In March 2023, the Administration took another major step in its strategic roadmap to combat and hold PFAS users accountable for PFAS contamination by proposing new rules establishing the first-ever national drinking water standard for PFAS. This is on the heels of the EPA proposing a new rule designating certain PFAS as hazardous substances under CERCLA in September 2022. Both proposed rules are expected to take final form this year.
These new rules are just the latest additions to the rapidly developing municipal, state, and federal regulations that may place PFAS users across all industries out of regulatory compliance, creating a risk for regulatory actions or environmental lawsuits. To minimize exposure, PFAS users need to proactively monitor and develop compliance strategies to address the rapidly developing patchwork of regulatory schemes, particularly in jurisdictions within their streams of commerce.
What are PFAS?
Per- and polyfluoroalkyl substances (PFAS) are a group of about 4,000 synthetic chemicals with a carbon-fluorine bond structure that prevents them from breaking down over time. Since the 1940s, PFAS have been widely used in industry and consumer products, including non-stick cookware, water-repellent clothing, carpets, cosmetics, and products that are grease, water, or oil-resistant. More broadly, the aerospace, automotive, construction, and electronics industries are heavy users of PFAS. PFAS may enter the environment as they are manufactured, used, or after a product with PFAS is disposed of. Today, because PFAS do not break down, they are widely present in soil, water, air, people, and animals.
Because of the potential health and environmental hazards associated with PFAS, they are the focus of rapidly evolving municipal, state, and federal regulations. These regulations are expected to create liability for not only the traditional PFAS users, but also a broad scope of new alleged users across many industries not historically associated with PFAS contamination liability.
Recent Federal Developments
There has been a heavy focus on federal regulation of PFAS in the past two years, including the EPA’s announcement of a PFAS Strategic Roadmap, interim guidance on PFAS in drinking water, and, most recently, two proposed rules. These federal regulations are coupled with approximately $9 billion in funding from the Bipartisan Infrastructure Law that will be available to states and territories to implement PFAS clean-up.
- 2021 PFAS Strategic Roadmap: The EPA’s 2021 PFAS Strategic Roadmap outlined a focus on researching, restricting, and remediating PFAS. The roadmap specifically seeks “to hold polluters accountable for the contamination they cause and ensure disadvantaged communities equitably benefit from solutions.” Specifically, from 2021 to 2024, the EPA plans to: (1) invest in research, development, and innovation to increase understanding of PFAS exposures and toxicities, human health and ecological effects, and effective interventions that incorporate the best available science; (2) pursue a comprehensive approach to proactively prevent PFAS from entering air, land, and water at levels that can adversely impact human health and the environment; and (3) broaden and accelerate the cleanup of PFAS contamination to protect human health and ecological systems.
- 2022 Proposed PFOA/PFOS Rule: The EPA’s September 2022 proposed rule would designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Designation as a hazardous substance enables agencies to respond to PFOA and PFOS contamination without a finding that the contamination poses an imminent and substantial danger to public health, welfare, or the environment. Further, the proposed rule would require reporting once PFOA and PFOS levels reach a certain threshold, increased information disclosure to authorities, polluters to pay clean-up costs in some instances, and federal entities transferring or selling property to provide notice about PFOA and PFOS on the property and covenant to clean up resulting contamination as required under CERCLA. A final rule is anticipated this summer.
- 2023 Proposed Drink Water Standard: On March 14, 2023, the EPA published a proposed rule that would establish legally enforceable Maximum Contaminant Levels and non-enforceable Maximum Contaminant Level Goals for six PFAS found in drinking water. Maximum Contaminant Level Goals are the levels at which there are no known negative health effects. More specifically, the rule sets the MCL for PFOA and PFOS at 4 parts per trillion (PPT). For context, the EPA and GAO have cited one PPT as being equivalent to one drop of water in 20 Olympic-sized swimming pools (linked here from EPA and GAO); thus, 4 PPT would be equivalent to one drop of water in 5 Olympic-sized swimming pools. The rule would also require public water systems to monitor these specific PFAS levels, notify the public of PFAS levels, and reduce PFAS levels if they exceed the Maximum Contaminant Levels. A final rule is anticipated by the end of 2023.
