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Vol. 51-1 Solid Waste

October 22, 2021

Solid Waste

Important remaining steps in the EPA’s PFAS Action Plan

The Environmental Protection Agency’s (EPA) current approach to regulating per- and polyfluoroalkyl substances (collectively, PFAS) neither sets a drinking water standard for these two common PFAS nor does it declare them to be hazardous substances.[1] Detectable levels of PFAS in the human body are associated with numerous negative health outcomes, including serious forms of cancer.[2] However, the EPA has made modest strides to regulate individual PFAS. In 2018, it announced a comprehensive plan to address PFAS pollution.[3]

Background on PFAS

PFAS refers to a class of per- and polyfluoroalkyl substances.[4] The chemical properties of PFAS —specifically the chains of strong carbon-fluorine bonds—makes them highly resistant to water, oil, and heat.[5] These properties make PFAS useful in a wide variety of commercial and industrial applications, including in non-stick pans and electronics manufacturing.[6] However, because of their strong carbon-fluorine bonds, PFAS can bioaccumulate and are highly environmentally persistent.[7] When a chemical is environmentally persistent, it degrades very slowly or not at all, extending the period in which the chemical can affect human and environmental health.[8] For example, PFAS were detected on an Air Force base twenty years after firefighting foam containing PFAS was used there.[9]

Because of their wide use and environmental persistence, PFAS contamination is widespread.[10] In the United States, it is estimated that 99% of people have PFAS in their blood, based on representative blood serum testing.[11] PFAS have also been detected in locations as remote as the Arctic Circle and the Tibetan Plateau.[12] People are exposed to PFAS in a variety of ways.[13] For instance, non-stick cookware and water- and stain-resistant textiles are an avenue for household exposure.[14] Workers in industrial facilities are exposed through common industrial processes or from fire suppression systems.[15] Firefighting foam containing PFAS is a source of contamination for groundwater, as are other point sources such as landfills.[16] Plants and animals that bioaccumulate PFAS are a source of exposure when humans eat them.[17] Even breastmilk is an exposure vector for PFAS in infants.[18]

PFAS are associated with a wide variety of negative health effects; however, different varieties and concentration levels of PFAS have different effects on the body.[19] Notably, PFAS can affect puberty, birth weight, immune functioning, and thyroid activity, and they can even cause liver disease and testicular and kidney cancer.[20] Unfortunately, “for most [varieties of] PFAS[,] there is limited or no toxicity information.”[21]

Previous EPA Actions Regarding PFAS

Despite widespread contamination and the risk of environmental persistence and bioaccumulation, regulating PFAS has not been straightforward. The EPA successfully eliminated the production of two PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—through voluntary phase-out programs.[22] Under the EPA’s PFOA Stewardship program, eight manufacturers and processors met the program goal of eliminating PFOA manufacture and use by 2015.[23] A similar PFOS phase-out started in 2000 after the scope of exposure was discovered.[24] Although PFOA and PFOS are still detectable in serum samples, the concentration has decreased substantially between 1999–2016.[25]

Although it was successful, the PFOA Stewardship program was voluntary and addressed only one out of hundreds of PFAS.[26] In contrast with the PFOA Stewardship program, the current plan to address PFAS is more comprehensive and significantly wider in scope.

PFAS Action Plan

In February of 2019, the EPA released its PFAS Action Plan (the Action Plan) which details the administration’s approach to address PFAS regulation challenges.[27] EPA Administrator Andrew Wheeler characterized the Action Plan as “the most comprehensive cross-agency plan ever to address an emerging chemical of concern” and declared nearly a year after its release that the EPA was “aggressively” implementing the plan.[28]

The Action Plan includes approximately twenty agency actions including: setting short- and long-term research goals, communicating with the public and other stakeholders regarding PFAS risks, developing of toxicity assessments for seven additional PFAS, setting national drinking water standards for PFOA and PFOS, and declaring PFOA and PFOS “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[29] While the EPA has already met some of the Action Plan goals such as setting guidelines for groundwater quality, [30] the agency has not taken two critical actions: setting drinking water standards and declaring PFOA and PFOS “hazardous substances.” [31]

EPA has failed to set adequate drinking water standards for PFOS and PFOA.

