PFAS Update: August 2020

Co-authored by Edward Mahaffey and Jeffrey Karp

There have been several recent developments involving PFAS regulation, most notably the Environmental Protection Agency’s (EPA) Significant New Use Rule (SNUR) for certain long-chain per- and polyfluoroalkyl compounds (PFAS).

EPA’s Significant New Use Rule

The EPA released the pre-publication version of its final amended rule on June 22, 2020,[1] elements of which first were proposed on January 21, 2015. The rule designates the manufacturing, importing or processing of an identified subset of long-chain PFAS – long-chain perfluoroalkyl carboxylate (LCPFAC) substances – as a significant new use if it was not already ongoing as of December 31, 2015[2]. The rule also applies to new uses of other types of LCPFAC, such as PFOA and its salts, that were not ongoing as of January 21, 2015. The rule requires companies to notify the EPA at least 90 days before beginning a new use of LCPFAC, and not to begin the use until the EPA gives its permission in the Federal Register; the EPA may also permit a new use, but place restrictions on it. Any new use that was not already ongoing as of December 31, 2015 is classified as a "significant new use," and a company wishing to continue such use must cease it and request permission from the EPA through this Federal Register process. The same applies to new uses of other types of LCPFAC, such as PFOA, and PFOA salts, that were not ongoing as of January 21, 2015.

Thus, the rule is structured to enable EPA to prospectively control the amount of PFAS that may be released into the environment by evaluating proposed new uses and deciding whether to allow them. The final rule also eliminates exceptions found in prior regulations that: 1) provided a threshold below which notification to EPA of a proposed new use is not required; and 2) permitted the import of goods, such as carpets and furniture, that contain PFAS.[3]

PFAS and COVID-19

A report on the possible effects of PFAS on human health by the Center for Disease Control’s Agency for Toxic Substances and Disease Registry (ATSDR) noted "that exposure to high levels of PFAS may impact the immune system," citing "evidence from human and animal studies that PFAS exposure may reduce antibody responses to vaccines (Grandjean et al., 2017, Looker et al., 2014), and may reduce infectious disease resistance (NTP, 2016)."[4] The ATSDR acknowledged, however, that because "COVID-19 is a new public health concern" and "there is still much we don’t know," further "research is needed to understand how PFAS exposure may affect illness from COVID-19."[5]

State Governments

On July 14, Colorado’s Water Quality Control Commission adopted Policy 20-1, Colorado’s first policy regulating PFAS; it interprets the general water quality provisions of Colorado’s Regulation No. 31.11(1)(a)(iv) and Regulation No. 41.5(A)(1) as requiring monitoring of wastewater treatment plants and industrial sites, as well as allowing the state to place limitations on PFAS in future wastewater permits.[6]

Also, within the past month several states enacted laws to ban the use of firefighting foams containing PFAS. A significant source of PFAS contamination in potable water supplies throughout the country is the use for many years of aqueous film forming foam (AFFF) to extinguish liquid and gas fires[7]. When mixed with water, AFFF – which contains PFAS – produces an aqueous spreading film that can extinguish burning hydrocarbon fuel and prevent re-ignition by cutting the fuel off from oxygen[8].

State laws banning AFFF took effect in Indiana and Minnesota on July 1, and in Kentucky on July 15, 2020. Notably, however, neither Indiana, Minnesota, nor Kentucky has established maximum contaminant levels for PFAS in drinking water.[9]

Congress

Recent attempts to enact legislation to address PFAS contamination remain largely stalled. The PFAS Action Act of 2019 passed the House in January 2020 and was referred to the Senate Committee on Environment and Public Works. If passed, the PFAS Action Act would, among other measures, designate PFOS and PFOA as hazardous substances under the Clean Water Act and CERCLA, and require the development of drinking water standards for these PFAS compounds within two years.[10] However, the Senate has taken no further action on the bill as of August 3, 2020.[11]

Seeking a way around the Senate Committee’s inaction, on July 13, Rep. Debbie Dingell (D-MI) filed the text of the PFAS Action Act as an amendment to the Fiscal Year 2021 National Defense Authorization Act.[12] The amendment was ruled out of order by the House Rules Committee.[13] But on July 23, the House adopted a PFAS-related amendment to a different spending bill for fiscal 2021. This amendment would bar the EPA from using Congressionally-authorized funds to withdraw its proposed rule categorizing PFOS and PFOA as hazardous substances under CERCLA.[14]

[1] https://www.jdsupra.com/legalnews/epa-publishes-finalized-pfas-54401/; https://www.epa.gov/sites/production/files/2020-06/documents/10010-44_prepubcopy_fr_doc_epa_admin_esign_2020-06-22final.pdf.

[2] Based on the length of the fluorinated carbon chain, PFAS compounds can be distinguished as either long chain or short chain. Long chains refer to perfluorocarboxylic acids (PFCAs) with carbon chain lengths of C8 and higher, including perfluorooctanoic acid (PFOA).

[3] https://www.jdsupra.com/legalnews/epa-publishes-finalized-pfas-54401/.

[4] https://www.northcarolinahealthnews.org/2020/07/13/research-suggests-link-between-pfas-contamination-and-the-coronavirus/; https://www.atsdr.cdc.gov/pfas/health-effects/index.html.

[5] Id.

[6] https://www.cpr.org/2020/07/14/colorado-water-officials-create-first-ever-regulations-for-forever-chemical-pfas/; https://drive.google.com/file/d/119FjO4GZVaJtw7YFvFqs9pmlwDhDO_eG/view.

[7] Interstate Technology Regulatory Council, "Aqueous Film-Forming Foam (AFFF)," https://pfas-1.itrcweb.org/wp-content/uploads/2019/03/pfas-fact-sheet-afff-10-3-18.pdf, 1.

[8] Id.

[9] https://aboutblaw.com/Rvj.

[10] https://www.congress.gov/bill/116th-congress/house-bill/535/text.

[11] https://www.congress.gov/bill/116th-congress/house-bill/535/text.

[12] https://www.theintell.com/news/20200715/house-reps-renew-push-for-pfas-drinking-standards; https://debbiedingell.house.gov/news/documentsingle.aspx?DocumentID=2564.

[13] https://www.michiganadvance.com/2020/07/20/dingell-pans-dem-led-committee-for-axing-pfas-cleanup-from-defense-bill/.

[14] https://news.bloomberglaw.com/environment-and-energy/house-adopts-pfas-water-loan-amendments-to-epa-spending-bill; https://www.congress.gov/bill/116th-congress/house-bill/7608.