PFAS in EPA’s Strategic Plan Fiscal Years 2022-2026
On March 28, 2022, the Environmental Protection Agency (“EPA”) published its Final Strategic Plan (“Strategic Plan”) setting forth the agency’s priorities over the next four years based on seven strategic goals focused on the protection of the environment and human health. PFAS is addressed under four of these goals:
- Goal 3: Enforce Environmental Laws and Ensure Compliance;
- Goal 4: Ensure Clean and Healthy Air for All Communities;
- Goal 5: Ensure Clean and Safe Water for All Communities; and
- Goal 6: Safeguard and Revitalize Communities.
A Recap on PFAS
Per- and poly-fluoroalkyl substances (“PFAS”) are prolific in number and presence. According to EPA, PFAS are widely used, long-lasting chemicals which break down very slowly over time that can be found in water, air, and soil.1 Studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals.2 Thousands of these man-made chemicals have been manufactured and used globally for many decades and can be found in a number of sources, including commercial household products, industrial products, and construction materials, to name just a few. The health effects of some PFAS, such as PFOS, PFOA, and GenX Chemicals, have been studied in greater depth than many of the thousands of other PFAS chemicals. As a result, the potential regulatory actions related to these chemicals are much further in their development than for many of the other PFAS, which EPA is just beginning to study.
Over the past year, EPA has demonstrated a commitment to addressing various PFAS chemicals in the environment, as indicated by the release of the PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024 in October 2021.3 While the Strategic Plan does not provide much detail on EPA’s upcoming plans, it does indicate that EPA intends to prioritize PFAS under a number of its programs.
EPA’s Final Strategic Plan FY 2022-2026
Under the GPRA [Government Performance and Results Act] Modernization Act of 2010, governmental agencies, including EPA, are required to set goals, measure their performance against such goals, and report publicly on their progress. EPA’s Strategic Plan for the next four years sets out the agency’s priorities regarding both the environment and human health and, for the first time, includes a new goal focused on climate change (“Goal 1: Tackling the Climate Crisis”) and another on environmental justice and civil rights (“Goal 2: Take Decisive Action to Advance Environmental Justice and Civil Rights”). The Strategic Plan also indicates that EPA sees a link between PFAS and this latter goal, stating that “PFAS contamination is another urgent public health and environmental threat facing communities across the United States, with significant potential equity and environmental justice implications.”
EPA incorporates PFAS in four of its strategic goals, thereby continuing to demonstrate its commitment to addressing these “forever chemicals.” In fact, EPA Administrator Michael Regan noted in his “message” to EPA’s Final Strategic Plan that “To safeguard communities and ecological systems from PFAS contamination, EPA will leverage the full range of statutory authorities, developing technologies, and partnerships with other federal agencies to prevent PFAS from entering air, land, and water; accelerate the cleanup of PFAS contamination; and invest in the necessary research.”
Goal 3: Enforce Environmental Laws and Ensure Compliance
EPA’s third goal focuses on two objectives: (1) to hold accountable environmental violators and responsible parties and (2) to detect violations and promote compliance with federal environmental laws and regulations. PFAS are addressed under the first of these objectives. More specifically, EPA states that it will use its enforcement authorities to hold manufacturers and generators of PFAS, along with other emerging contaminants, responsible and will use its civil enforcement program to “compel parties that manufacture or release PFAS . . . in violation of [environmental laws] to return to compliance.” EPA also notes that it can compel parties to address imminent and substantial endangerment caused by such manufacturing or releases.
Goal 4: Ensure Clean and Healthy Air for All Communities
PFAS are briefly addressed under the first of EPA’s objectives under its fourth goal — to improve air quality and reduce pollution at the local, regional, and national level alongside health impacts. Working with other agencies, EPA plans to develop improved measurement methods for PFAS to help support air quality planning and environmental justice analyses. This will include continuing to operate, maintain, and upgrade, as necessary, its State Planning Electronic Collaboration System (SPeCS), Combined Air Emissions Reporting System (CAERS), and Electronic Permit System (EPS).
Goal 5: Ensure Clean and Safe Water for All Communities
PFAS are discussed more thoroughly in Goal 5 than elsewhere in EPA’s Final Strategic Plan, indicating the agency’s clear focus on addressing PFAS contamination in the nation’s waters. Under the first objective of this goal, to “Ensure Safe Drinking Water and Reliable Water Infrastructure,” EPA notes that many marginalized, underserved, and Tribal communities are most vulnerable to exposure to contaminants such as PFAS and thereby lack access to clean and safe water. To that end, the agency plans to work with states to “identify and prioritize infrastructure projects” to replace lead service lines and address PFAS contamination.