The EPA met its deadline to set guidelines for groundwater quality, but it has not established PFOA and PFOS drinking water regulations.[32] Critically, the EPA has not set a Maximum Contaminant Level (MCL), an enforceable standard under the Safe Drinking Water Act (SDWA), which would empower the EPA and states to address PFOA and PFAS.[33]

In December 2019, the EPA released its interim recommendation on groundwater contaminated with PFOA or PFOS.[34] It eventually finalized the goal for remediation of groundwater sources at 70 parts per trillion (ppt).[35] The EPA’s decision is consistent with its 2016 Lifetime Drinking Water Health Advisory (2016 Health Advisory) at 70 ppt for PFOA and PFOS.[36] However, if the EPA relies on the 2016 Health Advisory when setting the MCL, the standard may be insufficient to protect human health. [37]

The Agency for Toxic Substances and Disease Registry (ATSDR) created a toxicological assessment of PFOA and PFOS that suggested the 70 ppt guideline for PFOA and PFOS would be insufficient to protect human health. [38] The ATSDR assessment estimated the maximum exposure to PFOA and PFOS that would not cause any harmful effects.[39] In creating the 2016 Health Advisory and setting the 70 ppt guideline, the EPA factored in a maximum safe exposure estimate for PFOA and PFOS, which were 6.7 and 10—higher than those estimated by the ATSDR.[40] The ATSDR estimate was similar to the estimate used by New Jersey when defining its pending state-wide MCL.[41] New Jersey set its MCL at 14 ppt and 13 ppt for PFOA and PFOS, respectively.[42] The ATSDR assessment suggests that the appropriate level of PFOS and PFOA is significantly lower than the EPA is currently suggesting.[43]

Some states have set their own MCLs for PFOA and PFOS which are significantly more strict than the EPAs Health Advisory figure.[44] The MCL for PFOA and PFOS are 12 ppt and 15 ppt in New Hampshire, 10 ppt and 40 ppt in California, 10 ppt and 10 ppt in New York, 8 ppt and 16 ppt in Michigan, and 14 ppt and 13 ppt in New Jersey under a pending rule.[45] Together with the ASTDR study, the trend among states suggests that 70 ppt would be an insufficient standard for drinking water despite the 2016 Health Advisory.[46]

The EPA has failed to designate PFOA and PFOS “hazardous substances.”

Both the Action Plan and remarks by EPA Administrator Scott Pruitt at the PFAS Summit in 2018 expressed EPA’s intent to designate PFOA and PFOS as hazardous substances.[47] The EPA’s Action Plan update, released in February of 2020, reiterated that it was moving forward in the process of designating PFOA and PFAS as hazardous substances.[48]

Because PFOA and PFOS are not yet designated as hazardous substances, many affected communities have been unable to access the resources available under CERCLA, including private causes of action.[49] For example, the Air Force has refused to clean-up contamination from PFOA- and PFOS-containing firefighting foam in Georgia, New Mexico, and Michigan because PFOA and PFOS are not hazardous substances as defined under CERCLA.[50] The Navy successfully moved to dismiss a suit for medical costs in Pennsylvania by arguing that, because PFOA and PFOS were not hazardous substances, the plaintiff had no cause of action.[51]

Legislative Actions Related to PFAS

The EPA has been working towards designating PFOA and PFOS hazardous substances since the 2018 PFAS Summit.[52] In the meantime, legislators became impatient. In January of 2020, the United States House of Representatives passed the PFAS Action Act of 2019 (the PFAS Action Act).[53] If the PFAS Action Act became law in its current form, it would designate PFOA and PFOS as hazardous substances, bypassing the administrative process that the EPA has delayed for the past two years.[54] Additionally, the act would give the EPA five years to make a determination on designating the hundreds of remaining PFAS—a significant acceleration of the current regulation rate.[55] The PFAS Action Act would also require the EPA to regulate the substances under the SDWA.[56] While it has only been referred to the Senate Committee on Environment and Public Works, the current administration has expressed its opposition to the legislation.[57] The Trump Administration rejected the PFAS Action Act as undermining the administrative processes built into CERCLA and other federal regulation.[58]


The EPA has made some strides in addressing PFAS exposure in the United States. The PFOA Stewardship program successfully reduced the manufacture of PFOA, and the EPA has released groundwater standards for some PFAS levels. However, the EPA has not taken two critical steps in the Action Plan: setting MCLs for PFOS or PFOA and designating PFOS and PFOA as hazardous substances under CERCLA. Setting an MCL for PFOS and PFOA would create an enforceable standard under SDWA. Additionally, because PFOA and PFOS have not been designated hazardous substances, CERCLA and other remedial statutes remain out of reach for affected communities, and contaminated sites will continue to affect human and environmental health. PFAS can cause a variety of negative health effects including reduced immune functioning and cancer, and the EPA has not met the bold goals stated in the PFAS Action Plan.

