EPA Won’t Regulate PFAS

The federal Environmental Protection Agency (EPA) will not regulate PFAS chemicals, according to a recent report from Politico. While EPA’s PFAS (specifically, per- and polyfluoroalkyl substances) plan has not yet been released, it is reported to leave PFAS off the federal water quality testing requirements for utilities under the Safe Drinking Water Act. However, the plan would include the chemicals as hazardous substances under the Superfund toxic cleanup program. The plan is currently undergoing interagency review.

The Safe Drinking Water Act authorizes EPA to establish minimum water quality standards for water utilities.  Under the Act, utilities must test for and remove certain hazardous substances in drinking water. EPA must show that a contaminant is dangerous and that setting a limit would meaningfully reduce health risks before it can regulate a substance. The new EPA plan would not require utilities to test and remove PFAS.

The Superfund program , established by the Comprehensive Environmental Response, Compensation and Liability Act, requires parties responsible for contamination to perform cleanups or pay for cleanup work. The program also gives EPA the authority to clean up contaminated sites where there is no identifiable responsible party. The new EPA plan would include PFAS as hazardous substances under the Superfund program.

At the state level, the Wisconsin Department of Natural Resources recently issued an interim decision expanding voluntary parties’ future liability for PFAS and other hazardous materials. However, it is not entirely clear that the DNR has the authority to make this policy change based on a plain reading of Wisconsin statutes.