It seems that every day, news articles announce previously unknown detections of per- and polyfluoroalkyl substances (PFAS) in drinking water supplies or identify new consumer products as potential sources of PFAS. PFAS, sometimes called “forever chemicals,” are a large group of human-made chemicals used to make coatings and products that resist heat, oil, stains, grease and water. These chemicals are commonly found in products such as clothing, food packaging, cookware, cosmetics, carpeting and fire-fighting foam, and have been used to make fluorinated, high-density polyethylene containers.
As the public awareness of PFAS grows, so too do the calls for legislatures and regulators to address PFAS releases into the environment. Over the last year, federal regulators have taken several steps to address PFAS in the nation’s drinking water and to curb the release of these substances into the environment; however, final enforceable regulations are yet to be issued in many areas. While federal efforts have taken a bit longer to unfold, state lawmakers have, in some cases, moved quickly to develop a patchwork of local regulations that companies must navigate. This article will summarize some of the recent actions of federal lawmakers, discuss the intersection of those efforts with local state efforts in the mid-Atlantic region and forecast what’s on the horizon for federal PFAS regulation.
Federal Regulation of Drinking Water. Pursuant to its authority under the Safe Drinking Water Act (SDWA), the U.S. Environmental Protection Agency (EPA) has announced its final Regulatory Determination to regulate two PFAS—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—in drinking water. 86 Fed. Reg. 12272 (March 3, 2021). According to that announcement, EPA has found “that PFOA and PFOS may have adverse health effects on the health of persons,” “that PFOA and PFOS occur with a frequency and at levels of public health concern at PWSs [public water systems],” and “that … regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for persons served by PWSs[.]” Under the current SDWA program, the EPA is required to issue a National Primary Drinking Water Regulation (NPDWR) for these substances within two years after announcing its Regulatory Determination. In addition, under the EPA’s fifth Unregulated Contaminant Monitoring Rule, EPA is continuing to collect data on the occurrence of at least 27 other PFAS in PWSs for potential future regulation.
Hazard Determinations. Under various federal programs, including the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA) and the Clean Air Act (CAA), EPA has the authority to determine whether certain substances are hazardous, in which case various monitoring, disposal and cleanup requirements may be imposed. As of this writing, the EPA has not made such a determination concerning PFAS under any of these programs. However, at least one bill introduced in Congress (the PFAS Action Act of 2021), if passed, would require the EPA to designate PFOA and PFOS as hazardous under CERCLA (within one year of passage) and under the CAA (within six months of passage) and to make a determination under both programs concerning all other PFAS within five years.
Point Sources. In November 2020, the EPA developed an interim strategy to address point source discharges of PFAS from industrial wastewater and stormwater discharges. David P. Ross, EPA assistant administrator, “Interim Strategy for PFAS in Federally Issued National Pollutant Discharge Elimination System Permits” (Nov. 2020). Pursuant to that strategy, federal permit writers are encouraged to include in permits “phased-in monitoring and best management practices” for PFAS when PFAS are “expected to be present” in the facility’s wastewater discharge. The strategy document offers no specifics on what qualifies as “best management practices” and provides little guidance as to when PFAS are “expected to be present” in wastewater. Permit writers are advised to look to the raw materials stored at the facility, products or byproducts of the facility operation, or available data and information from similar facilities.
Toxics. The Toxics Release Inventory (TRI) tracks the management of certain toxic chemicals that may pose a threat to human health and the environment. Facilities in different industry sectors must report annually how much of each chemical is released to the environment and/or managed through recycling, energy recovery and treatment. In June 2020, EPA issued a final rule adding 172 PFAS to the reporting list for 2020 reporting, which reports were due July 1, 2021. 85 Fed. Reg. 37354 (June 22, 2020). On June 3, 2021, EPA issued a final rule adding another three PFAS to the list for 2021 reporting, which reports are due July 1, 2022. 86 Fed. Reg. 29698 (June 3, 2021).
