April 01, 2020

PFAS Gaining Legislative and Regulatory Traction

Patrick J. Paul

In recent years, environmental and toxic tort practitioners have begun to focus on PFAS. The term “PFAS” is the acronym for per- and polyfluoroalkyl substances, which describes a substantial group of synthetic chemicals like perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), but also includes many other chemicals, more than 4,000 in total. The most analyzed and “prominent” members of the PFAS chemical family are PFOA and PFOS. These chemicals in particular have been found to be persistent in both the environment and the human body, suggesting that they do not break down in the same manner as other chemicals and leading to their frequent description as “forever chemicals.”

PFAS have been in existence for approximately 80 years but are nevertheless considered “emerging contaminants.” They are typically utilized in the manufacture of products such as nonstick cookware, grease-resistant food packaging, stain repellents, and firefighting foams. Given the prevalence of PFAS, it is commonly believed that most Americans have been exposed to these chemicals at some point during their lifetimes. Human health impacts of PFAS exposure, if any, remain under scrutiny. Along with increased attention from Hollywood, that scrutiny is growing internationally and at the federal, state, and local levels in the United States, as concerns over PFAS in drinking water supplies escalate.

As many states have moved independently and swiftly to study and/or regulate PFAS chemicals, at the federal level, the U.S. Environmental Protection Agency (EPA) generally has been more deliberate. With respect to drinking water, in 2016 EPA established health advisory levels of exposure to PFOA and PFOS at 70 parts per trillion (ppt). However, EPA health advisories are only designed to help educate the public on contaminants that may adversely impact human health. They are unenforceable, are not regulations, and are intended only to provide technical information to state agencies and other public health officials.

EPA continued to evaluate PFAS and, on February 14, 2019, announced the development of a PFAS Action Plan designed to identify and better understand PFAS, including how best to address current PFAS contamination, means to prevent future contamination, and implementation of an effective public communication process about PFAS. EPA maintains that its PFAS Action Plan reinforces the agency’s commitment to better understanding the potential impacts associated with a wide spectrum of PFAS, and, when necessary, its further commitment to act to reduce potential risks PFAS may pose to human health and the environment. According to EPA, certain PFAS can accumulate and remain in the human body for extended periods. Further, EPA maintains that some studies of laboratory animals have demonstrated adverse health effects, including reproductive and developmental, liver and kidney, and immunological effects. In addition, studies have found that such chemicals can cause tumors in animals.

Despite the federal government’s methodical approach to PFAS review and regulation there has been some forward progress at the national level. For example, on September 23, 2019, the Centers for Disease Control and Prevention (CDC) and Agency for Toxic Substances and Disease Registry announced the start of a multi-site health study to investigate the relationship between drinking water contaminated with PFAS and health outcomes in potentially exposed communities in California, Colorado, Massachusetts, Michigan, New Jersey, New York, and Pennsylvania. However, in its early stages, the study itself became mired in a dispute between the CDC and the White House Office of Management and Budget, delaying preliminary efforts. In spite of early delays to this study, EPA nonetheless intends to issue a proposed regulatory determination for PFOA and PFAS as part of the drinking water standard-setting process outlined in the Safe Drinking Water Act by early 2020.

On November 8, 2019, EPA issued a notice of public comment period releasing the Systematic Review Protocol for five PFAS toxicity assessments under the agency’s Integrated Risk Information System (IRIS) Program. EPA’s Systematic Review Protocol is not a toxicity assessment itself but describes how the five IRIS assessments will be conducted, including specific procedures and approaches. Although the Systematic Review Protocol summarizes the methods in one document, there will be five separate IRIS assessments on each of the following: perfluorodecanoic acid, perfluorononanoic acid, perfluorohexanoic acid, perfluorohexanesulfonate, and perfluorobutanoic acid, and their related salts, all of which are members of the PFAS group.

Also, on December 4, 2019, EPA published an advanced notice of proposed rulemaking requesting information on whether to include certain PFAS chemicals to the list of those required to be reported under section 313 of the Emergency Planning and Community Right-to-Know Act and its Toxics Release Inventory program. 84 Fed. Reg. 66,369 (Dec. 4, 2019). EPA specifically requested information on whether to require certain industries and federal facilities that make or use PFAS to report when they are released and how they are managed by seeking information on approximately 600 PFAS that are made in or imported into the U.S. EPA also is evaluating whether to regulate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which could create substantial liability for future remediation for facilities like military bases and airports, that have consistently utilized such substances as part of federally mandated fire training exercises. It could also result in re-opening of previously closed CERCLA sites.

Both chambers of Congress also took action in 2019 with the PFAS Accountability Act of 2019 (H.R. 2626; S.1372) and the Clean Water Standards for PFAS Act (H.R. 3616; S. 2980). However, at year-end, a final defense authorization bill rejected a proposal that would have required EPA to designate chemicals in firefighting foam as hazardous materials under CERCLA. The House-passed version of the National Defense Authorization Act (NDAA) (H.R. 2500) included a proposal that would have required EPA to designate all PFAS as hazardous materials within one year. The Senate version of the NDAA did not include a similar provision, leaving it to House and Senate negotiators to determine whether to keep the House language in the final version of the bill. Ultimately, they did not.

Airport administrators across the nation—concerned about potential liability associated with historic fire training exercises utilizing PFAS-containing foam—urged lawmakers to reject the CERCLA language. Designating the chemicals as “hazardous substances” under CERCLA is required before EPA can order the Department of Defense or any other responsible party to remediate PFAS-contaminated soil or groundwater. President Trump vowed to veto the NDAA legislation if provisions designed to expedite the use of PFAS-free firefighting foam and to require the military to pay for clean water at farms with contamination was included in the final version.

At the state level, Minnesota led the charge settling a lawsuit against the 3M Company for $850 million in February 2018. The lawsuit alleged that the company’s production of PFAS chemicals had damaged drinking water and natural resources in the southeast Twin Cities metro area. Minnesota intends to invest more than $700 million of that settlement in drinking water and natural resource projects in the Twin Cities east metropolitan region.

Minnesota is not the only state focused on PFAS. In response to EPA’s PFAS health advisory, some states have requested federal regulatory action while others have independently initiated regulatory action. For example, New York, New Hampshire, California, New Jersey, Minnesota, Vermont, and Rhode Island all have proposed and/or approved drinking water standard regulatory levels at or below 20 ppt. Other states such as Massachusetts, Connecticut, Alaska, Colorado, Delaware, Maine, and Michigan have adopted the EPA health advisory level of 70 ppt. As the regulatory triggers change across the national footprint, the landscape for compliance by those who manufacture, distribute, or use PFAS-containing products grows increasingly complicated.

One airport-related complication faced by every state is the Federal Aviation Administration requirement that airports provide aircraft rescue and firefighting services using aqueous film forming foam (AFFF) that contain PFAS compounds. Although formulations of AFFF may differ, it is generally unquestioned that historical AFFF used at airports included PFOA and PFOS.

Some states already have begun to address PFAS-containing chemicals at their airports. In Arizona, for example, legislation effective January 1, 2020, prohibits the discharge or use for training purposes of Class B firefighting foam that contains “intentionally added” PFAS chemicals unless otherwise required by law or federal regulation. A.R.S. § 36-1696. The trajectory of proposed federal studies and regulation of PFAS combined with state regulation already in place and growing, ensure that heightened legislative, regulatory, and litigation attention on PFAS will continue in 2020.

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Patrick J. Paul

Mr. Paul is a partner in the Phoenix office of Snell & Wilmer L.L.P. and a member of the editorial board of Natural Resources & Environment. He may be reached at ppaul@swlaw.com.