PFAS covers a wide family of chemicals that have historically been used in many consumer products and manufacturing applications. Most common PFAS include perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS). Health studies link exposure to PFAS with adverse health impacts (e.g., cancer and auto-immune disorders), requiring increased regulatory controls. The potency of PFAS is so significant that acceptable exposure levels are measured in "parts per trillion." Further, PFAS are slow to naturally degrade, resulting in them being referred to as "forever chemicals."
(A) Exposures
A December 2019 U.S. Department of Health and Human Services document estimates that over 60 million U.S. residents have been exposed to unacceptable concentrations of PFAS in their drinking water or food. Other commentators believe this number underreports actual exposures.
(B) Industries impacted
PFAS have been directly linked to the following industries and products:
- Pulp and paper packaging and products: while PFAS have been largely banned in the United States, pulp and paper packaging and products utilizing recycled materials from other countries can re-introduce PFAS into the United States.
- Surface finishing (e.g., electro-plated products).
- Food (whether due to PFAS in packaging or food grown in PFAS-contaminated soil or water).
- "Non-stick" products: stain and water repellent fabrics, non-stick cookware, paints, certain waxes and cleaning products may contain PFAS from other countries.
- Fire-fighting foam flame retardants.
- Landfills and other water treatment and waste management facilities.
However, a much wider range of industries are indirectly impacted by PFAS. Although PFAS use in many U.S. manufacturing processes has been banned, PFAS may be constituents in new products or components manufactured abroad, or unintentionally regenerated by U.S. manufacturers utilizing recycled materials.
(C) Federal legislation
Two recent legislative developments warrant summary.
First, the National Defense Authorization Act (NDAA) for Fiscal Year 2020 became law in December 2019. Among other things, the NDAA added several PFAS (including PFOA and PFOS) to the Toxic Release Inventory (TRI) monitoring and reporting program (as part of the Emergency Planning and Community Right-to-Know Act). Regulated business will now need to monitor for these additional PFAS, and begin annual reporting by July 1, 2021.
Second, the U.S. House of Representatives approved the "PFAS Action Act of 2019" (H.R. 535, Dingell (MI)) on January 13, 2020. If enacted, H.R. 535 would require the U.S. Environmental Protection Agency (EPA) to designate PFOA and PFOS as hazardous substances within one year (and possibly all PFAS within five years). This would open up increased monitoring and compliance obligations under the Safe Drinking Water Act and the Resource Conservation and Recovery Act, as well as increased liability exposure under the Comprehensive Environmental Response, Compensation and Liability Act.
H.R. 535 has now passed over to the U.S. Senate, where it appears to be receiving a more tepid reception. Some Senate members have indicated H.R. 535 will need to be amended (inferring less aggressive regulations) before being approved by that chamber. This legislation is worth following as it could result in uniform national PFAS monitoring and mitigation standards, resolving some of the discrepancies between state standards (discussed below).
(D) Federal regulations
Separate from legislative debates, the U.S. EPA is considering adding yet additional PFAS (beyond those just added by the NDAA) to the list of toxic chemicals subject to TRI reporting under section 313 of the Emergency Planning and Community Right to Know Act and section 6607 of the Pollution Prevention Act. A public comment period on these proposed regulations closes on February 3, 2020.
(E) Conflicting drinking water standards
One of the hotly debated issues between regulators is what constitutes acceptable concentrations of various PFAS in drinking water. While a full analysis goes beyond the scope of this overview, suffice it to say that federal and state regulatory agencies cannot agree on across-the-board standards, resulting in varying monitoring and acceptable drinking water exposure levels. For example:
- EPA has issued "lifetime health advisory" standards of 70 nanograms per liter (ng/l) for both PFOA and PFOS.
- California has its own "notification levels" of 5.1 ng/l (PFOA) and 6.5 ng/l (PFOS), while other states (e.g., Michigan, New York, New Jersey and Minnesota) all have varying PFAS-related standards, generally in the 8–35 ng/l range. Washington state anticipates issuing a final Chemical Action Plan for PFAS in 2020.
In short, a technological solution for filtering and mitigation that may work for a manufacturing plant in one state may not be sufficient for a sister facility in another state.
(F) Litigation
There is a decidedly increased trend in toxic tort litigation based upon alleged exposure to PFAS. In addition to certain one-off cases, an increasing number of product liability and personal injury (toxic tort) lawsuits are being brought against manufacturers, and personal injury (toxic tort) suits against employers for workplace exposures, whether by state agencies or private parties. Some of these cases have been grouped together and handled via multi-district litigation procedures. See, e.g., In Re Aqueous Film-Forming Foams Products Liability Litigation MDL in South Carolina federal court.
Client Alert 2020-014
