Editor’s Column

The narrative of PFAS regulation is compelling, highlighting the critical role of vigilant legal advocacy and regulatory oversight. The authors, Baker Donelson partner Adam Sanders and associate Ryan Freeman, recount the pivotal moment in 2001 when attorney Robert Bilott alerted the US Environmental Protection Agency (EPA) to the potential dangers of PFAS, catalyzing a series of legal and regulatory actions against major manufacturers. This episode underscores the importance of the Toxic Substances Control Act’s requirement for manufacturers to report evidence of substantial risks from toxic chemicals, a provision that, until Bilott’s intervention, had not been triggered for PFAS.

The litigation surrounding Aqueous Film Forming Foam (AFFF), as detailed in the article, marks a particularly significant evolution in the legal approach to environmental contamination. Historically, litigation in this arena focused on improper disposal practices. However, around 2016, the focus shifted toward the products themselves, with AFFF, used to fight fire, emerging as a central point of contention due to its role in contaminating water sources across the United States. The consolidation of thousands of lawsuits into multidistrict litigation (MDL) in the District Court of South Carolina only further underscores the magnitude of the issue and the complexity of addressing it through the legal system. The MDL encapsulates a broad spectrum of claims, ranging from water utilities seeking damages for remediation and testing, individuals alleging medical harm, to state attorneys general pursuing claims for resource contamination.

The EPA’s journey from issuing Provisional Health Advisories (PHAs) in 2009 to proposing the National Primary Drinking Water Regulation (NPDWR) in 2023 also illustrates the evolving understanding of PFAS’s health impacts and the challenges of setting enforceable standards. The proposed maximum contaminant levels (MCLs) for six PFAS chemicals, including the strikingly low levels for PFOA and PFOS, reflect a rigorous scientific assessment and a commitment to public health protection, despite the daunting technical and financial challenges they present for water systems and the broader water industry.

For industry, the anticipated financial implications of complying with the new PFAS NPDWR bring to the forefront the tension between the necessity of safeguarding public health and the economic burdens of environmental compliance. With estimates suggesting that water utilities may need to invest more than $50 billion over the coming decades, the issue of how these costs will be borne—by ratepayers, through federal funding, or other means—remains a critical question for policymakers, industry stakeholders, and the public. The resulting financial and regulatory implications for industry are significant and multifaceted.

As the article outlines, states across the US are introducing a variety of PFAS-related laws, creating a complex patchwork of compliance requirements that affect a broad spectrum of industries. This situation places a considerable burden on companies that manufacture and sell products on a national scale, compelling them to navigate these varied regulations effectively. For instance, California’s legislation requiring labeling of PFAS on cookware and Colorado’s ban on the sale of products containing intentionally added PFAS exemplify the diverse and stringent regulatory landscape companies must operate within. These state-level regulations, while aimed at prospective problem-solving to prevent further PFAS contamination, do not address the existing PFAS already present in the environment, products, and water systems.

And PFAS litigation adds another layer of financial and regulatory complexity. With new lawsuits being filed by state attorneys general, environmental public interest groups, and municipalities, the litigation landscape is in constant flux. This evolving scenario presents both challenges and opportunities for those in the infrastructure space in responding to regulatory compliance, risk allocation, mitigation strategies in business transactions, and active litigation.

In summary, PFAS-related laws and regulations will be substantial for industry and society writ large. Companies must adapt to a rapidly changing legal environment, balancing the need for compliance with the financial realities of doing so. The ongoing litigation and state-level regulatory efforts underscore the urgency and complexity of addressing PFAS contamination, presenting a multifaceted challenge that spans legal, financial, and operational dimensions.

We appreciate your interest in this issue, and if you have similarly timely and interesting topics for discussion in these pages, please do not hesitate to reach out to me at [email protected] to discuss.