Alisha Mehta is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Nicholas D. Ray is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.


[1]  Basic Information on PFAS, Env’t Prot. Agency, (last visited Dec. 12, 2020) [hereinafter Basic Information].

[2] Id.

[3] U.S. Env’t Prot. Agency, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan 9 (2019) [hereinafter Action Plan].

[4] Basic Information, supra note 1.

[5] Action Plan, supra note 3, at 11.

[6] Id. at 9–12.

[7] Id. at 9.

[8] Id.

[9] Danni Cui, Xuerong Li, & Natalia Quinete, Occurrence, fate, sources and toxicity of PFAS: What we know so far in Florida and major gaps, 130 TrAC Trends in Analytical Chemistry 115976 (2020).

[10] See Action Plan, supra note 3, at 1.

[11] Id.

[12] Jianjie Fu et. al., Occurrence, temporal trends, and half-lives of perfluoroalkyl acids (PFAAs) in occupational workers in China, 6 Sci. Reports 38039 (2016).

[13] Action Plan, supra note 3, at 12.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 13.

[20] Id.

[21] Id. at 10.

[22] Id. at 9, 14.

[23] Id. at 14.

[24] Alissa Cordner et. al., Guideline levels for PFOA and PFOS in drinking water: the role of scientific uncertainty, risk assessment decisions, and social factors, 29 J. of Exposure Sci. & Env’t Epidemiology 157, 158 (2019).

[25] See U.S. Ctr. Disease Control & Prevention, Fourth National Report on Human Exposure to Environmental Chemicals, Updated Tables, January 2019, Volume 1, 405–407, 413–415 (2019).

[26] Action Plan, supra note 3, at 12.

[27] Id. at 9.

[28] Aggressively Addressing PFAS at EPA, Env’t Prot. Agency
aggressively-addressing-pfas-epa (last visited Dec. 12, 2020); Multimedia: PFAS National Leadership Summit, Administrator Pruitt’s Remarks at PFAS Summit, Env’t Prot. Agency,
/epa/newsroom/multimedia-pfas-national-leadership-summit.html (last updated Mar. 2, 2020).

[29] Action Plan, supra note 3, at 3–7.

[30] U.S. Env’t Prot. Agency, EPA PFAS Action Plan: Program Update 8 (2020) [hereinafter Program Update].

[31] Pamela Goodwin et. al., INSIGHT: EPA Moves Toward Setting Drinking Water PFAS Health Standard, Bloomberg Law (Apr. 9, 2020),

[32] Program Update, supra note 30, at 9.

[33] Goodwin et. al., supra note 31.

[34] Id.

[35] Id.

[36] Id.

[37] Cordner et. al., supra note 24.

[38] Annie Snider, White House, EPA headed off chemical pollution study, Politico (May 14, 2018),

[39] Cordner et. al., supra note 24.

[40] Id.

[41] Goodwin et. al., supra note 31.

[42] Id.

[43] Cordner et. al., supra note 24.

[44] Goodwin et. al., supra note 31.

[45] Id.

[46] Cordner et. al., supra note 24.

[47] Aggressively Addressing PFAS at EPA, supra note 28.

[48] Program Update, supra note 30, at 9.

[49] Sharon Lerner, Did the White House Stop the EPA From Regulating PFAS?, The Intercept (Sept. 29 2020),

[50] Id.

[51] Id.

[52] Aggressively Addressing PFAS at EPA, supra note 28.

[53] PFAS Action Act of 2019, H.R. 535, 116th Cong. (2020).

[54] Id. at § 2(a).

[55] Id. at § 2(b).

[56] Id. at § 5.

[57] Office of Mgmt. and Budget, Statement of Administration Policy H.R. 535 – PFAS Action Act of 2019 2 (2020).

[58] Id.