Until recently, the federal government, through the Environmental Protection Agency (EPA), has provided little guidance on PFAS regulation. "Health advisories" related to PFAS have been in effect since 2009; however, these advisories are for informational purposes only and, thus, non-enforceable and non-regulatory. While the federal "Safe Drinking Water Act," 42 U.S.C. § 300f et seq., allows the EPA to set enforceable Maximum Contaminant Levels (MCLs) for specific chemicals, there is currently no federal MCL for PFAS chemicals. On February 14, 2019, however, the EPA released a "PFAS Action Plan," which outlines multi-pronged short- and long-term goals.1 Of specific note are the following objectives: (1) evaluating the need for setting MCLs of certain PFAS chemicals; (2) developing PFAS clean-up recommendations; and (3) initiating action to designate certain PFAS chemicals as "hazardous substances" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Currently, PFAS are designated as "pollutants or contaminants" under CERCLA. The later goal would, among other things, require reporting related to PFAS use and provide the EPA authority to require certain entities to carry out and/or pay for response actions.
In accordance with the action plan, on April 25, 2019, the EPA released Draft Interim Recommendations for Addressing Groundwater Contaminated with PFAS. This report provides recommendations on screening levels to determine whether identified contamination warrants further investigation and preliminary remediation goals to inform site-specific cleanups that are based on the U.S. EPA's Health Advisory.2 The draft remediation goals would be trumped where state or tribal drinking water standards exist. The EPA expects to make a decision on federal PFAS regulations by the end of 2019, which could potentially go into effect as early as December 2020.3 Until then, however, the EPA has no real enforcement power with respect to PFAS contamination. Meanwhile, Congress has introduced dozens of bills...
