United States: PFAS—Growing Regulation And Liabilities For The Regulated Community

Per- and polyfluoroalkyl substances (PFAS) are a group of chemicals that have received a lot of regulatory, scientific and legal attention in recent years, and all indications are that this is just the beginning. To be sure, the lack of federal guidance and the patchwork of state regulations addressing these chemicals is problematic for the regulated community. But other unique aspects of PFAS regulation further complicate the picture. Of particular concern are the current and proposed advisory and regulatory levels for two of these chemicals—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—which are orders of magnitude below the concentration levels of most other chemicals.

Further complications arise from the fact that PFAS are not just one chemical but a group of hundreds of man-made chemicals that were widely used in manufacturing and consumer products. Moreover, some studies indicate that the chemicals may be both mobile and yet persistent when released into the environment. The combination of these factors creates significant challenges to effective enforcement and equitable allocation of cleanup responsibilities. Accordingly, it is important for the entire regulated community, whether involved with PFAS or not, to be aware of the varied and changing regulatory and legal developments.

Background

PFAS are a group of synthetic chemicals that were, and in some cases still are, used to make fluoropolymer coatings and products that resist heat, oil, stains, grease and water, such as water-repellent clothing, furniture, carpet, adhesives, paint and varnish, food packaging and nonstick cooking surfaces, see U.S. Environmental Protection Agency, "EPA's Per- and Polyfluoroalkyl Substances (PFAS) Action Plan" 11 (Feb. 2019). Under the Toxic Substances Control Act (TSCA), the U.S. Environmental Protection Agency (EPA) has inventoried over 1,000 PFAS, of which approximately half are known to be commercially active within the last decade. Some of the better-known and more studied PFAS include PFOA, PFOS, perfluorononanoic acid (PFNA) and, more recently, GenX chemicals.

Some fate and transport studies indicate that PFAS are both mobile and persistent when released into the environment, while some toxicological studies claim potential adverse human health effects at low concentrations. See Nikki Delude Roy, "Regulatory Challenges Posed by Emerging Contaminants," ABA Water Resources Committee Newsl., March 2018, at 7, 8 (2018). These claims, combined with the widespread use of the chemicals over the last several decades, have led to increased attention to PFAS in recent years, including increased regulations related to drinking water and groundwater remediation.

Drinking Water Regulation

In 2016, the EPA issued a revised, nonenforceable, lifetime health advisory for PFOA and PFOS of 70 parts per trillion (ppt), see EPA, Office of Water, 822-R-16-004, "Drinking Water Health Advisory for Perfluorooctane Sulfonate (PFOS)" (May 2016); USEPA, Office of Water, 822-R-16-005, "Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA)" (May 2016). These are among the lowest concentration advisories ever issued by the EPA. Health advisories for other compounds, such as benzene, trichloroethane and atrazine, are regulated in parts per million or parts per billion—not ppt. EPA, Office of Water, EPA 822-F-18-001, "2018 Edition of Drinking Water Standards and Health Advisories" (Mar. 2018).

Several states have adopted the EPA's health advisories for PFOA and PFOS—in some cases as advisories and in other cases as enforceable standards. Other states are taking an even more conservative approach, such as New Jersey, which adopted an enforceable maximum contaminant level (MCL) in drinking water of 13 ppt for PFNA in September 2018, and more recently proposed MCLs of 14 ppt for PFOA and 13 ppt for PFOS. See 51 N.J.R. 437(a) (Apr. 1, 2019). In December 2018, the New York State Drinking Water Quality Council recommended an MCL of 10 ppt for both PFOA and PFOS. see New York Department of Health, "Drinking Water Quality Council Recommends Nation's Most Protective Maximum Contaminant Levels for Three Unregulated Contaminants in Drinking Water."  Some commentators have opined that "such low concentrations appear to be very conservative, considering that EPA's health advisory is already reportedly five times lower than the level determined not to cause health effects in sensitive populations, which is reportedly ten times lower than the level determined not to cause health effects in average adults."

With a lack of consistent, enforceable drinking water standards, water providers who discover PFAS above advisory limits are left with difficult questions, such as whether treatment is necessary (or advisable), potential risk if the system is not treated, what treatment is effective and what are the costs associated with such treatment.

