Biden Administration refocuses federal environmental priorities on PFAS

With the change in the White House comes new priorities and new areas of focus. In the arena of federal environmental policy, Environmental Business Journal (EBJ) analyzes how these changes in priorities impact environmental markets. It is no secret that the Biden Administration ranked critical climate issues higher on the federal priority list than the former Trump Administration, and EBJ’s recent survey demonstrates the dichotomy between each administration’s approach to the environment. Among the Biden Administration’s top priorities are PFAS and other emerging contaminants, which were absent among the Trump Administration’s priorities. Per and Polyfluroalkyl Substance, or PFAS, represents a very large family of man-made chemicals which vary in their chemical and physical properties and pose a risk to human health and the environment. PFAS compounds are released to the environment through industrial processes, their use in consumer products, and firefighting foam.

According to SoundEarth Strategies’ Principal Geochemist Tom Cammarata, PFAS compounds are ubiquitous in the environment due to their solubility and resistance to degradation once released to the environment. Trace levels of PFAS have been identified globally in the environmental media.

In the early 2000’s, the US EPA identified PFAS as a contaminant of emerging concern, but until this April, little movement had been made to designate PFAS compounds as hazardous substances regulated under CERCLA, RCRA, and Clean Air and Water Acts. Cammarata points out that since PFAS compounds are not yet designated as hazardous substances, the U.S. EPA and state governments have not yet established cleanup levels for PFSA compounds but have established screening levels for some environmental media.

The Biden Administration’s renewed focus on PFAS gives hope to some that it might lead to renewed focus on PFAS Toxicity Assessments and the PFAS Action Plan. In April, the EPA updated the PFAS toxicity assessment and also recommitted to the PFAS Action Plan with the goal of developing reliable and consistent laboratory methods of detecting and identifying PFAS in drinking water. The Administration made a budget request of $75 million to accelerate toxicity research intended to support the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances. There also is an active legislative effort to pass comprehensive PFAS legislation. This summer the US House of Representatives passed the PFAS Action Plan of 2021, which is the most comprehensive federal PFAS bill developed to date. Though not taken up by the Senate yet, this legislation would do the following:

  • Establish national drinking water standards under the Safe Drinking Water Act (1974)
  • Designate PFAS as a hazardous substance under CERCLA
  • Designate certain PFAS as hazardous air pollutants under the Clean Air Act (1970)
  • Create labeling requirements regarding a product’s PFAS content
  • Establish CWA effluent limitations, pretreatment standards, and water quality criteria

Still, the future of the PFAS Action Plan of 2021 remains to be seen. Some predict this administrative and legislative focus change will have little impact on businesses, but some economists and pro-business groups caution businesses from turning a blind eye. First, the plan strengthens the EPA’s ability to take regulatory action on all PFAS compounds when it comes to the following: drinking water, industrial effluent discharge, air pollution, and land-based environmental pollution. This includes the 97 chemicals and 12 microbial contaminants on the EPA’s Contaminant Candidate List 5.

Many of these contaminants are used by businesses and industries every day, not to mention the waste management companies and businesses generating industrial waste. How they dispose of waste ladened with these contaminants – whether they created the PFAS-contaminated item or not – may become an issue for these businesses moving forward.

Second, property owners may become responsible for PFAS contamination on their property whether their business caused the contamination or not. Under the plan, there is a concern circulating that local and state agencies may require a business to clean up their property at their own expense even if the PFAS contamination was not the result of the business’s operation or if there was no prior knowledge of the contamination.

Finally, many in the water industry – the American Water Works Association, the Water Environment Federation, the Association of Metropolitan Water Agencies, the National Association of Clean Water Agencies, the National Association of Water Companies, the National Rural Water Association, and the U.S. Conference of Mayors – oppose the bill, and they are lobbying the Senate hard to keep the vote on the bill at bay.

With the PFAS Action Plan of 2021 languishing in the Senate at the moment, the fate of the plan, Biden’s administrative priorities, and the future of safer drinking water hang in the balance. Stay tuned.