Vermont Law Top 10 Environmental Watch List for 2020

Moving the Needle on PFAS Regulation

With little hope for significant movement by EPA or Congress, the PFAS issues to watch during 2020 will likely happen at the state level.

The “Forever” Chemicals

The phrase “you have it in you” is typically used to inspire. It is not something you want to hear about toxic chemicals. Unfortunately, an estimated 99.7% of Americans have measurable concentrations of a now-ubiquitous class of toxic chemicals in their blood known as per- and polyfluoroalkyl, or PFAS.

PFAS are incredibly stable, making them highly resistant to heat and chemical reactions. For decades, two PFAS chemicals, PFOA and PFOS, were used to manufacture products like non-stick cookware and stain-resistant carpeting. PFAS are also used in waterproof clothing, stain resistant carpeting, various types of food packaging, and hundreds of other products. They are also a key ingredient in aqueous film forming foam (AFFF) used at airports and military bases to fight high-temperature fires. However, the same chemical properties that make PFAS useful in industry also make them persist in the environment and bioaccumulate in wildlife and humans, earning them the moniker “forever chemicals.”

Although PFAS have been widely used since the 1950s, the public only began understanding their risks in the 2000s as a result of a private lawsuit against DuPont on behalf of residents living near a plant that manufactured PFOA. The litigation uncovered internal company records showing that DuPont knew of PFOA’s significant health risks but withheld the information from regulators and the public. The parties reached a settlement under which DuPont agreed to fund a panel of independent experts who conducted epidemiological studies for affected residents. The studies linked PFOA exposure to cancer, thyroid disease, ulcerative colitis, and other adverse health effects. As public concern grew, so too did the push for environmental monitoring near likely PFAS sources. Testing revealed PFAS contamination in communities across the country, often near military bases that used AFFF and factories that manufactured products using PFAS.

Efforts to protect public health and the environment from PFAS have been hampered by major gaps in both federal and state law and the Environmental Protection Agency’s (EPA) unwillingness to act. At the federal level, EPA has left PFAS essentially unregulated, having just developed an “Action Plan” for PFAS in February 2019 despite having strong evidence linking PFAS exposure to adverse health impacts for almost two decades. For example, EPA has not established mandatory drinking water standards for PFAS chemicals under the Safe Drinking Water Act. Instead, EPA issued nonbinding “health advisories” for PFOA and PFOS (another PFAS chemical) of 70 parts-per-trillion (ppt) in drinking water. EPA’s authority to remediate PFAS contamination is also limited under the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as “Superfund,” because PFAS chemicals are not considered “hazardous substances” that trigger cleanup. The Clean Water Act has also proven ineffective because EPA does not require limits on PFAS discharges into streams or rivers.

EPA has only sparingly used the Toxic Substances Control Act (TSCA) to address PFAS concerns. EPA used its authority in the mid-2000s to obtain a seemingly inconsequential $10.25 million settlement against DuPont for failing to report information about PFOA’s substantial risks. EPA has not, however, exercised its authority to ban or restrict the use of PFAS chemicals in commerce. It has issued “significant new use rules” (or SNURs) that would require risk review for “new” uses of certain PFAS compounds that industries voluntarily phased out before the regulation took effect.

A Congressional Response?

Congress is currently considering legislation to address PFAS. In July 2019, the House of Representatives passed H.R. 2500, the National Defense Authorization Act (NDAA), that would phase out the military’s use of AFFF, designate PFAS chemicals as “hazardous substances” under the Superfund statute and define PFAS as toxic pollutants under the Clean Water Act. While there is some bipartisan support, the bill is facing significant headwinds. EPA Administrator Andrew Wheeler opposes designation of PFAS chemicals as “hazardous substances,” arguing that EPA would be responsible for the untenable cleanup of over 5,000 different PFAS chemicals if they are officially designated as hazardous substances under the proposed amendment. Wheeler also thinks that the regulations and cleanup mandates would not be feasible because EPA would not be able to acquire the technology needed to clean up the chemicals within the proposed deadlines.

While there is bipartisan support for PFAS regulation in Congress, recent news reports indicate that those provisions have been stripped from the final version of the bill. With impeachment and the 2020 election dominating Congress during the coming year, the once promising possibility of meaningful PFAS legislation now seems unlikely.

State Regulation, Lawsuits, and Industry Pushback

In the absence of federal action on PFAS, several states are attempting to fill the void. Prompted by extensive PFAS contamination in its drinking water, New Hampshire established some of the strictest PFAS limits in the country. Industries likely to bear the cost of complying with these limits are pushing back, however. A New Hampshire water and sewer district, 3M, and others sued New Hampshire’s Department of Environmental Services (DES), alleging that it failed to conduct an adequate cost-benefit analysis. The judge issued a preliminary injunction that temporarily stops DES from implementing the new rules while the case is pending.

Right next door, Vermont passed comprehensive a comprehensive bill regulating PFAS following the discovery of PFAS contamination in the state. The law, Act 21, requires PFAS monitoring for drinking water and places a combined limit of 20 ppt on five PFAS chemicals. If the results exceed the standard, water providers must take steps to reduce levels and issue a “do not drink” notice until levels are below the standard. The law also requires Vermont’s Department of Environmental Conservation to establish PFAS surface water quality standards and consider regulating the entire class of PFAS chemicals.

Vermont, New Hampshire, and other states are also suing PFAS manufacturers over PFAS contamination.  But these lawsuits will take years to resolve.

Michigan, where 192 PFAS contamination sites have been identified (the most of any state), has also taken steps to regulate PFAS. Michigan regulators have proposed strict drinking water standards for several PFAS, including 8 ppt for PFOA and 16 ppt for PFOS. The rules are potentially on track to be finalized by April of 2020.

Looking Forward

With little hope for significant movement by EPA or Congress, the PFAS issues to watch during 2020 will likely happen at the state level. States like New Hampshire, Vermont, and Michigan will continue moving forward with efforts to regulate PFAS. As those efforts progress from setting standards to requiring actual treatment, onlookers should expect legal fights over the treatment, including challenges from the regulated community and lawsuits from state attorneys general aimed at holding PFAS manufacturers liable.