Per-and polyfluoroalkyl substances (collectively, “PFAS”) are a group of nearly 5,000 human-made chemicals that are resistant to heat, water and oil. Due to these “resistance” properties, since the 1940s, PFAS have been used in a broad spectrum of industrial applications and commercial products, including everyday household items and packaging. Some examples of PFAS usage include carpeting, waterproof clothing, upholstery, food paper wrappings, cookware, personal care products, fire-fighting foams, and metal plating.
In the environment, PFAS rapidly move through groundwater. Thus, PFAS frequently are found in public and private water sources throughout the United States.
Unfortunately, the same resistance to water, heat and oil that lead to the use of PFAS in industrial applications and commercial products, also makes them slow to naturally biodegrade and difficult to remove from environmental media using the technologies traditionally used to remediate environmental conditions.
The United States Environmental Protection Agency (the “EPA”) has concluded that “most people in the United States have been exposed to PFAS”, “due to their wide-spread use and persistence in the environment.”1 Scientific studies have shown that regular exposure to even low concentrations—in the range of parts per trillion (“ppt”)—of PFAS may cause certain adverse health effects. Such adverse health effects include: reproductive effects such as decreased fertility or increased likelihood of high blood pressure in pregnant women; developmental effects in children, including low birth weight, developmental delays, accelerated puberty, bone variations or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body's immune system to fight infections, including reduced vaccine response; interference with the body's natural hormones; and increased cholesterol levels and/or risk of obesity.
In response to concerns over the potential adverse consequences of exposure to PFAS on human health, recently, the EPA has taken certain steps to regulate PFAS in a number of contexts. In one of its first actions relative to PFAS, in 2012, the EPA directed operators of public drinking water systems to begin testing for the presence of PFAS in their drinking water supplies. Then, in 2016, the EPA issued drinking water health advisories at 70 parts per trillion for Perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (PFOS), two PFAS chemicals. The analogy frequently used to describe parts per trillion is drops of water in an Olympic-sized swimming pool. So, 70 ppt would be equivalent to 70 droplets of water in an Olympic-sized pool. The purpose of such EPA health advisories is to provide technical information to state agencies and other public health officials on health effects, analytical methodologies, and treatment technologies associated with drinking water contamination by PFAS.
On June 15, 2022, the EPA released updated drinking water health advisories for PFOA and PFOS as well as new health advisories for hexafluoropropylene oxide-dimer acid (“GenX”) and perfluorobutane sulfonate (“PFBS”). These updated 2022 health advisories significantly reduced the concentrations of PFOA and PFOS from 70 ppt to 0.004 ppt and 0.02 ppt respectively—about the equivalent of 4/1000th and 2/100th of a drop of water in an Olympic-sized pool. The 2022 drinking water health advisory set concentrations of 10 ppt and 2,000 ppt for GenX and PFBS.
In June 2020, the EPA added 172 PFAS chemicals to the Toxics Inventory Reporting (“TRI”) requirements for 2020. Three other PFAS chemicals were added to TRI reporting requirements in 2021.
In early 2019, the EPA commenced two significant regulatory process PFOA and PFOS; (1) promulgating a Maximum Contaminant Level (“MCL”) for PFOA and PFOS under the Safe Drinking Water Act and (2) adding the PFOA and PFOS to the list of chemicals identified as “hazardous substances” under CERLCA.
On October 18, 2021, the EPA issued comprehensive plan for promulgating regulations governing PFAS under various environmental regulatory programs, titled “PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024” (the “Strategic Roadmap”). The Strategic Roadmap identifies goals and implementation strategies for addressing PFAS moving forward, such as holding “polluters accountable”, placing “responsibility for limiting exposures and addressing hazards of PFAS on manufacturers, processors, distributors, importers, industrial and other significant users, discharges, and treatment and disposal facilities” and enhancing PFAS reporting.2 Furthermore, the EPA identified the following industrial sectors as “priorities” for additional investigation and evaluation as suspected PFAS users: printing; chemical manufacturing and blending; plastics and resins; oil & gas; metal coating; mining and refining; electronics; aviation; waste management; treatment and disposal; and potable water management, treatment and distribution.
The EPA is in the process of implementing the plan set forth in the Strategic Roadmap. As that plan is implemented, we anticipate that the entities that used PFAS, and entities that own or operate property on which that may be present PFAS in environmental media such as groundwater or soil, may be affected by the coming PFAS regulations. We foresee regulatory developments relating to PFAS under the following regulatory programs: CLERCLA; TRI National Pollutant Discharge Elimination System permitting, Industrial Wastewater Discharge permitting, Solid and Hazardous Waste Management and Disposal, and Toxic Substances Control.
In preparation for the coming PFAS regulations, businesses—especially in the “priority” industrial sectors listed above—should conduct their own assessments of the nature, scope and extent of their potential exposure to PFAS- related risk. Such assessments should include careful review and analysis of current operations and anticipated future compliance obligations, and develop of a plan to manage potential PFAS-related risk and comply with anticipated PFAS regulations that will likely affect their business.
PFAS is coming. The time to prepare is now.
1 Lifetime Health Advisories and Heal Effects Support Document for POFA and PFOS, 81 Fed. Reg. 33250 (EPA May 25, 2016).
2 PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024 (Oct. 18, 2021).
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