PFAS Restrictions Taking Hold in the U.S. and Globally: What Should You Be Doing?

Over the last several months, the United States Environmental Protection Agency (U.S. EPA) and many states have made headlines over their increasing regulatory attention to per- and polyfluoroalkyl substances (PFAS)—the latest surge in a series of regulatory actions aimed at protecting the environment and human health from PFAS. PFAS are a group of man-made “forever chemicals,” identified as such because of their persistence and bio-accumulative properties, which have a wide range of uses in various industries, including but not limited to the automotive, construction, clothing, home furnishing, food packaging, and electronics industries. This regulatory attention has left the regulated community with a confusing web of laws and standards to consider, particularly for businesses with global operations and supply chains. This Alert provides a brief overview of recent PFAS regulatory developments, which will be discussed in more detail during our upcoming webinar.

U.S. Regulation of PFAS

Businesses in the U.S. face a patchwork of different PFAS laws—a patchwork that is only expected to expand in the coming years. On the federal level, the U.S. EPA has taken a range of regulatory actions to address PFAS substances in manufacturing and consumer products, including proposed regulations under the Toxic Substances Control Act (TSCA) regarding PFAS recordkeeping and reporting, as well as regulations under the Safe Drinking Water Act (SDWA), Clean Water Act (CWA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). Individual states, including Michigan, Illinois, Maine, and New Jersey, have also begun regulating PFAS in drinking water, groundwater, and products. Complicating matters on the state level is the fact that states have adopted different numerical standards for the same PFAS, making evaluations of PFAS liability exposure difficult to quantify. Moreover, even local sanitary districts are getting involved by requesting information on PFAS from dischargers to their sewer systems.

Global Regulation of PFAS

Businesses with operations or supply chains that extend beyond U.S. borders face an even wider array of PFAS regulations and agreements, as both the international community and individual countries (e.g., China and Canada) take action against PFAS risks. On the international level, the Stockholm Convention on Persistent Organic Pollutants (POPs) requires signatory countries to eliminate (with certain exceptions) the use and manufacture of perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), two PFAS commonly present in aqueous fire-fighting foams. The European Union (EU) has also taken various actions to restrict the manufacture and use of various PFAS—actions with regulatory influence that extends well beyond Europe. These actions include the July 15 announcement by Denmark, Germany, the Netherlands, Norway, and Sweden to the European Chemicals Agency (ECHA) of their intent to prepare a restriction proposal for the manufacture, placing on the market, and use of PFAS. This restriction proposal is expected by July 15, 2022, and the public comment period is open until Sept. 19, 2021.

What Should Affected Businesses Be Doing Now?

Regulation of PFAS going forward, as well as efforts to impose liability for past releases of PFAS, will only increase over the next several months and years, as these new regulatory requirements become final. Companies need to begin evaluating their PFAS liability risks for past releases and considering how future restrictions will impact their operations and/or products. While preparation may vary by company, there are a few common tasks that companies should complete in order to evaluate their short and long-term risks related to PFAS so that the proper mitigation steps may be timely implemented to minimize liability exposure. Companies should:

1. Identify current and legacy PFAS applications in their operations and/or products. The time frame for this investigation should be at least ten years; however, it must be noted that the time frame for potential liability can extend far beyond that for any PFAS eventually designated as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances.
2. Identify the jurisdictions and applicable local regulations that concern their operations and/or products. This may simply be the locations where they operate, but it may also include the locations of suppliers and end-users, as certain requirements may extend both upstream and downstream.
3. Evaluate applicable rulemaking processes that are pending or likely to take place in the near future and strategically participate in public comment or other stakeholder engagement opportunities, such as the EU public comment opportunity mentioned above.
4. Perform a liability assessment and review their insurance policies to determine to what extent these policies cover PFAS liability.

For a more detailed discussion of these and other regulatory developments in the world of PFAS, please join us for our upcoming webinar on Sept. 29. For more specific questions regarding legal strategies for addressing regulatory, legislative, or litigation concerns, please contact a member of Clark Hill’s Environment, Energy, and Natural Resources team.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.