The Department of Ecology (Ecology) and the Department of Health have jointly released the Draft Chemical Action Plan (CAP) for per- and polyfluoroalkyl substances (PFAS). The Draft CAP will be available for public comment through December 7, 2020. CAPs are advisory and do not themselves create new restrictions, but the recommendations in a CAP may lead to legislative or regulatory action. Interested stakeholders should take this opportunity to provide input to Ecology.

The Draft CAP builds on previous work by Ecology to recommend actions to study and address PFAS in the environment, including an Interim CAP in April 2018 and Preliminary CAP recommendations in May 2019. Through this work, Ecology has developed the following four broad categories of recommendations spanning multiple programs. 

Ensure safe drinking water

The Draft CAP recommends identifying sources of funding to mitigate PFAS in drinking water, with the long-term expectation that such costs will be reimbursed by responsible parties, if PFAS are classified as a hazardous substance under state or federal law. In addition to funding, the Draft CAP recommends technical support at PFAS contamination sites and studies to research health impacts.

Manage environmental contamination

There are currently no enforceable federal or Washington State PFAS standards. The Draft CAP recommends that Ecology act under the Model Toxics Control Act (MTCA) to develop soil and groundwater cleanup levels for PFOA and PFOS plus additional PFAS compounds, where appropriate. Ecology will also explore methods for investigation and cleanup.

Ecology currently addresses firefighting foam through the Firefighting Agents and Equipment Toxic Chemical Use law and will continue implementing that law. The CAP also includes recommendations for improved coordination with communities.

Reduce PFAS in products

Ecology’s Safer Products for Washington law requires Ecology to consider regulatory actions to reduce the use of priority chemicals in products and packaging. Carpets and carpet treatments were the first PFAS-containing product that Ecology identified for research. The Draft CAP recommends that Ecology proceed to determine by June 2022 whether safer alternatives for PFAS containing carpet products are feasible. That determination will be accompanied by proposed regulatory action to reduce exposure. 

The Draft CAP recommends that Ecology continue to identify additional sources of PFAS for a second Safer Products for Washington cycle. Products mentioned include:

• Water-resistant clothing and gear
• Nonstick cookware and kitchen supplies
• Personal care products
• Cleaning agents
• Automotive products
• Floor waxes and sealants
• Ski waxes
• Car waxes

Evaluate PFAS in wastewater treatment, landfills, and biosolids

The Draft CAP recommends evaluating PFAS in wastewater treatment plants, which has not yet been done on a large scale in Washington. Sampling is also recommended at landfills to test for PFAS in leachate, groundwater, and air emissions. Ecology will also evaluate biosolids but recognizes that data gaps exist and will focus initial efforts on developing analysis methods, rather than regulatory requirements. 

Next steps for the Draft CAP

The Draft CAP is part of a comprehensive plan to address PFAS in the state. Ecology has previously developed CAPs for PCBs, PAH, lead, PBDE, and mercury. Rulemaking is currently underway to address PFAS in drinking water, PFAS in firefighting foam is regulated by the Firefighting Agents and Equipment Act, and products are regulated bu a series of requirements including the Packages Containing Metals and Toxic Chemicals law, the Safer Products for Washington program, and the Children's Safe Products Act.

Ecology will host a series of public comment webinars on the Draft PFAS CAP in November. Comments can also be submitted by email at [email protected].

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. For more information, please contact the authors.