In addition, on June 10, 2021, the EPA proposed a new rule that would require manufacturers (including importers) of PFAS to provide information about the types, uses and amounts of PFAS manufactured or processed in any year dating back to 2011. Manufacturers would also be required to provide information on the byproducts, environmental and health effects, and disposal of the substances. As of the writing of this article, EPA intends to accept public comments on the proposed rule for 60 days following publication in the federal register via docket EPA-HQ-OPPT-2020-0549.
State Efforts. Unlike their slower-moving federal counterparts, some state regulators have already implemented statewide drinking water standards (i.e., Maximum Contaminant Levels (MCLs)) and cleanup standards and listed certain PFAS as hazardous under their respective state programs. The New Jersey Department of Environmental Protection, for example, has adopted MCLs for three PFAS chemicals (PFOA at 14 parts per trillion (ppt), PFOS at 13 ppt and perfluorononanoic acid (PFNA) at 13 ppt). See N.J. Admin. Code Section 7:10-5.2. These levels are far below the unenforceable lifetime drinking water health advisory levels established by the EPA in 2016, which are set at 70 ppt for PFOA and PFOS (individually or in combination). New York has adopted a similarly aggressive MCL of 10 ppt both PFOA and PFOS. See N.Y. Comp. Codes R. & Regs. tit. 10, Section 5-1.52.
New Jersey has also listed PFOA, PFOS, and PFNA as hazardous substances under the New Jersey Spill Compensation and Control Act, see N.J. Admin Code Section 7:1E, App. A, and has adopted Ground Water Quality Standards for each, which will serve as groundwater remediation standards at sites undergoing remediation, see N.J. Admin. Code Section 7:9C, Table 1. Likewise, New York has designated PFOA and PFOS as hazardous, N.Y. Comp. Codes R. & Regs. tit. 6, Section 597.3, and, until formal regulations are adopted, issued guidance that requires PFAS sampling to be performed any time any media is analyzed for the standard Target Analyte List/Target Compound List constituents.
Regulatory efforts in other mid-Atlantic states have proceeded more cautiously, relying on federal regulatory efforts and the continued investigation of PFAS in the environment and the impacts they may have on human health. For example, in Pennsylvania, the Department of Environmental Protection (DEP) announced in an Information Sheet that, “at this time, the DEP does not intend to deviate from the health advisories EPA has established for PFOA and PFOS.” In Delaware, the Delaware Department of Natural Resources and Environmental Control designated PFOA and PFOS as hazardous substances under the Delaware Hazardous Substance Cleanup Act, but it has yet to issue an MCL for drinking water.
Given the inconsistencies in regulation across the states, close attention needs to be paid to local regulations.
Future of Federal Regulation. Under the new administration, federal action to address PFAS is continuing to increase. As mentioned above, with the issuance of a final Regulatory Determination concerning PFOA and PFOS, the EPA is required to issue a NPDWR within two years. But the EPA has signaled a desire to act in advance of that deadline. Congress is also placing pressure on the EPA to act quickly under other programs, including CERCLA and CAA, to address PFAS releases into the environment by continuing to introduce legislation that would require fast, definitive action by the EPA.
In April of this year, the EPA established the EPA Council on PFAS. The council is charged with developing a five-year strategy to implement critical public health protections called “PFAS 2021-2025—Safeguarding America’s Waters, Air and Land.” Accordingly, we should keep an eye on council activities and expect the continued rollout of significant federal regulation addressing all aspects of PFAS manufacture, disposal and cleanup but if past is prologue, the almost daily pace of new PFAS announcements will likely make those activities hard to ignore.
Lindsay Brown is special counsel in Duane Morris’ Cherry Hill, New Jersey, office. She handles everything from environmental contamination cases and toxic tort claims to advising clients with respect to agency investigations, regulatory compliance, management of environmental liabilities, remediation of contaminated sites and the purchase and sale of property with environmental liabilities.
Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.