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November 01, 2021 Articles

Water Wars Update: New EPA Administrator Moving Fast on PFAS

The agency announced an aggressive plan to pass regulations, likely leading to not only more litigation but also more government enforcement actions.

By David J. Marmins and Morgan E. M. Harrison
“Forever chemicals” became ubiquitous due to their presence in various common household products.

“Forever chemicals” became ubiquitous due to their presence in various common household products.

mladenbalinovac via GettyImages

While the Biden administration may be struggling to implement some of its higher-profile policies, it is making good on its promise to regulate per- and polyfluoroalkyl substances (PFAS), synthetic chemicals that resist soil, water, heat, oil, and grease. Meanwhile, PFAS-related litigation and high-dollar settlements are making news every week. (Please see our March 2021 article for more background on PFAS-related litigation.)

PFAS, dubbed “forever chemicals,” became ubiquitous due to their presence in water-resistant clothing, shoes, stain-resistant carpets, food packaging, household cleaners, nonstick cookware, and firefighting foam since 3M and Dupont chemists created them in the 1930s and 1940s. They have also become infamous because of their persistence in the environment, which is attributed to the strong fluorine-carbon bonds in their chemical makeup. The chemical manufacturers and industrial users of PFAS chemicals acknowledge their failure to degrade in the environment but contest their toxicity. To this day, PFAS remain unregulated under federal law. That is changing quickly under the leadership of the new U.S. Environmental Protection Agency (EPA) Administrator, Michael Regan. In October, the EPA announced an aggressive plan to pass PFAS regulations, likely leading to not only more litigation but also more government enforcement actions.

EPA Strategic Roadmap

On October 18, 2021, the EPA Council on PFAS released its comprehensive Strategic Roadmap to confront PFAS contamination nationwide. The plan focuses on restricting the future release of PFAS chemicals, accelerating the cleanup of PFAS contamination, and further research on the thousands of chemicals in the PFAS family. It commits the EPA to setting enforceable drinking water limits for PFAS and a hazardous substance designation under CERCLA by 2023.

“For far too long, families across America—especially those in underserved communities—have suffered from PFAS in their water, their air, or in the land their children play on,” said Regan. “This comprehensive, national PFAS strategy will deliver protections to people who are hurting, by advancing bold and concrete actions that address the full lifecycle of these chemicals. Let there be no doubt that EPA is listening, we have your back, and we are laser focused on protecting people from pollution and holding polluters accountable.”

The EPA also announced a new national testing strategy that requires PFAS manufacturers to provide the agency with toxicity data and information on categories of PFAS chemicals. The agency expects to release its initial set of test orders for PFAS in a matter of months. The roadmap also promises a final toxicity assessment for GenX PFAS chemicals, the shorter chain chemicals marketed as a safe alternative to the longer chain PFOA and PFOS products that manufacturers have ceased making over the past several years.

Toxicity Assessment of GenX PFAS Chemicals

The EPA wasted no time in showing its intent to timely implement the roadmap. On October 25, 2021, the agency released a final human health toxicity assessment for GenX chemicals in drinking water. The results signaled a forthcoming national drinking water health advisory for GenX chemicals, which the EPA committed to publishing in Spring 2022. Relying on animal studies, the assessment concludes that GenX PFAS potentially could harm the human liver, kidneys, and immune system. The study also associated GenX PFAS in drinking water with liver and pancreatic cancer, as well as harm to fetal health.

Most foreboding for industrial users, the EPA assessment identified lifetime limits for ingestion of GenX chemicals for avoiding adverse health impacts at levels even lower than the prior toxicity assessment of long-chain PFAS. As the EPA mentions in the report, it is reassessing the PFOA and PFOS toxicity assessments, and far lower thresholds for those PFAS chemicals are surely on their way.

Therefore, while liability for prior use of long-chain PFAS chemicals is at the front of the minds of many historic industrial PFAS manufacturers and users, this GenX assessment presents a greater long-term problem. Once the EPA sets an enforceable drinking water standard for GenX, it will have the power to pursue companies for remediation costs, which, as we are learning through recent settlements, can range well into the tens of millions of dollars. Even more troubling, without GenX chemicals to substitute for longer chain PFAS, many industrial, manufacturing and consumer products markets will be left searching for new solutions that have been hard to come by, despite significant investment by the stakeholders.

Still, it is important to keep in mind the roadmap and GenX Assessment are not binding regulations on the use of PFAS. To date, EPA has only issued non-binding advisory limits, along with a patchwork of regulations issued by various state environmental agencies.

Classifying PFAS Chemicals as RCRA Hazardous Constituents

On October 26, 2021, the EPA responded to New Mexico Governor Lujan Grisham’s petition that PFAS be identified as hazardous waste under the Resource Conservation and Recovery Act (RCRA) with two rulemakings. First, the EPA will initiate the process to add certain PFAS chemicals as RCRA Hazardous Constituents under Appendix VIII of the Act (the comprehensive list of hazardous constituents regulated by the Act). Adding these chemicals as RCRA Hazardous Constituents means they will be subject to investigation and cleanup under RCRA’s corrective action requirements. This regulatory action will provide EPA with an additional means to require corrective action targeted at PFAS-contaminated sites in addition to the CERCLA authority discussed above.

PFAS Litigation

For years, lawyers have been ahead of the government in policing the use of PFAS, and that continues. While EPA is now taking meaningful steps toward regulating PFAS, PFAS-related lawsuits have been going on for decades. One recent filing and a settlement are noteworthy.

Massachusetts Town Sues Chemical Manufacturers

More municipalities are bringing claims against PFAS manufacturers to cover the cost of remediation and filtration of PFAS from rivers and groundwater that provide their drinking water. The Town of Easton, Massachusetts recently sued several chemical companies, including 3M, Chemguard, Dupont, and Tyco. Easton alleges PFAS from the operations of each company causes contamination of its drinking water.

Showing that municipalities are knowledgeable about PFAS in their water and are prepared to go to great lengths to build these cases, Easton has been proactively testing for PFAS since 2019, and test results for its seven wells showed measures of PFAS of up to 51.5 parts per trillion (ppt). The current Massachusetts Department of Environmental Protection PFAS drinking water standards set maximum contaminant level of 20 ppt in drinking water. Additionally, Easton hired an engineering firm to assess the contamination and determine the best water treatment plant filtration system to remove the contaminants from the public water supply at the source. Construction of new treatment plants at the three well sources exceeding the maximum contaminant level are expected to be over $9 million.

3M Settles Tennessee PFAS Suits

On October 19, 2021, the day after the EPA released its PFAS Roadmap, 3M agreed to pay over $98 million to settle claims that it contaminated the Tennessee River with PFAS chemicals. The payment will resolve two cases—one by an environmental group, Tennessee Riverkeeper, and a separate class action by residents of Alabama's Morgan County. 3M also entered into a private settlement with Morgan County, the city of Decatur (where 3M's facility is based) and Decatur's utility provider.


As expected, the Biden administration and the EPA’s new leadership are taking aggressive steps toward increased regulation of PFAS chemicals. This not only buttresses claims regarding the dangers of historic use of PFOA and PFOS but also sets the table for disputes over the continuing use of GenX PFAS, shorter-chain fluorinated chemicals intended to replace their long-chain predecessors. Although the science on these GenX PFAS remains uncertain, one thing can be sure: PFAS, GenX or not, will be the subject of litigation for years to come.

David J. Marmins is a partner and Morgan E. M. Harrison is an associate with Arnall Golden Gregory LLP in Atlanta, Georgia.

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