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Experts Expect More PFAS Regulations in 2023

PFAS Regulations and Their Impact on Drinking Water Standards


The Environmental Protection Agency’s (EPA) new proposed drinking water standard, announced on Tuesday, is one of the many PFAS-related actions that legal experts anticipate from state, federal and international regulators this year.


EPA's Proposed Drinking Water Standard and Its Significance


Short for per- and poly-fluoroalkyl substances, PFAS are synthetic chemicals found in nonstick cookware, firefighting foam, and food packaging, among other products. Also called “forever chemicals,” PFAS do not naturally degrade and are difficult to remediate. Researchers have linked PFAS exposure to harmful health effects in both humans and animals.


A metal tap fills a glass full of clear drinking water.

If finalized, the EPA’s regulation would require public water systems to monitor for six types of PFAS and to notify the public if levels exceed regulatory standards. In the announcement, EPA predicted the proposed rule could, “over time, prevent thousands of deaths and reduce tens of thousands of serious PFAS-attributable illnesses.”


“Communities across this country have suffered far too long from the ever-present threat of PFAS pollution,” EPA Administrator Michael Regan said in a statement. “That’s why President Biden launched a whole-of-government approach to aggressively confront these harmful chemicals, and the EPA is leading the way forward.”


Challenges and Legal Implications of PFAS Regulation


More than 20 states have already passed their own drinking water standards, resulting in a patchwork of varying acceptable levels, according to a report from law firm Bryan Cave Leighton Paisner (BCLP).

Meanwhile, the European Union is considering a ban on the production and use of PFAS, including on imported products, various media outlets reported. Following a review that’s currently underway, the European Commission and member states will vote on the proposed ban, according to Clyde & Co.


Beyond regulation, companies that have PFAS in their finished product are at risk of litigation, Clyde & Co. partners Alex Potente and Kevin Haas and senior counsel Yvonne Schulte wrote. Between July 2005 and March 2022, more than 6,400 PFAS-related lawsuits were filed in federal courts, according to Bloomberg Law.


“Clients should track regulatory developments regarding PFAs, enforcement actions at the state and federal levels, results of state and federal PFA litigation, and evaluate their insurance coverage for pollution policy language governing or excluding PFAs,” the Clyde & Co. team stated.


Governments and private parties have sued manufacturers that make or use PFAS in their operations for personal injury claims, statutory violations, or to recover costs of remedial or filtration equipment. Organizations that make, buy, or sell products containing PFAS are vulnerable to product liability and toxic tort litigation. Organizations deemed responsible parties at PFAS-contaminated sites could be liable for cleanup costs. And new regulations will likely result in facility-specific air and wastewater discharge limits.


As a pollution issue, PFAS are comparable to asbestos, Kellie Vazquez, a claims adjuster and remediation expert with insurance services firm Charles Taylor, wrote.


“Many governments across the globe are seeking to address the use of PFAS in products but also where land or rivers have historically been contaminated,” said Vazquez. “The costs to remove the contamination can be huge, such that many insurers do not wish to have to meet these costs.”


Two additional EPA actions will pave the way for PFAS remediation requirements. In August, the agency put forward a “landmark” proposed rule designation two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), said Potente. And in October 2021, it proposed four PFAS substances be deemed hazardous under the Resource Conservation and Recovery Act (RCRA).


RCRA regulates how waste should be managed. CERCLA, also known as Superfund, involves the remediation of hazardous materials at historically contaminated sites.


The changes would give the EPA regulatory oversight of PFAS in a few ways, noted BCLP. The agency could order the investigation and remediation of sites suspected of containing those chemicals, it could seek to recover costs associated with remediating sites from responsible parties, and it could reopen sites that had already been remediated for additional investigation of PFAS.


“This regulatory direction provides industries an opportunity to plan ahead and make strategic decisions regarding their management of PFAS, including consideration of remedial strategies and solutions in anticipation of future regulatory action,” BCLP wrote. “Businesses that take a proactive approach are likely to be better positioned to react to requirements resulting from these forthcoming regulations.”


State Approaches to PFAS Regulations


Eleven states now regulate food packaging containing “intentionally added PFAS,” though some states go beyond food packaging to include other consumer products, noted Pillsbury Winthrop Shaw Pittman in an online post. California bans the sale of cookware containing PFAS unless the seller discloses the presence of these chemicals on the product label. At the end of this year, New York will start prohibiting PFAS in apparel. Maine’s PFAS law is the broadest, Pillsbury noted. The state prohibits the sale of PFAS-containing products unless the seller notifies it of the “presence, amount, and purpose” of the PFAS in the product.


“The current slate of state laws may be the tip of the iceberg, as the possibility exists for additional states to follow suit,” wrote Pillsbury. The law firm added, “Non-compliance with these new laws could subject companies to regulatory enforcement and penalties. All the states in question have codified penalty provisions that would apply to violations of the pertinent laws.”

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