By Brad De Vore, Lisa Rushton and Hayes Finley

The primary goals of the Infrastructure Investment and Jobs Act (IIJA) are to create jobs, stimulate economic activity and improve the nation’s long-term competitiveness by updating and upgrading America’s infrastructure. But the landmark federal legislation, which was signed into law in November 2021, also seeks to fill regulatory and enforcement gaps identified by the Biden Admin­istration. One of the most important regulatory focuses of IIJA is addressing the category of chemicals known as PFAS. The $1.2 trillion (USD) Act includes $10 billion to assist states and disadvan­taged communities fund improvements needed to address PFAS in drinking water and wastewater discharges. Half of the funds go through state revolving funds.

PFAS have been called forever chemicals because they do not break down and can remain in the human body long-term. According to US EPA, PFAS may be linked to several health con­ditions, including infertility, immune system suppression and some cancers. Exposure to PFAS may happen environmentally, after the chemicals have been released into the air or leaked into groundwater. They also are found, however, in a wide range of consumer products—from stain-resistant carpets to non-stick frying pans to frozen pizza boxes. Since the chemicals do not decay and move readily in the environment, businesses and property owners may be liable for PFAS usage that occurred decades in the past and have migrated materially further than conventional pollutants.

To date, while many states have enacted PFAS-related guidance, PFAS largely have been unregulated under federal law and only 16 out of 50 states have adopted drinking water standards for PFAS. But US EPA under the Biden Administration has made it a point of emphasis and the funding outlay in the Infrastructure Investment and Jobs Act is an important next step in the Administration’s comprehensive approach to regulating PFAS.

With the government turning up the heat on the regulation of PFAS, both public and private water and wastewater treatment facilities will require significant investments to begin monitoring and treating this new family of contaminants. Although funds allocated in the Infrastructure Investment and Jobs Act are aimed at providing assistance to state and local water systems for testing and installation of any infrastructure improvements needed to address PFAS, the assistance is unlikely to be enough. It should come as no surprise when these entities seek to offset their costs for complying with new regulatory standards through litigation against manufacturers and users of PFAS. In addition, the increased costs of addressing PFAS will drive an increase in government and private party suits against those who released PFAS into the environment. Funds from the infrastructure law will accelerate all three of these trends.

PFAS strategic roadmap sets the stage for a new era of regulation
On October 18, 2021, less than a month before Congress approved IIJA, US EPA announced the PFAS Strategic Roadmap – a new, three-year effort to evaluate and regulate the usage of PFAS. Among the many actions proposed, the agency calls for new federal drinking water standards to be enacted by the fall of 2023. The plan would add two classes of PFAS—PFOA and PFOS—to the list of more than 90 drinking water contaminants regulated by US EPA. In addition, the agency announced its intent to push nationwide monitoring for PFAS in drinking water and use of National Pollutant Discharge Elimination System permitting to reduce PFAS discharges into water sources.

Further, Congress and US EPA have expressed a clear intent to designate certain PFAS as CERCLA (also known as Superfund) hazardous substances, “to require reporting of PFOA and PFAS releases, enhance the availability of data, and ensure agencies can recover cleanup costs.” This will impact nearly every site being remediated under superfund, in addition to those that have completed remediation but are subject to five-year reviews. The Office of Land and Emergency Management is expected to issue a proposed rule by spring of 2022 with a final rule expected summer 2023.

Going hand in hand with this effort, US EPA expressed an intent to expand and accelerate PFAS remediation and clean-up at other sites through enforcement and outreach. “What we have to do is move very strategically through the regulatory process, and we’re going to do that in an expedited timeline,” US EPA Administrator Michael Regan told NBC News. The PFAS Strategic Roadmap stops short of a ban on PFAS usage, which is currently under discussion in Europe. Five European nations—Denmark, Germany, the Netherlands, Sweden and Norway—recently proposed banning PFAS throughout the continent.

Other federal efforts to address PFAS
The 2021 PFAS Strategic Roadmap is US EPA’s third iteration of a comprehensive plan to address PFAS. It comes in the wake of several agency actions over the last few years to study and propose new rules and regulations of PFAS.

In 2019, US EPA issued its first PFAS Action Plan, which described the EPA’s first comprehensive approach to identifying and un­derstanding PFAS, then current approaches to addressing PFAS contamination, preventing future contamination, and effectively communicating with the public about PFAS. The Action Plan described the broad actions US EPA had underway to address challenges with PFAS in the environment.

Potentially one of the most significant actions taken by the agency to address PFAS in 2019 was its issuance of a final regulatory determinations for PFOA and PFOS under the Safe Drinking Water Act, which kicked off the process for US EPA to develop a national primary drinking water regulation for these two PFAS. Additionally, the agency announced its intent to fast track the evaluation of additional PFAS for future drinking water regulatory determinations if necessary information and data become available and proposed to collect new PFAS data under the fifth Unregulated Contaminant Monitoring Rule (UCMR 5).

