Biden’s ‘Bold’ PFAS Regulation Plan Puts Companies on Notice

The Biden administration’s new plan to regulate “forever chemicals” sends a message to U.S. companies to know what goes into their products or eventually face legal consequences, said attorneys involved in litigation over the substances.

“This is a strong statement that PFAS is going to be heavily regulated from conception to burial,” said Doug Henderson, a partner at King & Spalding LLP in Atlanta.

The White House Monday said it would coordinate efforts across eight federal agencies to reduce PFAS pollution in the air, water, food, and land, with the Environmental Protection Agency setting timelines for specific actions.

Publicly traded companies should be prepared to answer questions from shareholders about whether PFAS is in their products and how regulations could impact their operations, said Henderson.

New Jersey-based environmental attorney Emily Lamond of Cole Schotz P.C., agreed.

“Not as many industries know about their PFAS risk liabilities as they should,” she said. “If you don’t know whether you have PFAS in your operations, now’s the time to find that out.”

In EPA’s Sights

Per- and polyfluoroalkyl substances, or PFAS, includes thousands of chemicals present in industrial and consumer products from electrical wiring to waterproof jackets. The chemicals give products special electrical properties along with heat-, water-, oil, and corrosion-resistance.

But they’ve also been dubbed “forever chemicals” because some can linger for years in the human body and for generations in the environment. High concentrations of certain types of PFAS have been linked to increased risk of cancer and suppressed immune systems.

Companies in the EPA’s initial regulatory eyesight, such as chemical producers, metal finishers, and electroplaters, as well as the textile sector, should already know whether they’re working with PFAS, Lamond said.

It could be years before the EPA publishes final rules outlining what constitutes safe levels of most PFAS. But if an eventual regulation proposed by the EPA’s chemical office includes manufactured goods, it “will capture about every manufacturing industry,” said Stephanie Feingold, a partner at Morgan, Lewis & Bockius LLP, based in Princeton, N.J.

Companies should be working now to understand what’s in their products, essentially an audit of what they receive from suppliers, how they manufacture, what products they ship to downstream users, and what’s in those components, she said.

‘Lot of Caveats’

One of the most pressing questions remains whether the federal government will regulate PFAS chemicals individually, in groups, or target the entire class of substances.

The Biden administration’s regulatory plan targets a couple well-studied types—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—but the research it describes signals to companies that they should expect future regulation on additional substances, said Craig Stanfield, a partner at King & Spalding LLP.

“They want to be going beyond those two types of PFAS and be doing a lot more in terms of collecting data and setting standards,” said Stanfield, who compared EPA’s roadmap to a pebble hitting the water—with its ripples touching ever broader types of PFAS.

The EPA in part committed to that data collection by proactively using the Toxic Substances Control Act and Clean Water Act to gather information that will shape future regulatory decisions.

“I would say it’s a bold plan,” said Ann Al-Bahish, a partner at Haynes and Boone LLP. “There’s a lot of caveats about whether there’s sufficient appropriations for all these plans. That’s stated in several spots. And I think that’s always an issue, right? Is there money to fund all this?”

For Steve Via, the director of federal relations for the American Water Works Association, one of the roadmap’s more striking details is that the EPA expects to publish health advisories by next spring for two PFAS: GenX, or hexafluoropropylene oxide dimer acid and its ammonium salt; and PFBS, or perfluorobutanesulfonic acid.

Health advisory levels communicate what concentrations of a chemical people can have lifelong exposure to without harming their health. States, tribes, and local governments use such advisories to decide whether some action is needed to reduce people’s exposure to a chemical.

But health advisories, as opposed to regulatory goals or limits, are challenging for water utilities to deal with, Via said. Advisories don’t describe the best technology to reduce a chemical or provide a clear timeline for doing so, he said.

‘Collateral Damage’

Regulators wasted no time putting the plan to action. The EPA announced Tuesday that it is accepting submissions from small businesses, nonprofit groups, and local governments for a review panel focused on developing drinking water standards for PFAS.

Not all environmental attorneys welcomed the plans.

“It’s a start, but it’s nowhere near complete,” said Kevin Hannon, the head of Morgan & Morgan’s Toxics and Environmental Litigation Group. Such a plan should have been in place years ago and focus on more chemicals, said Hannon, who previously worked in the EPA’s Office of Toxic Substances.

The EPA said it expects to propose a rule designating PFOA and PFOS as hazardous substances under the federal Superfund law—the Comprehensive Environmental Response, Compensation, and Liability Act—by next spring, and flag additional PFAS under consideration for the same designation.

But Via, whose association represents water utilities, said he’s worried that invoking CERCLA could harm water utilities’ attempts to dispose of the PFAS they remove.

“We’re trying to protect the public by taking the chemicals out, and then, when we dispose of them, we get caught in the same net as the polluters,” Via said. “It’s a bit of a mess.”

The technologies used to remove the chemicals, granulated activated carbon filters or ion-exchange membranes, for example, would become hazardous waste and make utilities a target for litigation, he said.

“The worry isn’t that EPA would target water systems for litigation under CERCLA,” Via said. “But as other parties look for others to pull in, we become collateral damage as CERCLA polluters.”