Polyfluoroalkyl substances (PFAS)- used in non-stick applications such as cookware, paper packaging, and textiles, as well as in certain types of firefighting foam- have become the new asbestos, and PFAS litigation has been filed in multiple states. Both the federal government and state governments have been moving forward with significant new regulation of the PFAS compounds. Summarized below are actions taken at both the federal and state levels to regulate PFAS substances.
Federal Regulation of PFOS and PFOA
- Interim Cleanup Recommendations for PFOS and PFOA– On December 19, 2019, U.S. EPA established preliminary cleanup standards for CERCLA and RCRA cleanup sites; however, as the guidance documents makes clear in the first footnote on the memorandum, it is “not considered binding on any party.”
- Safe Drinking Water Act (SWDA)- On February 20, 2020, U.S. EPA issued a preliminary regulatory determination under the SWDA for perfluorooctane sulfonate (PFOS) and perfluoroctanoic acid (PFOA). EPA has proposed a standard of 70 parts per trillion as the maximum amount allowable in drinking water. This is the first step in a lengthy regulatory process to establish “maximum contaminant level” (MCL) under National Primary Drinking Water Regulation. MCLs have two major regulatory impacts: 1) drinking water plants must treat finished drinking water below the MCLs ; and 2) MCLs become the default cleanup standard for groundwater contamination at most cleanup sites. While EPA is taking this initial step, it could take four or five years before the MCLs are finalized between public comments periods and scientific justification of the new MCLs.
- Certain PFAS Compounds Listed as Hazardous Substances under CERLCA– According to the National Law Review, EPA had committed to regulated PFOA, PFOS, and a PFOA-replacement chemical known as GenX as hazardous substances under CERCLA by the end of 2019; however, EPA has not yet issued a proposed rulemaking. Even if designated as hazardous substances, U.S. EPA would have to establish appropriate cleanup levels. If EPA waits for finalization of MCL standards it could be years before cleanup standards are established; however, as discussed below, some states have moved forward in establishing their own MCLs. In those states, once the PFASs are designated hazardous substances, state cleanup standards must be followed in CERCLA cleanups in those states. In those states that adopt state specific MCLs, it will unlock CERCLA’s broad reach to recovery cleanup costs from companies that generated, transport or disposed of PFAS compounds.
- Petition to Regulate as Hazardous Waste- On January 15, 2020, environmental groups filed a petition asking U.S. EPA to regulate certain PFAS compounds as a hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). If PFAS compounds were regulated as hazardous waste it would have huge implications for the generation, transport and disposal of PFAS waste materials.
- Added to List of Reportable Chemicals- On December 4, 2019, EPA published a proposed rule for public comment adding certain PFAS compounds to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). One component of the proposed rule is whether the reporting threshold should be lowered from the typical thresholds of 25,000 lbs or 10,000 lbs depending on how the chemicals are used. On December 20, 2019, the National Defense Authorization Act added certain PFAS chemicals to the list of reportable chemicals pursuant to the Toxic Release Inventory (TRI) set forth in EPCRA Section 313. Businesses should be tracking releases of these chemicals this year and will be required to report by July 1, 2021.
- Import Regulation under TSCA– EPA is committed to using its authority under TSCA to evaluate new uses of PFAS. On February 20, 2020, U.S. EPA issued a proposed supplemental significant new use rule (“SNUR”) under its TSCA authority. A SNUR would require anyone seeking to import one of the listed PFAS compounds to notify the EPA in advance. EPA would then evaluate the risks posed by the proposed use. EPA also recently developed a proposal to require notification and review under TSCA before PFAS chemicals are imported or manufactured in the U.S.
- National Defense Authorization Act- On December 20, 2019, the National Defense Authorization Act (NDAA) was signed into law. NDAA automatically added 172 PFAS compounds to the EPA’s Toxic Release Inventory (TRI) which requires companies to report management of certain toxic chemicals. As a result of NDAA, facilities that manufacture, process, or otherwise use PFAS must report releases of these chemicals by July 1, 2021. NDAA also requires all public water systems that serve 10,000 persons to monitor PFAS under the Safe Drinking Water Act. While proposed, NDAA did not designate PFAS compounds as hazardous substances under CERCLA.
Ohio Action on Regulation of PFOS and PFOA
On December 2, 2019, Ohio EPA and the Ohio Department of Health issued the PFAS Action Plan for Drinking Water. The plan includes the following steps:
- The Ohio Plan calls for 1,500 public water systems to be sampled for PFAS compounds by the end of 2020.
- While U.S. EPA moves forward with the slow process of establishing MCLs for PFAS compounds, Ohio EPA is using U.S. EPA’s non-binding Health Advisory Level (HAL) of 70 parts per trillion (ppt) for PFOS and PFOA. Ohio EPA also will use action levels for four other PFAS compounds- GenX compound (>700 ppt), PFBS (>140,000 ppt), PFHxS (>140 ppt) and PFNA (>21 ppt).
- Ohio EPA and Ohio Department of Health will issue response protocols for public and private water systems that show exceedances of the HALs.
- Ohio EPA will provide information on loans and technical assistance to public water systems on treatment for PFASs compounds.
As discussed below, other states have moved forward with the establishment of MCLs without waiting for U.S. EPA to finalize national drinking water standards. As more states adopt standards, pressure will increase on Ohio to do the same, especially once it collects data showing contamination in public drinking water supplies above HALs.
Other States Adopt Drinking Water Standards
Many states have decided not to wait for EPA to move through its long rulemaking process to establish a national drinking water standard. The following states have moved forward with adopted regulations establishing MCLs for drinking water in their states:
- New Jersey proposed an MCL of 14 ppt for PFOA and 13 ppt for PFOS in drinking water
- New Hampshire established an MCL of 12 ppt for PFOA and 15 ppt for PFOS in drinking water
- New York proposed an MCL of 10 ppt for PFOA and PFOS in drinking water
- Minnesota has established non-binding health advisories of 15 ppt for PFOS and 35 PFOA in drinking water
- California established response levels of 10 ppt for PFOAs and 40 ppt of PFOS in drinking water
- North Carolina proposed 70 ppt for PFOS and PFOAs in groundwater; 140 ng/l for Gen X compounds as a health advisory
- Illinois proposed 14 ppt for PFOS and 20 ppt for PFOA in groundwater
- Massachusetts proposed an MCL for drinking water at 20 ppt for six PFAS
- Wisconsin has proposed a groundwater enforcement standard of 20 ppt for PFOA and PFOS
- Michigan has proposed MCLs for seven PFAS compounds, including 8 ppt for PFOA and 16 ppt for PFOS
- Colorado adopted the U.S. EPA health advisory standard of 70 ppt for PFOA and PFOS