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Regulators in the United States and Europe Move to Restrict PFAS in Products and Wastes

In Short

The Background: In recent years, the scientific and regulatory communities have paid increasing attention to per- and polyfluoroalkyl substances ("PFAS"), which have been common components for decades in consumer and industrial products and manufacturing processes. This focus has come with increasing concerns about the potential risks these chemicals may pose to human health and the environment, and about the potential extent of PFAS contamination in soil, surface and groundwater, and drinking water. 

The Situation: Regulators in the United States and Europe have had an active year in 2020 when it comes to PFAS. The United States Environmental Protection Agency ("EPA") and regulators in California and European Union Member States have adopted or are considering new requirements to address PFAS in waste water and storm water discharges, drinking water, spills and releases, and a variety of products. 

Looking Ahead: 2021 likely will bring significant new developments for the regulation of PFAS, as the current regulatory actions unfold and regulators look for new ways to address these chemicals. 

Environmental agencies in the United States and Europe have taken significant steps in 2020 to expand their regulation of PFAS. PFAS are a group of synthetic chemicals with a long history of commercial and industrial uses in products ranging from food packaging, cookware, fire-fighting foams, coatings, and cleaners. In recent years, regulators' attention to these chemicals has increased due to concerns of potential health risks from exposure and the persistence of these chemicals in the environment. This Commentary discusses recent developments and next steps for the regulation of PFAS and the likely effects on businesses.

U.S. EPA Issues Interim Strategy for Wastewater Discharge Permits

On November 22, 2020, EPA issued an interim strategy for addressing potential discharges of PFAS as part of the federal National Pollutant Discharge Elimination System ("NPDES") permitting process. The strategy recommends that federal NPDES permit writers consider incorporating requirements for monitoring and control of PFAS into permits when PFAS are expected to be present. The interim strategy calls for monitoring to begin after EPA approves detection methods for PFAS in waste streams, which is expected in 2021. Recipients of federally issued NPDES permits therefore can expect EPA to incorporate new permit requirements as early as 2021. State regulators might follow suit and begin to incorporate similar requirements into state-issued permits.

This action is the latest step to implement EPA's ambitious 2019 PFAS Action Plan, which addresses PFAS in drinking water, cleanup actions, and products. In June 2020, EPA added certain PFAS chemicals to environmental release reporting requirements. In July 2020, it issued new regulations that prohibit the manufacture, import, processing, or distribution of certain PFAS before significant new use review and determination by EPA. Additional regulation seems likely in 2021 and beyond, with President-Elect Joe Biden having pledged to designate PFAS a "hazardous substance" under the Comprehensive Environmental Response, Compensation, and Liability Act and establish an enforceable limit for PFAS in drinking water under the Safe Drinking Water Act.

California May List Perfluorooctane Sulfonate ("PFOS") and Other PFAS Under Proposition 65

California's Office of Environmental Health Hazardous Assessment ("OEHHA") is considering listing PFOS (a PFAS chemical) as a carcinogen under Proposition 65. Proposition 65 requires that a clear and reasonable warning be provided before knowingly and intentionally exposing any person in California to a listed chemical (subject to certain exceptions), and prohibits the discharge of such chemicals to sources of drinking water. Currently, PFOS and perfluorooctanoic acid ("PFOA") are the only two PFAS chemicals listed under Proposition 65, both for reproductive toxicity. OEHHA also is considering listing four additional PFAS chemicals as reproductive toxins. Companies should continue to monitor OEHHA's evaluation process and assess their Proposition 65 warning obligations and any limits on the discharge of PFAS or PFOS-containing wastes to soil, surface water, and groundwater.

California Water Boards Adopt New Screening Levels and Plan Increased Investigations

In May, 2020, the San Francisco Bay Regional Water Quality Control Board issued Interim Final Environmental Screening Levels ("ESLs") for two PFAS: PFOS and PFOA. The Regional Board identified industry sites for possible priority investigations, including semiconductors, electronics manufacturing, mining, and textile manufacturers. The ESLs are advisory and inform agency decision-making about the need for further investigation. Although the San Francisco Bay Regional Board's jurisdiction is limited, other Regional Boards in California consider and rely upon its ESLs in making their own site investigation decisions.

In February 2020, the California State Water Resources Control Board updated its advisory drinking water response levels to 10 ppt for PFOA and 40 ppt for PFOS. These are levels at which the State Water Board recommends considering treatment or removing a drinking water source from service. On July 9, 2020, the State Water Board issued Investigative Orders to hundreds of publicly owned treatment works requiring sampling, analysis, and other disclosures. Similar orders may be issued to oil refineries and bulk terminals in the near future.

The California Department of Toxic Substances Control ("DTSC") Proposes Priority Products With PFAS

Finally, under the Safer Consumer Products program, DTSC has proposed regulations to list carpets, textiles, and leather treated with PFAS as Priority Products, a designation that would trigger requirements for an evaluation of alternatives and possible elimination of PFAS from those products. A final regulation is pending. DTSC also is considering listing food packaging with PFAS as another Priority Product, although it has not yet proposed a regulation.

In Europe, a Rapidly Evolving Legal Framework on PFAS and PFOS

At the European Union level, PFOS are regulated under the EU POPs Regulation (Regulation No 2019/1021). PFOA and its precursors, which were already restricted under the Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH") regulation (Regulation EC 1907/2006), are, since July 4, 2020, restricted under the POPs Regulation. A number of PFAS are also on the REACH list of Substances of Very High Concern, and a group of EU Member States as well as Norway have recently announced their intent to work on a restriction under REACH covering all uses of the whole group of PFAS substances.

Across Europe, certain Member States have already adopted national regulations setting national limit values for PFAS and PFOS in water and soil (Denmark, Germany, the Netherlands, and Sweden), for textiles (Norway), and for food contact materials (Denmark). Several EU Member States have also set drinking water limits for specific PFAS and for groups of PFAS. In France, PFAS in soil and water are regulated through case-by-case risk evaluations and by reference to limit values in other countries.

Jones Day represents Daikin America, Inc. (DAI) and Daikin Industries, Ltd. (DIL) in a growing number of PFAS cases, including in an MDL, a threatened PFAS putative nationwide class action, and attorney general PFAS actions.

Three Key Takeaways

  1. Businesses in the United States and Europe can expect additional regulations, permit conditions, and investigative orders related to PFAS in 2021 and beyond, given the substantial focus by regulators on these chemicals in 2020 and plans for additional actions.
  2. New regulations that have been adopted in 2020 or are under consideration could affect all aspects of operations that touch on PFAS, from the manufacturing, import, and sale of chemicals and products, to waste management and wastewater discharges, to environmental cleanup actions. 
  3. Businesses should identify PFAS in their products, processes, and waste streams and evaluate the effects of new requirements as regulators move to expand the regulation of these chemicals.

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