PFAS: The Rising Tide of Regulatory Compliance and Litigation Risks

EPA Strengthens Focus on PFAS

Late last month, U.S. EPA finalized a rule requiring current and historical manufacturers and importers of perfluoroalkyl substances (PFAS) and PFAS-containing materials to report on PFAS uses, production volumes, disposal, exposures, and potential hazards.¹ And in early 2024, EPA will finalize a proposed rule designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).² The agency also stated that it may designate four additional PFAS compounds under CERCLA, including the GenX compound HFPO Dimer Acid (HFPO-DA). EPA promoted this measure as a “key commitment” under its PFAS Strategic Roadmap.³

According to the Spring Regulatory Agenda, EPA will propose a rule designating PFOA, PFOS, GenX, and perfluorobutane sulfonic acid (PFBS) as “hazardous constituents” under the Resource Conservation and Recovery Act (RCRA). This designation is significant: EPA may deem solid waste containing a “hazardous constituent” to be “hazardous waste” after accounting for factors such as the constituent’s toxicity, concentration, environmental persistence, and bioaccumulation.⁴ RCRA empowers EPA with “cradle to grave” control over hazardous waste, including enforcement powers such as inspections, testing, compliance orders, and penalties.⁵ The proposed CERCLA and RCRA designations could also generate citizen suits to obtain injunctive relief, civil penalties, and litigation costs from companies. The proposed CERCLA rule is expected to be finalized in February 2024, and EPA has not disclosed a timeline for the proposed RCRA rulemaking.

States are also encouraging federal action. In May, seventeen state attorneys general commented in support of EPA’s proposed national primary drinking water standard for PFOA and PFOS,⁶ which is estimated to be finalized by January 2024.⁷ The attorneys general urged “swift regulatory action” by the EPA.

State Agencies Bolster PFAS Regulations

Many state agencies are also aggressively pursuing PFAS regulatory agendas. These include imposing drinking water limits, requiring disclosure and reporting of PFAS in consumer products, and banning the intentional addition of PFAS compounds. For example, after 2030, Maine will ban the sale of any products in which PFAS were intentionally added, with limited exceptions.⁸ In July, California’s EPA published proposed public health goals for PFOA and PFOS in drinking for public comment.⁹

Some states are regulating PFAS beyond PFOA and PFOS. In New York, the Department of Health proposed maximum containment levels for perfluorodecanoic acid (PFDA), perfluoroheptanoic acid (PFHpA), perfluorohexane sulfonic acid (PFHxS), and perfluorononanoic Acid (PFNA). The proposal would also mandate giving notice to property owners where water contamination levels exceed statutory limits for nineteen other PFAS.¹⁰

EPA Ramps Up PFAS Enforcement

These and similar regulatory efforts may heighten business and legal risk. For example, earlier this year, the EPA—enhancing its enforcement efforts—executed the “first-ever federal Clean Water Act enforcement action” to address PFAS discharges from the Chemours Company’s Washington Works facility in West Virginia.¹¹ The consent order mandates that Chemours “implement an EPA-approved sampling plan to analyze PFAS” and propose a plan to “minimize the discharge of PFAS.”¹² EPA will “use every enforcement tool … to compel manufacturers to characterize, control, and clean up ongoing and past PFAS contamination.”¹³ This summer, EPA’s Office of Enforcement and Compliance Assurance announced plans to focus enforcement efforts on PFAS manufacturers and commercial users.¹⁴ However, under this initiative, EPA would not “pursue entities where equitable factors do not support CERCLA responsibility, such as farmers, water utilities, airports, or local fire departments.”¹⁵

Environmental Organizations Sue EPA to Compel Action on PFAS

Several environmental groups have argued that EPA has not gone far enough in PFAS regulation. Non-profit groups sued EPA alleging that data regarding the release, use, and manufacture of PFAS was being underreported under the Emergency Planning and Community Right-to-Know Act.¹⁶ The plaintiffs further allege that EPA arbitrarily and capriciously exempted companies from reporting de minimis concentrations of PFAS and setting alternate threshold exemptions. The court has stayed proceedings pending forthcoming rulemaking on reporting requirements.

In another case, environmental groups sued EPA to enforce a petition to require Chemours to conduct health and environmental testing of 54 PFAS in North Carolina. The groups argued that the EPA had effectively denied the petition because it directed Chemours to test for fewer than all of the requested PFAS. The environmental groups’ subsequent action to compel EPA to require the full scope of health and environmental testing was dismissed for lack of jurisdiction.¹⁷ Though the court had statutory authority to “force EPA to initiate proceedings to issue rules and orders”—which the agency had done—the court lacked jurisdiction to “dictate EPA’s proceedings or the substance of specific rules or orders”—as the environmental groups requested.

EPA has also defended some of its regulatory efforts from legal challenges. Last year, the American Chemistry Council (ACC) petitioned the D.C. Circuit Court of Appeals to vacate EPA’s interim drinking water health advisories for PFOA and PFOS.¹⁸ The court dismissed that challenge for ACC’s lack of standing, without ruling on the merits. Separately, Chemours challenged EPA’s health advisory for another PFAS—GenX—as scientifically flawed, exceeding its statutory authority, and violating constitutional limits on congressional delegation.¹⁹ Though EPA moved to dismiss the petition, arguing that the health advisory was “merely advisory” and “informational” and thus Chemours lacked standing to challenge it, the Third Circuit rejected that argument and allowed the challenge to proceed. The petition’s merits arguments have been briefed and remain pending.

Plaintiffs Leverage Regulatory Actions to Their Benefit in Tort Litigation

Recent pretrial motions in a case over a municipality’s economic costs to investigate and remediate PFOA in municipal water²⁰ show that plaintiffs will use even interim or proposed EPA statements as evidence to support their claims. In advance of trial, the municipality plaintiff persuaded the court to allow it to introduce EPA’s proposed rulemaking on PFOA and PFOS as evidence of the reasonableness of the plaintiff’s efforts to remove PFAS from the water supply.²¹ The plaintiff also prevented the defendants from introducing evidence challenging EPA’s health advisory limits for PFOA and PFOS, as EPA’s process for setting the advisory limits was not at issue in the case.²²

These arguments will likely recur. Since early May, at least seven state attorneys general and the attorney general for the District of Columbia have sued companies that made and used PFAS.²³ The cases reference EPA’s proposed maximum contaminant levels under the Safe Drinking Water Act and interim health advisories for certain PFAS. Many of the cases also refer to EPA’s proposal to designate PFOA and PFOS as hazardous substances under CERCLA.

As the governments and plaintiffs remain focused on PFAS, businesses and other stakeholders that manufactured or used PFAS should expect to face increasing risk of costs and potential litigation from private and public actors. Regulatory initiatives and general litigation trends often converge. Just as New York has proposed drinking water regulations for additional PFAS (i.e., PFDA, PFHpA, PFHxS, and PFNA), private litigants seek to obtain medical monitoring and scientific testing for individuals exposed to many of the same PFAS.²⁴ Likewise, as states seek to ban PFAS in disposable food containers, the plaintiffs’ bar continues to file consumer actions about the marketing of disposable food containers and packaging.²⁵ Such trends will likely continue and grow in prominence.