Site Remediation

Uncertainty also lies in the remediation of PFAS that have been released into the environment. EPA has not listed any PFAS as "hazardous" under the relevant regulatory schemes, such as the Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or Clean Air Act. The lack of listing, however, does not mean the USEPA is without enforcement power. Currently, under CERCLA, PFAS are considered pollutants or contaminants, which gives the EPA authority to act where the agency determines there may be an imminent and substantial endangerment to public health or welfare. Such determinations, however, are made on a site-by-site basis, which provides little certainty and can lead to protracted negotiations and legal battles between regulators and the regulated community.

The EPA indicates that it initiated the regulatory process for listing PFOA and PFOS as CERCLA hazardous substances in 2018. If the EPA determines that PFOA and PFOS should be listed as hazardous substances, many states will likely follow suit, as state statutes often define hazardous substances with reference to CERCLA and other federal statutes.

Some states, however, have not waited for the EPA to act. New York has regulated PFOA and PFOS as hazardous substances since 2016. In 2018, the New Jersey Department of Environmental Protection (NJDEP) adopted a groundwater cleanup standard for PFNA of 10 ppt and subsequently amended the standard to 13 ppt. Then, in April 2019, the NJDEP proposed the addition of PFOA and PFOS to the state's hazardous substance list and proposed groundwater cleanup standards of 14 ppt and 13 ppt, respectively. 51 N.J.R. 437(a).

Importantly, in states like New Jersey, even parties with no connection to PFAS may find themselves ordered to investigate these chemicals. Current NJDEP guidance appears to require all "persons responsible for conducting remediation" at "all site remediation sites" to evaluate whether PFOA or PFOS may have been manufactured, used, handled, stored, disposed or discharged at the site, and if appropriate, perform an investigation of these chemicals. See, Duane Morris Alert, " New Jersey's New PFOA/PFOS Environmental Guidance Raises Authority Questions." Thus, even those with no connection to PFAS may be required to evaluate or investigate such contamination.

In addition, those responsible parties performing post-closure monitoring at non-PFAS sites may find that they are now required to sample for certain PFAS as part of their post-closure monitoring activities. Low level detections of PFAS could result in the reopening of a previously closed site—with a non-PFAS party performing the additional remedial measures or chasing other responsible parties. Responsible parties should be prepared to discuss with regulators the remedial measures that are in place at their sites and how these measures adequately address PFAS contamination.

Legal Action

As regulation of PFAS continues to grow, the potential for litigation over cleanup costs, natural resource damages, product liability, personal injury and property damage continues to grow as well. Class action lawsuits have been filed across the country including in New York, Pennsylvania, Ohio, Michigan and Colorado. Water utilities in New York, New Jersey, Massachusetts and elsewhere across the country have filed lawsuits seeking damages. Recently, New Jersey, New Hampshire and Vermont have all filed natural resource damage claims related to PFAS contamination against various chemical companies. NJDEP, "Affirming National Leadership Role, New Jersey Proposes Stringent Drinking Water Standards for PFOA and PFOS," News Release (April 1, 2019); Dave Solomon, "NH sues 3M, DuPont, 6 other companies over PFAS contamination," New Hampshire Union Leader (May 29, 2019); Associated Press, "Vermont Sues DuPont, 3M, Others Over Chemical Pollutants," U.S. News & World Report (June 27, 2019).

Among the more unique claims, farmers in New Mexico are claiming business damages due to PFAS impact. According to the farmers, PFAS contamination from the Cannon Air Force Base has impacted their crops and the milk of their dairy cows, causing significant losses. See Rich Peters, " PFAS Lawsuits Continue; Two in New Mexico Allege Harm to Cows," Legal News Line,  (June 10, 2019); Brianna J. Schroeder, "Dairy Farm PFAS Contamination," Schroeder Ag Law Blog, (March 6, 2019).

While the focus of most litigation has been on the major PFAS manufacturers, as cleanup standards continue to develop, we can expect to see an increase in contribution suits among a growing list of responsible parties within the regulated community.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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