On October 18, 2021, the U.S. Environmental Protection Agency (“EPA”) issued its highly anticipated PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, setting forth a three-year multi-agency strategy to address per- and polyfluoroalkyl substances (“PFAS”). The plan outlines actions that will fundamentally alter the administrative landscape around PFAS.

PFAS are a diverse group of thousands of chemicals, including hundreds actively used in commerce for decades. They are resistant to water, grease, oil, and heat, which make them persistent in the environment. Because of their lasting properties, PFAS have been used in a wide range of consumer and industrial products including carpeting, paints, stain-resistant fabrics, cleaning products, and fire-fighting foams, among others.

The Strategic Roadmap (“Roadmap”) has a three-pronged approach to address PFAS issues in the environment: 1) research; 2) restriction; and 3) remediation. Under the research prong, the EPA intends to invest in research, development, and innovation to “increase understanding”’ regarding the different types of PFAS, effective interventions for contamination, and their effects on human health and the environment. Under the restriction prong, the EPA aims to prevent PFAS from entering the environment by regulating production and requiring more in-depth reporting. This includes “plac[ing] the responsibility for limiting exposures and addressing hazards of PFAS on manufacturers, processors, distributors, [and] importers[.]” Finally, under the remediation prong, the EPA aims to “broaden and accelerate the cleanup of PFAS contamination.”

A few of the new regulatory initiatives include the following:

  • The Potential Designation of PFOS and PFOA as Hazardous Substances Under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The two most extensively studied PFAS are perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). A CERCLA designation as “hazardous” could create issues for a significant number of parties who may become liable to the EPA for the clean-up of contaminated sites. PFAS manufacturers, product manufacturers, airports, water treatment facilities, and landfills are only a handful of the entities that may be subject to liability for clean up under CERCLA. Additionally, in spring 2022, the EPA plans to issue an “advance notice of proposed rulemaking” to seek input on whether it should designate other “various” currently unnamed PFAS as hazardous substances as well. The Roadmap indicates the “proposed rulemaking” is expected to be ready for public comment in Spring 2022.
  • Finalization of PFAS Reporting Under the Toxic Substances Control Act (“TSCA”). In June 2021, the EPA published a proposed rule under TSCA regarding data-gathering that seeks to collect information on any PFAS manufactured or imported since 2011. This incredibly broad proposed rule will require manufacturers and importers to report information on uses, production volumes, byproducts, exposure, disposal, and hazards of all PFAS manufactured or imported for the last decade. Businesses will have one year from the effective date of the final rule to submit all information to the EPA. The Roadmap indicates the EPA plans to finalize this this rule by January 1, 2023.
  • Establishing Nationwide Drinking Water Limits. While several states have drinking water limits for some PFAS substances, the EPA, to date, has not established similar limits. The Roadmap outlines a plan to have a final rule for drinking water regulation by the Fall of 2023. A national drinking water limit will require every state to assess the concentration of PFOA and PFOS in their drinking water, and to create treatment systems and permit limits to comply with the drinking water limits.
  • The Evaluation of PFAS Air Emissions. The EPA will create the “technical foundation” required to evaluate PFAS air emissions under the Clean Air Act. The Roadmap indicates that by Fall 2022, the EPA plans to evaluate air emissions mitigation options, and potentially classify some PFAS compounds as hazardous air pollutants.
  • Creating a PFAS Testing Strategy. To date, very few PFAS have been evaluated and tested for toxicity. The EPA’s Roadmap outlines a national PFAS testing strategy to establish a better understanding of the toxicity of more PFAS substances. This process will provide the EPA with a way to identify and select PFAS substances that the EPA will require to be tested pursuant to the Toxic Substances Control Act. The initial round of test orders will be issued by the end of 2021.

The Roadmap outlines a blueprint for future actions that could have significant effects on a multitude of industries. While it is detailed and provides specific assignments for multiple agencies, the majority of the deadlines are vague and there are no established mechanisms for enforcement or changing of the plans. These issues, along with the explicit disclosure by the EPA that the plans are “subject to the availability of appropriations and other resources,” indicates that the EPA may not implement all of the discussed actions. The Roadmap does make clear, though, that significant PFAS regulations will very likely be implemented in the next two or three years, and these regulations will affect facilities and industries across the country.