EPA also references its PFAS Strategic Roadmap to detail the other actions it intends to undertake: to publish a proposed PFAS National Primary Drinking Water Regulation, to begin monitoring PFAS under the Unregulated Contaminant Monitoring Rule, and to develop effluent limitation guidelines under the Clean Water Act to address PFAS in industrial wastewater (notably, by PFAS manufacturing and the metal finishing industries).4 EPA makes clear that it is “committed to lifting up the voices of all communities, particularly those who have suffered disproportionately from the impacts of PFAS” and, accordingly, “will confront the issue of PFAS by fully leveraging the Agency’s authorities and working closely with federal, Tribal, state, and local partners.”
PFAS are also addressed under the second objective of this goal, to “Protect and Restore Waterbodies and Watersheds.” This includes developing effluent limitation guidelines for metal finishing companies and chemical manufacturers to address the discharge of PFAS in wastewater, alongside a multi-industry wastewater study to examine available information about PFAS use and discharge. Moreover, EPA notes (as also indicated in its PFAS Strategic Roadmap) that it is undertaking several activities relating to PFAS in ambient water, “including development of national recommended water quality criteria, biosolids risk assessment, fish tissue monitoring, [and] analytical method development.”
Goal 6: Safeguard and Revitalize Communities
EPA’s sixth goal focuses on the restoration of land to both safe and productive uses, thereby improving communities and protecting the public health. In relation to this aim, EPA notes the national problem of “thousands” of sites contaminated by chemicals, including PFAS, and commits to prioritizing the cleanup of legacy contamination and facilitating site development.
EPA also details its “agencywide effort” to mitigate and reduce PFAS pollution and its aim to work alongside other agencies, and responsible parties, to assess both the nature and extent of PFAS contamination and identify and utilize effective remediation approaches. EPA intends to establish “best practices” for investigation and cleanup of PFAS. The agency also notes that it will “work to keep pace” with the quickly increasing number of PFAS-related actions at Department of Defense and other federal facility sites and will oversee cleanup efforts, where PFAS releases have been identified as a risk to human health or the environment. Finally, the agency notes its consideration of addressing PFAS contamination via regulatory and statutory authorities and cites as an example its proposal to designate PFOA and PFOS as “hazardous substances” under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act).
In 2021, EPA showed its commitment to addressing PFAS. EPA’s Strategic Plan is another step towards putting this commitment into practice, stating that it will address PFAS under a number of its goals. Importantly, addressing PFAS contamination in sanitation and drinking water remains a priority for the agency.
It is also evident that EPA intends to ramp up enforcement actions against PFAS manufacturers and generators who release these chemicals in violation of applicable environmental laws. The Strategic Plan also clearly links addressing PFAS to one of EPA’s other noted priorities: environmental justice, noting that PFAS contamination has “significant potential equity and environmental justice implications.” As we have noted before, the Biden administration has repeatedly emphasized strengthening enforcement in the context of environmental justice. Enforcement matters concerning both PFAS contamination and environmental justice concerns could move quickly up the priority list at EPA.
Businesses that manufacture, generate, or use PFAS-containing products should identify, assess, manage, and mitigate their potential risks associated with PFAS in their operations and ensure their compliance with future regulations. Facilities that use PFAS-containing substances, including upstream and downstream oil and gas operations that have used fire-fighting foams to address petroleum-based fires, should also evaluate their use of these products and their processes for addressing the release of these substances into the environment. Given EPA’s repeated statements that it will focus on PFAS under its enforcement program, as well as through future regulation, businesses would also be wise to remain informed about forthcoming EPA actions and, where applicable, be prepared to comment on proposed rulemakings.
The PFAS Taskforce
V&E’s PFAS Taskforce is dedicated to helping our clients navigate the emerging and complex law and regulations that may be used to address PFAS and related chemicals. By actively tracking and analyzing the different federal and state regulatory approaches to addressing PFAS — whether in water, groundwater, soil, and air — and engaging with the evolving scientific understanding of PFAS substances, we can help our clients build short- and long-term strategies to address potential liability, remediation, and litigation concerns regarding these emerging contaminants. Drawing upon the significant capabilities in our cross-office environmental team, V&E’s PFAS Taskforce is on hand to provide practical and tailored guidance for our clients as they prepare for the shifting PFAS landscape.
1 PFOA, PFOS and Other PFASs: PFAS Explained, EPA , https://www.epa.gov/pfas/pfas-explained (last visited Apr. 14, 2022).
3 See Research, Restrict, and Remediate PFAS: What to Expect Next from EPA, V&E Insight (Jan. 26, 2022), https://vinsonelkins-preview.onenorth.com/insights/research-restrict-and-remediate-pfas-what-to-expect-next-from-epa/.
4 See EPA Takes Action on PFAS in Waste Water, V&E Insight (Oct. 22, 2021), https://vinsonelkins-preview.onenorth.com/insights/epa-takes-action-on-pfas-in-waste-water/.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.