In recent years, states have begun investigating the health and environmental effects of PFAS and the class of chemical compounds that have come to be known as “forever chemicals.” This has led states to initiate massive efforts to remediate environmental media (primarily groundwater including municipal water sources) impacted by these chemicals, with many of these efforts focused on remediating drinking water supplies impacted by aqueous film-forming foams (AFFF) containing these chemicals. These efforts have also led states to initiate hundreds of lawsuits against PFAS manufacturers, seeking cleanup costs and other damages. As states have become more aggressive in their attempts to hold PFAS manufacturers and AFFF users responsible for impacts from these chemicals, including contamination of water supplies, it has become more important to understand the current state of regulation and litigation surrounding PFAS.
I. PFAS Regulation and Litigation
In 2016, New York, Vermont and New Hampshire urged the Environmental Protection Agency (EPA) to acknowledge PFAS/PFOA contamination as a national problem that requires federal regulation. Later that year, the EPA issued a lifetime advisory limit of 70 parts per trillion for long-term exposure to PFOA in drinking water. This means that in a person’s lifetime, a safe level of exposure to PFOA chemicals is 70 parts per trillion, which compared to other limits for hazardous chemicals is unprecedentedly low. To understand just how minute this advisory limit is—this would be beyond the technical capability of (lower than) equipment commonly used to detect chemicals in groundwater.
The EPA has since made various efforts to promote cleanup of PFAS contamination and to prevent future contamination. The EPA has released guidance on the destruction and disposal of PFAS. The federal government has also taken action to address PFAS contamination. On July 21, 2021, the House approved a bill – the PFAS Action Act – which would require the EPA to add PFAS to the list of hazardous substances, triggering federally-directed cleanup requirements. The bill would also require monitoring drinking water for these chemicals.
a. Proposed New Federal Regulations
In June 2021, EPA proposed a new rule, currently being finalized by the Biden administration, that would require businesses that have manufactured, processed or imported PFAS, to submit a comprehensive report disclosing and detailing all of those uses for a 10-year period. It contains very few exceptions and thus, businesses will not be able to avoid such disclosure as they can with other chemical data reporting requirements under the Toxic Substances Control Act (TSCA). Further, these disclosure requirements will apply to both major corporations and small businesses.
On October 18, 2021, EPA Administrator Michael Regan announced that the Agency would be designating PFOA and PFOS as hazardous substances by 2023, with a proposed rule submitted by Spring 2022. Designating PFOA and PFAS as hazardous substances has significant ramifications in terms of liability and clean up requirements under federal law. The “strategic roadmap” in Administrator Regan’s announcement provides that a national testing strategy will be laid out this Fall. The strategy will target gaps in existing PFAS testing data and select representative chemicals as priorities for additional studies. The first round of such orders is expected by the end of the year. EPA also announced that it would issue MCLs for PFAS compounds, including the promulgation of a national primary drinking water regulation, by 2023. It remains to be seen whether the federal MCLs will be stricter than New York’s, which is currently 7 times more stringent than the existing federal MCL. Again it is critical to note that that these regulatory levels are in many ways unprecedented and in some cases are beyond the ability of some localities to identify and detect these chemicals. The EPA’s pending requirement that companies report their use of PFAS would impose a significant burden on businesses across many industry sectors, and environmental attorneys say it's crucial that companies act now to prepare for the regulatory rollout. The broad scope of the proposed rule is intended to help the Agency better understand the potential risks and scope of the chemicals. The rule would be a one-time requirement, but the proposed reporting regimen could pose challenges for clients who haven't kept detailed records of their past use of PFAS, as thousands of businesses that may have never been subject to TSCA may now suddenly find themselves needing to navigate its complex reporting framework.
Attorneys are counseling their clients to prepare now to submit the required documentation or be able to establish they deployed their best efforts to pull it together.
b. New York Drinking Water Standards
In January of 2016, New York became the first state to regulate PFOA as a hazardous substance. The regulations require the proper storage of the chemicals and limited releases into the environment. In August, 2020, NYS adopted new drinking water standards for public water systems that set maximum contaminant levels (MCLs) of 10 parts per trillion (10 ppt) each for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). These limits are among the most stringent in the nation.
