PFAS: The Forever Chemicals Gaining Regulatory Attention

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Although EPA announced an “action plan” on per- and polyfluoroalkyl substances (PFAS) back in February, subsequent actions have been limited, that is, until recently.

First created in the 1940s, PFAS are most commonly utilized to make products such as nonstick cookware, grease-resistant food packaging, stain repellents, and firefighting foams. Given the prevalence of PFAS, it is commonly believed that most Americans have been exposed to these chemicals. At present, the most analyzed PFAS chemicals are perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). According to EPA, certain PFAS can accumulate and remain in the human body for extended periods.  Further, EPA maintains that some studies of laboratory animals have demonstrated adverse health effects, including reproductive and developmental, liver and kidney, and immunological effects. In addition, studies have found that such chemicals can cause tumors in animals.

As other states have moved independently to regulate PFAS chemicals, EPA has been more deliberate. However, with respect to drinking water, EPA has established health advisory levels of exposure to PFOA and PFOS at 70 parts per trillion. While EPA health advisories help educate the public on contaminants that may adversely impact human health, they are not enforceable and non-regulatory and simply intended to provide technical information to state agencies and other public health officials.

With increased attention from Hollywood, Washington, D.C., and many states, that landscape now appears to be changing as concerns over PFAS in drinking water supplies escalate. For example, on November 8th, EPA issued a 45-day notice of public comment ending December 23rd releasing the Systematic Review Protocol for five PFAS toxicity assessments under the agency’s Integrated Risk Information System (IRIS) Program. EPA’s Systematic Review Protocol is not a toxicity assessment itself, but describes how the five IRIS assessments will be conducted, including specific procedures and approaches. Although the Systematic Review Protocol summarizes the methods in one document, there will be five separate IRIS assessments. Both houses of Congress also took action last month with H.R. 2626: the PFAS Accountability Act of 2019 in the House and the Clean Water Standards for PFAS Act in the Senate.

On September 23rd, the Centers for Disease Control and Prevention (CDC) and Agency for Toxic Substances and Disease Registry (ATSDR) announced the start of a multi-site health study to investigate the relationship between drinking water contaminated with PFAS and health outcomes in potentially exposed communities in California, Colorado, Massachusetts, Michigan, New Jersey, New York and Pennsylvania. However, the study itself appears presently mired in a dispute between the CDC and White House Office of Management and Budget.

Nevertheless, by year-end, EPA intends to issue a  proposed regulatory determination for PFOA and PFAS as part of the drinking water standard-setting process outlined in the Safe Drinking Water Act (SDWA). In addition, on November 25th, EPA requested information on whether to require certain industries and federal facilities that make or use PFAS to report when they are released and how they are managed. More particularly, EPA published pre-regulatory notice describing ways it could revise its Toxics Release Inventory (TRI) program to obtain information on the releases of certain PFAS. EPA invited information on the approximately 600 PFAS that are made in or imported into the U.S. That information could help the agency decide whether those chemicals should be reported and perhaps more formally regulated. EPA also is evaluating whether to regulate PFOA and PFOS as hazardous substances under the federal Superfund laws which could create substantial liability for future remediation for facilities like military bases and airports, that have consistently utilized such substances as part of fire training exercises.

In Arizona, new legislation will take effect on January 1, 2020 prohibiting the discharge or use for training purposes of class b firefighting foam that contains “intentionally added” PFAS chemicals unless otherwise required by law or federal regulation. The trajectory of proposed federal studies and regulation of PFAS combined with existing and growing state regulation suggest that heightened attention on PFAS will be a hot topic in 2020.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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