get the PFAS problem under control. If the Agency executes on its goals, at least some PFAS will be regulated under CERCLA and the SDWA, the production of some new PFAS will be restricted under the Toxic Substances Control Act (TSCA), and progress will be made toward regulating PFAS air emissions. These steps forward should not be minimized, particularly the potential for CERCLA liability. Allowing the government and private parties to bring liability suits against polluters who released PFOS and PFOA, the two PFAS used most historically, could result in significant aid to victims of illness brought on by PFAS and landowners with unusable property.

Where does the Strategic Roadmap fail?

Despite the progress that it promises, the Strategic Roadmap does not, as Regan and the Biden EPA implied, provide a full fix to the PFAS problem. Most notably, the plan does not go nearly far enough to ensure that industrial polluters cannot skirt potential liability by substituting new, unregulated PFAS in their operations. As environmentalists point out, to fully address this issue EPA should have employed more class-based regulation of PFAS under statutes like SDWA and TSCA.^[9] Instead, EPA seemed to minimize its considerations of PFAS as a class: it limited its definition of the PFAS class to exclude some 2,500 compounds that other sources recognize, and limited its research on the effects of different properties within the class to a mere few dozen compounds.^[10] EPA should have recognized that actions with respect to PFOS and PFOA were necessary but not sufficient.

Furthermore, the Strategic Roadmap provides no guarantee that any of its actions will actually come to fruition. The plan offers tentative time periods by which the public can expect proposed and final rules, but no concrete rulemakings accompanied the announcement of the Strategic Roadmap itself. The 2019 PFAS Action Plan, issued by the Trump EPA, announced a similar set of planned actions including hazardous substances designations and MCLs for PFOS and PFOA, yet the Agency did not follow through. Certainly, the Biden Administration has been much more dedicated to PFAS than the Trump Administration ever was, and the Biden EPA has worked to address other pressing environmental issues.^[11] Yet it remains to be seen whether the Strategic Roadmap is a concrete game plan or a set of empty promises.

So what’s the upshot?

Regan’s Strategic Roadmap should be praised as a step in the right direction toward regulating PFAS. It should not be viewed as encompassing all that is necessary to solve the PFAS problem. More aggressive and complete regulations will be necessary before EPA can claim that it has PFAS under control.

^[1] Press Release, U.S. Env’t Prot. Agency, EPA Administrator Regan Announces Comprehensive National Strategy to Confront PFAS Pollution (Oct. 18, 2021), https://www.epa.gov/newsreleases/epa-administrator-regan-announces-comprehensive-national-strategy-confront-pfas.

^[2] See U.S. Env’t Prot. Agency, PFAS Strategic Roadmap: EPA’s commitments to Action 2021-2024 (2021) (hereinafter Strategic Roadmap).

^[3] Id.

^[4] PFAS History, 3M (2021), https://www.3m.com/3M/en_US/pfas-stewardship-us/pfas-history/;  Toxic Timeline: A brief history of PFAS, Santa Fe New Mexican (Feb. 22, 2019), https://www.santafenewmexican.com/news/local_news/toxic-timeline-a-brief-history-of-pfas/article_20609664-48c7-574e-a9f7-1fb813e9a13e.html.

^[5] Breaking Down Toxic PFAS, Earthjustice (Oct. 19, 2021); https://earthjustice.org/features/breaking-down-toxic-pfas; see also Annie Sneed, Forever Chemicals are Widespread in U.S. Drinking Water, Scientific American (Jan. 22, 2021) https://www.scientificamerican.com/article/forever-chemicals-are-widespread-in-u-s-drinking-water/ (Reporting that PFAS affects the drinking water of 200 million individuals worldwide).

^[6] See, e.g. Baker v. Saint-Gobain Performance Plastics Corp, 959 F.3d 70 (2d. Cir. 2020) (dismissing requests for medical monitoring by plaintiffs who consumed water from a system contaminated with PFOA by a Teflon manufacturing facility); Little Hocking Water Ass’n, Inc. v. E.I. du Pont Nemours and Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015) (granting summary judgment to industrial defendant who allegedly contaminated water systems with PFOA on plaintiffs’ toxic tort claims of abnormally dangerous activity and unjust enrichment).

^[7] See, e.g. Emma L. D’Ambro et al., Characterizing the Air Emissions, Transport, and Deposition of Per- and Polyfluoroalkyl Substances from a Fluoropolymer Manufacturing Facility, 55 Env’t. Sci. and Tech. 862 (2021) (acknowledging and characterizing PFAS air emissions).

^[8] See Cheryl Hogue, What’s GenX still doing in the water downstream of a Chemours plant? Chemical & Engineering News (Feb. 12, 2018) https://cen.acs.org/articles/96/i7/whats-genx-still-doing-in-the-water-downstream-of-a-chemours-plant.html (detailing how DuPont began developing the PFAS GenX as a replacement for PFOA in response to rising concerns about PFOA’s toxicity).

^[9] See, e.g. Sharon Lerner, People Exposed to PFAS Criticize EPA Action Plan as Too Little, Too Late, The Intercept (Oct. 19, 2021, 11:33 AM), https://theintercept.com/2021/10/19/pfas-epa-water-dupont-chemours/; E.A. Crunden, EPA’s long-sought PFAS plan falls short with critics (Nov. 11, 2021, 1:40 PM https://subscriber.politicopro.com/article/eenews/2021/11/11/health-groups-slam-epas-big-pfas-plan-slow-and-toothless-282868.

^[10] Strategic Roadmap, supra note 2.

^[11] See Joe Gardella, PFAS Under Biden Administration — Change is Coming, The National Law Review (Dec. 18, 2020) https://www.natlawreview.com/article/pfas-under-biden-administration-change-coming (describing PFAS regulation as one of Biden-Harris’s top campaigning issues); see, e.g. Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, (proposed Nov. 1, 2021) (to be codified at 40 C.F.R. pt. 60) (proposing national reductions on methane pollution); Tolerance Revocations: Chlorpyrifos, 86 Fed. Reg. 48315 (Aug. 30, 2021) (to be codified at 40 C.F.R. pt. 180) (revoking the use of the pesticide chlorpyrifos on food in a final rule).