There are few certainties leading up to this year’s presidential election, but it’s a good bet that questions surrounding PFAS in groundwater—particularly the fate of federal regulations about so-called “forever chemicals"—could be answered soon if Joe Biden is elected.
The former vice president’s environmental plan specifically includes language about designating per- and polyfluoroalkyl substances, commonly referred to as PFAS, “as a hazardous substance,” and setting enforceable limits for PFAS in the Safe Drinking Water Act.
This comes after the Trump administration in 2019 moved forward with a PFAS action plan—but as yet no regulations.
Significantly, the administrative efforts taken to regulate PFAS during the Trump administration (and even before) could position the Environmental Protection Agency to be able to move quickly next year, delivering a quick win for a Biden administration.
That win could loom large on the environmental front, especially when some of Biden’s other goals, notably related to climate change, could take much longer to implement given normal administrative and rulemaking procedures.
For companies facing possible legal action because of PFAS issues—which might stem from actions taken decades ago—potential regulations mean that it is time to get their houses in order, understand the issues and know what to watch for this November and beyond.
Known for durability and their use in everything from take-out containers to flame-retardants, PFAS can get into groundwater and lead to a host of health issues.
In recent years and without federal direction, some states have put enforceable standards in place while others await federal action. Several states are prohibited by their own laws from establishing drinking water limits more stringent than the EPA’s.
Until the EPA can promulgate a drinking water standard, “we have little to no authority to require monitoring, reporting, publication, notification, treatment, those types of things,” Jerri Henry, administrator of the drinking water division of Idaho’s Department of Environmental Quality, said in August.
Those events could be put in motion more quickly under Biden, should he follow through on his plans. It’s possible, too, that if Trump is re-elected the EPA will move forward on regulating PFAS. But Biden appears poised to go faster and further. For instance, his plan also mentions “prioritizing substitutes through procurement,” a likely nod to using the federal government’s purse strings to push along PFAS alternatives.
PFAS Movement Is Already Starting, So Get Ready
While the movement toward PFAS regulation has been slow, early signs of where things are headed are popping up beyond the actions of select states.
Notably, municipal wastewater treatment facilities increasingly have sought information on PFAS from customers by way of detailed questionnaires, especially to industrial users. Some wastewater treatment facilities have even started putting PFAS-limits and monitoring requirements in permits. Both trends would likely accelerate with a federal standard.
Moves in this direction don’t comprise a situation where regulatory certainty—as opposed to a patchwork of different state regulations—is something companies facing possible PFAS liability would celebrate. But with regulation looming, there are things companies can and should do now.
The first step is being plugged in on PFAS developments and it goes beyond monitoring local, state and federal developments. Companies can and should participate in public rulemaking, which will likely accelerate in states after the EPA acts.
Going a step further, engaging in formal lobbying can help, as can a fully coordinated strategy that involves public relations and legal counsel, who should have a handle on developing regulations across jurisdictions.
It’s also important to get your arms around any possible contamination and vulnerabilities. Know the limits of coverage from an insurance perspective and evaluate what entities around you might be or have been PFAS sources. The fact that we’re dealing with something called “forever chemicals” means parties involved could have put PFAS in groundwater decades ago.
Learning From the Recent Past
Biden’s plan also mentions addressing the presence of lead in drinking water. That specific issue rose to prominence after problems in Flint, Mich., made national news in 2014. Not surprisingly, Michigan has embraced PFAS in groundwater regulation in recent years.
While public awareness of PFAS in groundwater is not on par with public awareness of lead issues, a high-profile incident—one in which it becomes clear that public officials failed to act despite knowing of dangerous PFAS levels in groundwater—could change things. It would mean regulation around PFAS in groundwater could be accelerated regardless of who is in the White House.
Based on what we’re already seeing from several state regulators, and based on the practices of local wastewater operations , there is a good chance that increased PFAS pressure will continue in the very near future. At this point, it’s just a matter of time.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Allyson Cunningham, a partner at Lathrop GPM LLP in Kansas City, Mo., focuses her practice on representing clients in administrative negotiations with federal and state agencies. She advises clients regarding their regulatory requirements and assists with litigation of environmental claims.
Sarah Lintecum is an associate at Lathrop GPM who focuses her practice on insurance coverage and environmental law. Her experience includes representing clients in administrative negotiations with the EPA and state agencies; advising clients regarding regulatory requirements; and assisting in litigation of environmental claims, including claims under the federal Superfund law.
Grant Harse is an associate at Lathrop GPM LLP who focuses his practice in environmental and natural resources law, with significant experience working with Kansas agribusiness regulations. He has a strong environmental background with relevant experience in both state and federal government.