The Current State of PFAS Regulation and Litigation: What You Need to Know

PFAS substances are becoming increasingly newsworthy and front-and-center for federal and state environmental lawmakers and PFAS-specific regulations are evolving. More immediately, private litigation continues to grow and has been occurring even without PFAS-specific regulations. Antea Group PFAS experts got together with David Edelstein, Partner at Vorys, Sater, Seymour, and Pease LLP, in a recent webinar to explore the regulatory status surrounding PFAS as well as the litigation environment.

If you missed the webinar, you can still watch it on-demand!

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Why Do We Care?

You’ve likely heard about PFAS from news, books, documentaries, and even movies. You may have heard PFAS referred to as “forever chemicals” due to the fact that these chemicals are difficult to break down, treat and some have half-lives in the decades!

The combination of the long life of the chemicals and the fact that they are highly mobile in air and water, means that we are all being exposed to PFAS on a regular basis. While studies are still being conducted, past studies have linked PFAS with certain animal and human health effects. These health effects are one of the major reasons why PFAS are gaining so much attention.

Some of the health effects include:

• Cardiovascular disease
• Altered liver function
• Chronic kidney disease
• Difficulty becoming pregnant
• Osteoarthritis

In addition, PFOA is classified as “possible carcinogenic” for prostate, testicular, bladder, liver, or kidney cancer. (U.S. EPA 2017) (U.S. EPA 2018). For a more in-depth look at what PFAS are and their risks and benefits, check out this recent blog.

Knowing the potential health effects and their widespread use, it becomes clear why conversations around PFAS are gaining so much momentum and why regulations and litigation are heating up.

Regulatory Status Update

As PFAS regulations continue to evolve, it’s important to keep an eye on new and updated regulations. Below are a few rules and regulations to keep an eye on in the coming months.

PFAS Action Act of 2021

This bill passed in the House on July 22, 2021 and is currently awaiting Senate and President approval before becoming law. The U.S. Senate Committee on Environment and Public Works (EWP) held a hearing on October 20, 2021 to evaluate this act and the Federal responses to PFAS on the environment.

This act includes 18 proposed rules includes CERCLA hazard waste designation under CERCLA, setting maximum contaminant level (MCL) standards under the Safe Drinking Water Act, hazardous pollutant designation under the Clean Air Act, additions to wastewater discharge permits under Federal Water Pollution Control Act, additional reporting under the Toxic Substances Control Act, and a number of significant other U.S. EPA rules.

Federal Water Pollution Control Act

This act proposes a requirement to manufacturer or user to disclose a discharge of PFAS to water treatment works prior to discharge.

Draft Method 1633

This draft analytical method was published by the EPA in September of 2021 and will be key to passing and implementing several of the proposed Federal and state PFAS regulations.

It includes the analysis of PFAS in aqueous, solid, biosolids, and tissue samples by LC-MS/MS. This method tests for 40 PFAS substances in eight environmental media: wastewater, surface water, sediment, groundwater, leachate, soil, bio-solids, and fish tissue.

Retroactive Reporting Rule for PFAS

Under this Toxic Substance Control Act (TSCA) rule, articles required for reporting include products and all articles containing PFAS. Reporting applies to companies that used or incorporated PFAS in articles, manufacturing or imported products or components that included PFAS since January 1, 2011, a 10 year look back

Food and Drug Administration

In July 2021, the FDA announced voluntary agreement to phase out short-chain PFAS. The agreement is for a three-year phase-out and includes the following:

• 6:2 fluorotelomer alcohol (6:2 FTOH)
• 6:2 FTOH is now in 15 food packaging products supplied to the U.S.

In addition to the changing rules and regulations surrounding PFAS, businesses should keep an eye on changing trends in litigation.

Litigation Update

In the past, PFAS-related litigation primarily focused on private party personal injury litigation against major PFAS manufacturers. In the past, manufacturers have also been sued by investors for failures to disclose PFAS liability. As regulations around PFAS continue to grow, we will likely see an increase in these types of lawsuits.

Looking to the future, PFAS litigation will likely expand even further through regulatory enforcement under one of the major environmental statutes. This includes citizen suits, discharge limits, drinking water standards, and remediation actions.

When it comes to litigation and dealing with PFAS issues, there are a few key notes to keep in mind. In dealing with public affairs, remember, protections are NOT retroactive – once it’s out, you can’t put it back in. It is crucial to keep internal communications, drafts, and other documents just that, internal.

With the EPA adding additional PFAS to TRI list in the future, consider proactive audits to “get ahead” and protect those communications. Remember, the EPA publishes all TRI data after it is collected.

So, What Now?

The conversations around PFAS won’t be going away soon, and we can expect to see trends around litigation and regulations continue to grow. That being said, the biggest takeaway is to be proactive. Start by understanding where your company stands with PFAS and know your risks. Utilize a desktop screening tool to evaluate your existing and potential risks. From there, you can begin to prepare for new regulatory drivers and litigation framework.

About Antea Group:
Antea Group is an international engineering and environmental consulting firm specializing in full-service solutions in the fields of environment, infrastructure, urban planning, and water. By combining strategic thinking and multidisciplinary perspectives with technical expertise and pragmatic action, we do more than effectively solve client challenges; we deliver sustainable results for a better future. We serve clients ranging from global energy companies and manufacturers to national governments and local municipalities. Learn more at https://us.anteagroup.com.