New York’s drinking water standards require public water systems to regularly test and monitor for PFAS. The state has also created the Drinking Water Quality Control Council to provide recommendations to the State Department of Health on how to address PFAS contamination in drinking water. In addition, New York state has undertaken efforts to monitor AFFF hotspots where PFAS contamination is likely. New York has made it clear that monitoring and regulating PFAS contamination has become a priority to protect human health and the environment.
More recently, on October 5, 2021, DEC released new water quality guidance values designed to advance the State’s regulation of PFOA, PFOS, and 1,4-Dioxane. This guidance took the form of three draft Technical and Operational Guidance Series (TOGS) documents that were made available for public review and comment.
DEC’s guidance is intended to strengthen regulation of these contaminants in source drinking waters. This will presumably require providers of public water services to take measures to enhance treatment of waters containing these contaminants at levels even lower than the State’s current maximum contaminant levels (MCL) for PFAS, which are among the most stringent in the country.
This is unlikely to be the final step in New York’s regulation of PFAS, particularly as it concerns drinking water. New York has established itself at the vanguard of states regulating these compounds, an enterprise not limited to the protection of drinking water supplies. In fact, in recent years, DEC has increasingly required municipalities and other entities associated with landfills and solid waste management facilities to engage in lengthy and costly site investigations and cleanups, even when such facilities have had no demonstrable impact on drinking water supplies.
c. Pending Litigation
There is a growing trend of municipalities commencing litigation against PFAS manufacturers, particularly in connection with groundwater impacts caused by AFFF. These cases typically claim the manufacturers of AFFF knew or should have known that PFAS would be very likely to harm human health and the environment. These lawsuits seek restitution and damages from PFAS manufacturers and distributors following the discovery of impacts to groundwater and other natural resources.
New York state has filed multiple lawsuits against PFAS and AFFF manufacturers. For example, in a recent lawsuit, the state claimed these manufacturers should have known of the environment and health risks associated with the use of PFAS because the manufacturers should have known PFAS is a “forever chemical.” This suit seeks punitive damages that would be sufficient to deter and punish manufacturers of PFAS. New York has also filed other lawsuits against PFAS and AFFF manufacturers seeking cleanup costs for PFAS contamination of water. In these lawsuits, the state is seeking to recover costs paid for investigating, monitoring, and remediating PFAS contamination.
These lawsuits further confirm New York’s aggressive efforts to address PFAS contamination of drinking water beyond merely imposing stringent regulations. Many other states have also aggressively pursued litigation against AFFF and PFAS manufacturers, military bases, and airports for their use of the chemical. As a result, over 500 cases have been consolidated in a multi-district litigation (MDL) action in the District of South Carolina. This MDL addresses the alleged injuries and health effects caused by the use of AFFF that contains PFAS.
II. Looking Ahead
It is clear that we are only in the infancy of the regulation of PFAS. However, some apparent trends are emerging. These include imposition of unprecedented regulatory and reporting limits and extensive litigation (in many cases initiated by states), requiring proactive planning, including an understanding of any applicable insurance coverage. Moreover, the ramifications for companies and individuals that may be subject to clean up liability for these chemicals under the regulations proposed is equally significant, particularly in light of the difficulties associated with remediating them, and because it is often problematic to identify the source of such chemicals when they are discovered in the environment. In order to attempt to prepare for the coming regulatory burden and potential clean up liability associated with same, companies, including manufacturers and non-manufacturing businesses whose activities may lead to regulatory and/or liability exposure, should consider engaging knowledgeable and experienced legal counsel and technical consultants. To do otherwise could dramatically increase exposure to costs and liabilities that surely await. You can refer to this discussion of PFAS and PFOA by a knowledgeable representative of an experienced environmental firm with significant experience in detecting and remediating impacts from these chemicals.