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Developments in Regulation of PFAS

Per- and poly-fluoroalkyl substances (PFAS) continue to emerge, so to speak, as a focus of regulatory attention on many levels: health, environmental remediation, and manufacturing. Below, we discuss some of the more recent developments affecting this ubiquitous class of chemicals.

Nicknamed “forever chemicals,” PFAS are a family of chemical compounds with a wide range of commercial applications. The unique properties of the chemicals allow them to withstand extreme temperatures; resist degradation, stains, and grease; and adopt nonstick qualities. PFAS are commonly found in lubricants, water-repellent clothing, and non-stick kitchenware. Commercial production of PFAS began in the 1940s, but there was little awareness of them as an environmental contaminant until the early 2000s. The chemicals most recently re-emerged in mainstream pop culture conversations after the release of the 2019 film, Dark Waters, which highlighted a PFAS contamination lawsuit involving releases of one of the more common compounds, PFOA (perfluorooctanoic acid), from a DuPont manufacturing facility that resulted in a $671 million cash settlement.

Radically Lowered EPA Health Advisories

On June 15, 2022, senior U.S. Environmental Protection Agency officials announced new or revised lifetime health advisories for four PFAS chemicals in drinking water. These include interim modified health advisories of 0.004 parts per trillion (ppt) for PFOA and 0.02 ppt for perfluorooctane sulfonic acid (PFOS). This represents a drastic decrease from EPA’s 2016 final health advisories of 70 ppt for PFOA and PFOS. The basis for these radically lowered interim levels is preliminary findings from epidemiological studies suggesting that these chemicals may be linked to suppression of vaccine response in children. New final health advisories were also issued: 10 ppt for GenX chemicals (hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt), based on liver effects in animal studies, and 2,000 ppt for potassium perfluorobutane sulfonate (PFBS), based on thyroid effects in animal studies.

EPA’s updated health advisories are only aspirational and not enforceable, and there are currently no federal PFAS drinking water standards. However, EPA plans to propose a PFAS National Drinking Water Regulation in fall 2022 and finalize it by fall 2023, which would be enforceable. The regulations are likely to be informed by the health advisories and their underlying science.

If aligned with the extremely low interim health advisories for PFOA and PFOS, regulatory limits could have serious consequences for water providers required to meet the standards through treatment. Currently the lowest Maximum Contaminant Levels (MCLs) for these chemicals promulgated by any state are 5.1 ppt for PFOA and 6.5 ppt for PFOS (both in California). Whereas data collected for Unregulated Contaminant Monitoring Rule 3 in 2017 showed that only a small percentage of reporting water suppliers had PFOA or PFOS concentrations exceeding the previous health advisory, it can be presumed that this number would grow exponentially with limits several orders of magnitude smaller.

Accompanying EPA’s health advisories was an invitation to states and territories to apply for $1 billion in grant funding under the Bipartisan Infrastructure Law to tackle PFAS and other emerging drinking water contaminants. EPA Administrator Michael S. Regan says the funding is part of an “aggressive action as part of a whole-of-government approach to prevent these chemicals from entering the environment and helping to protect concerned families.”

Proposed Designation for PFOA and PFOS as Hazardous Substances

On September 6, 2022, EPA published a proposed rule to designate two PFAS, including their salts and structural isomers, as hazardous substances under CERCLA. If finalized, all persons in charge of a vessel or facility will be required to immediately report any releases containing one or more pounds of PFOS and PFOA within a 24-hour period. EPA noted several broad categories of entities most likely to be affected by the rule. These include PFOA and/or PFOS manufacturers and processors, manufacturers of products containing PFOA and/or PFOS, downstream manufacturers and users of PFOA and/or PFOS, and waste management and wastewater treatment facilities. Federal agencies selling or transferring real property will be required to provide notice of the presence of PFOS and PFOA if the substance “was stored for one year or more, known to have been released, or disposed of” and covenants concerning the remediation of the substances. And, last but certainly not least, the presence of these compounds will become a more important focus of due diligence in real estate transactions, as they will confer potential CERCLA liability on property owners.

The 60-day public comment period on the proposed rule ends on November 7, 2022. EPA also noted that it anticipates developing an Advance Notice of Proposed Rulemaking seeking data and comments on designating other PFAS as hazardous substances under CERCLA.

Addressing the Conundrum of Aqueous Film-Forming Foam (AFFF)

One source of PFAS within the environment is deployment of AFFF, a highly effective type of fire extinguishing foam considered to be the best option for extinguishing fuel-based fires. AFFF was originally developed in response to devastating fires on naval vessels and remains the sole class of foam meeting military specifications for certain applications. Its use is also required for airport fire-fighting operations at commercial airports by the Federal Aviation Administration (FAA). Alleged injuries and property damage from exposure to and contamination by PFAS from AFFF, as well as costs incurred by water providers and states in addressing PFAS contamination, are the subject of a large federal multi-district litigation currently pending in the District of South Carolina.

The military specification was amended in 2019 to remove the explicit requirement that compliant foam contain PFAS; however, to date alternatives that meet the MILSPEC’s performance requirements have not been identified. The FAA Reauthorization Act of 2018 directed FAA to cease requiring use of PFAS-based foam by October 2021. The 2020 National Defense Authorization Act set a deadline for the Department of Defense to publish a MILSPEC for fluorine-free (non-PFAS) fire-fighting foam, a draft version of which was released for public comment in June 2022. In late July 2022, FAA issued a report summarizing the results of comparative testing of several fluorine-free, or non-PFAS, foams with AFFF products. The results found that the fluorine-free products failed to exhibit equivalent extinguishing performance as compared to AFFF. These developments leave unresolved the tension between optimizing fire safety and eliminating releases of PFAS to the environment, although such releases have been reduced by ceasing training use of AFFF as a regular practice.

New York State Actions Related to PFAS

New York State adopted its own PFOA and PFOS MCLs for drinking water in July 2020. The state’s 10 ppt limit was recently challenged by 3M in the New York State Supreme Court of the County of Albany, but the case was dismissed for a lack of standing.

The New York State Department of Environmental Conservation (DEC) is also poised to release a final rule amending 6 NYCRR Part 375. The regulations would, for the first time, include regulatory soil cleanup objectives for PFOA and PFOS releases pertaining to Part 375 remedial programs. The proposed objectives largely track the guidance values that DEC published in June 2021. Thus, certain contaminated sites in remedial programs may need to more explicitly address these compounds in order to achieve closure.

In 2020, New York Governor Andrew Cuomo signed S.8817 (A.4739), which prohibits the use of PFAS in food packaging. This law becomes effective on December 31, 2022. In May 2022, the New York State legislature passed A.7063A (S.6291A), which aims to prohibit the intentional addition of PFAS in apparel. The bill has not yet been signed by the governor. The State has also banned the discharge, use, purchase and manufacturing of AFFF, with certain exemptions for use in extinguishing fires caused by flammable or ignitable liquids, or where required by federal law or regulations.

EPA has established that it plans to aggressively tackle PFAS contamination across the country, and many states, including New York, have taken even earlier and more expansive actions. As the regulatory landscape surrounding these chemicals rapidly evolves, the potentially regulated community and other stakeholders should pay attention to the implications of recent and future regulatory changes on their operations.

 

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