In 2020, US EPA issued a PFAS Action Plan Program Update. A primary focus in 2020 was to develop reliable and consistent laboratory methods for detecting and identifying PFAS in drinking water. The agency also committed to following through with its process under the Safe Drinking Water Act for evaluating drinking water standards for PFOA and PFOS. In November 2020, US EPA issued a memo detailing an interim National Pollutant Discharge Elimination (NPDES) permitting strategy for PFAS. The agency also released information on progress in developing new analytical methods to test for PFAS compounds in wastewater and other environmental media.

In January 2021, US EPA announced final determinations to regulate PFOS and PFOA in drinking water and a proposal to require monitoring for 29 PFAS in drinking water under the fifth Unregulated Contaminant Monitoring Rule. And, in January 2021, the agency finalized Effluent Guidelines Program Plan 14 and announced an Advanced Notice of Proposed Rulemaking to collect data and information regarding PFAS manufacturers that will help inform whether these industrial sources warrant regulation through national Effluent Limitation Guidelines to address PFAS discharges.

IIJA makes PFAS an environmental regulatory priority
All of these actions have influenced federal lawmakers’ decision to address PFAS through IIJA . The $10 billion (USD) earmarked for PFAS treatment and remediation under the Act is the single largest allocation of PFAS funds in US history. Many more billions will be needed, however, to meet the goals outlined in US EPA’s PFAS Strategic Roadmap.

The Act contains three distinct grant programs, all aimed at addressing PFAS:

1.  $5 billion will be provided through the Safe Water Drinking Act to help low-income and rural communities purchase drinking water filtration systems.
2   $4 billion will be provided to water utilities for PFAS removal via the Drinking Water State Revolving Fund.
3.  $1 billion will be provided to help address PFAS in wastewater discharge, with a focus on serving rural and indigenous communities.

Following the rollout of US EPA’s Roadmap and goal to establish maximum contaminant levels (MCLs) for PFOA and PFOS by fall of 2022, the agency submitted research and sought feedback from the Science Advisory Board in December 2021. That body conducted four days of hearings on the proposal and raised many concerns with the agency’s literature and proposed findings While US EPA continues to move forward with efforts to prom­ulgate a National Drinking Water Standard for PFOA and PFOS, the agency must address these concerns before any regulatory action may move forward. Amy issue or question left unaddressed will be a basis for a regulatory challenge to any standard proposed by US EPA.

In the interim, municipalities and utility providers need money for the operation and ongoing maintenance of PFAS treatment and clean-up programs—money that is not provided in any current federal program. Communities are increasingly identifying potential sources of contaminated drinking water and seeking resources to fund their investigations. IIJA (along with other PFAS regulatory efforts) will materially kick-start these investigations and likely trigger a waterfall of subsequent litigation.

References

  1. US EPA. PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024. https://www.epa.gov/pfas/pfas-strategic-roadmap-epas-commitments-action-2021-2024
  2. Caldwell, Leigh Ann; Thorp, Frank V. “Toxic ‘forever chemicals’ are everywhere. The EPA has a new plan to crack down.” NBC News,. https://www.nbcnews.com/politics/politics-news/can-epa-get-rid-toxic-forever-chemicals-n1281707
  3. Trager, Rebecca. “Efforts underway in Europe to ban PFAS compounds.” Chemistry World. https://www.chemistryworld.com/news/efforts-underway-in-europe-to-ban-pfas-compounds/4014038.article
  4. Gardella, John. “PFAS SAB Hearings Raise Questions Over EPA’s Science.” National Law Review. https://www.natlaw­review.com/article/pfas-sab-hearings-raise-questions-over-epa-s-scienc

About the authors
Brad De Vore, partner at Womble Bond Dickinson, is the Team Leader of the firm’s Environmental and Toxic Tort practice and serves as the Energy and Natural Resources Metals & Mining Subsector Head. He has spent over 30 years developing a leading practice that includes extensive toxic tort and environmental litigation experience for domestic and multinational clients in sectors such as energy, chemicals, electronics, construction and real estate development. De Vore can be reached at brad.devore@wbd-us.com.

Lisa Rushton, partner at Womble Bond Dickinson, serves as Co-head of the firm’s Energy and Natural Resources Sector and head of the firm’s Renewable Energy Subsector. She has extensive knowledge of air and water pollution control laws, solid and hazardous waste management and cleanup, toxic substance control laws and the development of brownfield properties. Rushton can be reached via email at lisa.rushton@wbd-us.com.

Hayes Finley, associate at Womble Bond Dickinson, focuses her practice on issues surrounding environmental, land use, energy and administrative law. She has represented developers and private businesses in environmental remediation and clean-up activities, negotiated resolution of environmental enforcement actions, represented local governments and private citizens in water supply planning and surface water disputes, and obtained local land use and zoning approvals for a wide range of projects. Finley can be reached at hayes.finley@wbd-us.com.

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