March 22, 2021 Articles

Water Wars: Litigation over PFAS Chemicals Expected to Increase as New EPA Administrator Takes the Helm

EPA administrator Michael Regan has vowed to prioritize PFAS regulation and enforcement. Consumers, municipalities, and water utilities see blood in the water to seek redress for PFAS contamination against a host of industries that made and used fluorinated chemicals.

By David J. Marmins and Morgan E. M. Harrison

On March 10, 2021, a bipartisan Senate confirmed Michael Regan, veteran environmental regulator and Secretary of the North Carolina Department of Environmental Quality, to direct the Environmental Protection Agency (EPA). Throughout his campaign, President Biden signaled that his administration would tackle per- and polyfluoroalkyl substances (PFAS) head-on with unprecedented regulatory and enforcement action. Secretary Regan appears uniquely positioned to lead that effort, having previously sued chemical manufacturer Chemours on behalf of North Carolina over its Fayetteville plant, which Secretary Regan alleged was discharging PFAS into the Cape Fear River. That lawsuit culminated in a consent order whereby Chemours agreed to undertake numerous remediation measures, including, among other things, installing expensive equipment and infrastructure to filter and treat the groundwater and surface waters surrounding the plant.

As EPA Administrator, Regan will aggressively implement President Biden’s plan to prioritize the regulation of thousands of chemicals in the PFAS family. The Biden administration began this process even before Secretary Regan’s confirmation. On February 22, 2021, the EPA announced two actions under the Safe Drinking Water Act (SDWA) to address PFAS. First, the agency reissued the final regulatory determination to implement a National Primary Drinking Water Regulation (NPDWR) for PFOS and PFOA, two of the most common PFAS chemicals. This determination also states that the agency is considering the regulation of additional PFAS chemicals.

Second, the EPA authorized the study of an additional 29 PFAS chemicals. The next steps are likely to be designating PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, setting enforceable limits under the Safe Drinking Water Act, prioritizing substitutes through procurement, and accelerating toxicity studies and research on PFAS. As the EPA prepares to ramp up its regulatory and enforcement activity under the new administration, businesses can expect a commensurate increase in PFAS litigation in the coming years.

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