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Federal and state legislatures and agencies have increasingly focused action to address concerns about the significant risks to human health and the environment from so-called “forever chemicals” known more widely as PFAS.
Per- and Polyfluoroalkyl Substances (PFAS) are a group of human-made chemicals resistant to heat, water, and oil that are used in many industrial and consumer applications. For instance, PFAS are used in carpets, water-proof clothing, food paper wrappings, non-stick products, cleaning products, fire-fighting foams, and metal plating (e.g., cookware). Chemists initially created PFAS in the 1930s and large-scale manufacturing of PFAS-containing products began in the 1950s. There are over 5,000 different PFAS chemicals in existence, including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).
PFAS chemicals persist due to negligible degradation in the environment, hence the nickname “forever chemicals.” Because their presence is so common, they are deemed “ubiquitous”—99 percent of the population has detectable traces of PFAS in their blood. Scientific studies have shown that exposure to unsafe levels of PFAS may lead to adverse health effects, including reproductive and developmental harms, increased risk of cancer, and interference with the body’s immune system and hormones.
Federally, Congress took a significant step through the enactment of the National Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92, 133 Stat. 1198), which, among other things, prohibits the use of fluorinated aqueous film-forming foam (AFFF, or PFAS-containing fire-fighting foam designed for oil fires) at military installations by October 1, 2024, and adds certain PFAS to the list of chemicals covered by the Toxics Release Inventory (TRI) under section 313(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA).
The Environmental Protection Agency (EPA) is in the midst of carrying out its “PFAS Strategic Roadmap.” Pursuant to this plan, since November 2021 EPA has: proposed designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); proposed adding PFAS to the list of Lower Thresholds for Chemicals of Special Concern under EPCRA; announced health advisory levels for four PFAS; and listed PFAS on its Fifth Contaminant Candidate List.
Most recently, EPA announced a proposal to set national drinking water standards for six PFAS, including enforceable Maximum Contaminant Levels (MCLs) of 4.0 parts per trillion for PFOA and PFOS, and non-enforceable Maximum Contaminant Level Goals (MCLGs) for four other PFAS. EPA is holding a public hearing on May 4, 2023, to receive comments on the proposal. Industry groups and water utilities have expressed concerns about prospective costs and the science underpinning the rule, which is expected to draw lawsuits if and when the rule becomes final.
Meanwhile, many state legislatures and agencies have gone even further in regulating PFAS. California, New York, and Massachusetts, for example, already have established MCLs for PFAS. In 2022, California added PFOA to its Proposition 65 List and imposed new monitoring requirements on public water systems. California also enacted two statutes that prohibit the manufacturing or sale of PFAS-containing textile articles and cosmetic products beginning in 2025. Colorado enacted a statute that imposes reporting requirements for releases of AFFF, similar to a statute California enacted in 2020. In 2021, Maine banned the sale of any PFAS-containing product by 2030 unless the use of PFAS in the product is unavoidable. In total, more than 200 PFAS-related bills have been introduced across 31 states through the end of 2022, and laws and regulations in over a half-dozen states take effect in 2023.
There are four primary categories of actors subject to PFAS regulations: manufacturers, sellers, users, and water utilities. Each category faces unique regulatory burdens.
Manufacturers of PFAS-containing products face various existing and proposed restrictions, from state prohibitions on manufacturing to state labeling requirements to federal reporting requirements under the Toxic Substance Control Act (TSCA). Similarly, sellers face state prohibitions on the sale of PFAS-containing products.
PFAS are so widespread that virtually everyone is a user of PFAS-containing products and has contributed to the existence of PFAS in the environment. Due to practical considerations, however, federal and state agencies currently focus on the most easily-identifiable users—largely those that historically used AFFF—including the military, airports, fire departments, and oil refineries, by imposing use prohibitions as well as reporting and water monitoring requirements.
Water utilities, including drinking water and wastewater service providers, also face regulatory challenges. In California, many drinking water providers are subject to monitoring requirements and may have to cease using a water source, treat the water, or provide public notification if PFAS concentrations exceed certain response levels. These threats have prompted some providers, such as the City of Thornton, Colorado, to sue manufacturers to recoup mitigation costs. Additionally, wastewater treatment providers express concerns with possible exposure to liability under CERCLA and additional burdens associated with National Pollutant Discharge Elimination System (NPDES) permits. Landfill owners and operators express similar CERCLA concerns.
In addition to federal and state legislative and regulatory activity, there is also significant PFAS action taking place in courthouses. Since 2005, there have been over 6,400 PFAS-related lawsuits, ranging from class actions to actions by state attorney generals. These include water utilities suing manufacturers to recover costs associated with addressing PFAS-contaminated drinking water. One plaintiff, the City of Anaheim, is reported to be spending $150 million to construct a new treatment plant and many more millions in the interim, and has sued an array of manufacturers, including 3M and DuPont.
In 2017, DuPont and Chemours Co. reached a reported $671 million settlement with a class of plaintiffs in West Virginia. In 2018, 3M reached an $850 million settlement with the state of Minnesota. In November 2022, California joined the fray when its attorney general filed a complaint in Alameda County Superior Court against various manufacturers.
Looking forward, many await the first trial in a multidistrict litigation PFAS contamination lawsuit in South Carolina federal district court, where three “bellwether” cases involving water utilities are among the more than 4,000 cases present, that is scheduled for June 2023. Recently, the judge rejected 3M’s argument that it is immune from liability as a government contractor. Some estimate 3M’s total liability could reach $30 billion.
3M recently pledged to discontinue manufacturing PFAS by 2026, despite maintaining that “PFAS are critical in the manufacture of many products that are important for modern life[.]” Fortunately, advancements in technology have led to viable, non-PFAS alternatives, at least for AFFF.
There is also good news regarding water treatment: scientists have developed a new method, using hydrogen and ultraviolet light, to treat PFAS-contaminated water. Scientists report that this “green” method destroys PFAS particles without generating undesirable byproducts or impurities. That said, questions remain over economic feasibility and real-world implementation of this method. Engineers are also developing treatment systems (using adsorbent media) for use in decentralized or in-home applications. One southern California wastewater treatment plant is implementing another new technology, a supercritical water oxidation unit, to remove PFAS and other constituents so that the water can be recycled for potable uses. Other known treatment processes include granular activated carbon, ion exchange resins, and high-pressure membrane systems.
Somach Simmons & Dunn provides legal services covering numerous natural resources and environmental law subjects, including PFAS-related issues. Our firm is prepared to help public agencies and private parties navigate the rapidly evolving regulatory landscape, prosecute or defend PFAS-related actions, and advise clients on their best course of action.
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