The Far Reach of Local Regulations
Local regulation of PFAS are prolific, with states and municipalities creating a patchwork of required bans, reporting, and monitoring across industries. A substantial risk associated with local ordinances, particularly in municipalities, involves the two extremes: one jurisdiction might provide a structured process which may be complied with (e.g., clear safe harbors) but involves standards or processes that are too burdensome or expensive, while another jurisdiction might provide vague standards or processes that fail to provide clear compliance standards and guidance which leave businesses subject to unascertainable exposure.
Currently, there are about 105 policies in 23 states and another 184 adopted polices in 32 states. This includes 13 states with enacted or pending enforceable standards or Maximum Contaminant Levels for PFAS in drinking water, and an additional 12 states with either guidance levels, notification levels, or health advisories.
States are also regulating PFAS in areas with more far-reaching economic impacts such as food packaging, textiles, and cosmetics. Some non-exclusive examples:
- Maine – Sales Bans and Notice Requirements Effective January 2023: Maine enacted a statute that bans the sale of new carpets or fabric treatments with intentionally added PFAS as of January 2023, and manufacturers selling products in the state must notify state authorities if their products contain PFAS. Effective January 1, 2030, the sale or distribution of products with intentionally added PFAS is banned in the state.
- California – Sales Bans Effective 2023: Starting this year, California prohibits the sale of any food packaging and juvenile products containing PFAS. By 2025 the state will also ban the sale of textiles and cosmetics containing PFAS.
- New York – Sales Bans Effective December 2023: New York will also ban the sale of apparel with intentionally added PFAS beginning in December 2023.
- Other States – Bans Effective 2023 – 2027: Other state regulations that will take effect at various points between 2023 and 2027 include bans on food packaging with PFAS in Washington, Vermont, Maryland, Minnesota, Connecticut, Massachusetts and Hawaii; bans on carpets, rugs, textiles, and fabric treatments with intentionally added PFAS in Vermont, Colorado, Maryland, and Washington; and bans on cosmetic products with intentionally added PFAS in California, Colorado, Illinois, and Maryland. Some statutes also include labeling or consumer warning requirements.
- Other States – Broader Implications: Other statutes have much broader implications. For example, New York, Illinois, and Massachusetts have revised their procurement standards to limit the purchase of products or structures associated with PFAS. Numerous states also appropriated money for soil remediation, and soil remediation requirements could affect any business that introduces PFAS into the environment.
Municipal ordinances related to PFAS continue to evolve. These are often the ordinances that are more difficult to monitor and track, as they develop out of a much larger source of governmental bodies. California municipalities appear the most active with at least 11 regulating or banning PFAS in disposable food ware. Cedar Rapids, Iowa banned the discharge of any water or waste into its sewer system that contains the maximum allowable concentration of PFAS. Jackson and St. Clair County, Michigan both have a ban on any discharge of PFAS in excess of a certain amount. Westminster and Boulder, Colorado also require that the aqueous film forming foam used at oil and gas operations in the event of leaks shall not contain PFAS. These regulations continue to develop and the EPA’s proposed rules have stoked a flurry of commentary on municipal water service websites, suggesting more regulations at the local level are pending.
The multitude of present and future municipal, state, and federal ordinances create a wide range of potential compliance issues that vary by jurisdiction. We recommend that businesses:
- track PFAS regulations in key jurisdictions relevant to their stream of commerce;
- determine whether compliance is acceptable or warrants clarity or changes;
- if acceptable, recommend and implement compliance and risk mitigation processes;
- if not acceptable, consider engaging the rule makers to seek rule clarity and changes; and
- if not successful, consider and prepare for pre- and post-enforcement judicial relief.
The objective should be to proactively develop a compliance protocol that is both the least-burdensome and most cost-effective. In the event that statutes or regulations are unconstitutionally vague or present other enforcement issues, businesses should be prepared to negotiate with regulators for statutory clarifications or amendments at the outset, or prepare to engage in pre- and post-enforcement litigation.