by Patrick J. Paul and Michael C. Ford
The first few weeks of 2020 have seen regulatory and litigation attention heaped upon what have come to be known as “forever chemicals” or Per-and Polyfluoroalkyl Substances (PFAS), which encompass more than 5,000 chemical substances in total and are found most commonly in household products like nonstick pans, waterproof jackets, water repellent used on carpets and furniture and, perhaps most significantly, utilized in firefighting foam on military bases and at commercial airports.
The following are just a few examples:
The National Defense Authorization Act for 2020 (NDAA), signed into law on Dec. 20, 2019 will prohibit the use of PFAS-containing firefighting foam after Oct. 1, 2024 at military installations and immediately prohibits such firefighting foam in fire-suppression training exercises at those installations.
In addition, effective January 1, 2020, the NDAA adds PFOA and PFOS to EPA’s Toxics Release Inventory Program under Section 313(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA) and requires any facility that manufactures, processes, or uses greater than 100 lbs. of PFAS annually to report PFAS releases and disposal. On January 16th, EPA added 160 such PFAS chemicals to that list.
Also, President Trump on January 7, threatened to veto PFAS legislation pending in the House. H.R. 535, the PFAS Action Act, would set deadlines for EPA to reduce ongoing PFAS releases and further set a drinking water standard for the two most common PFAS chemicals – PFOA and PFOS.
At the state level, Michigan filed a lawsuit against 17 PFAS manufacturing defendants seeking damages attributable to PFAS-related contamination, claiming that the manufacturing defendants knew PFAS are toxic and pose significant human health and environmental risks but intentionally concealed this information from Michigan and its residents.
The Colorado legislature introduced HB 20–1119 to address the authority of the state to regulate PFAS, including when PFAS may be used for firefighting foam system testing and clarifying that the state water quality control commission may set standards related to PFAS in surface and groundwater and further may require wastewater systems to collect and report PFAS data designed to assist the state in setting PFAS standards.
In New Hampshire, the state senate voted unanimously on January 14th to pass legislation designed to codify protective standards for PFAS in drinking water.
In Wisconsin, on January 15th, the Wisconsin Department of Health Services and Natural Resources issued advisories to limit consumption of fish caught in two local water bodies after tissue samples showed high levels of PFAS.
In North Carolina, on January 17th, an alliance of established advocacy groups, community leaders and others working to restore water quality within the state joined a petition asking EPA to consider PFAS as hazardous waste.
In Minnesota, on January 17th, the Minnesota Pollution Control Agency and the Minnesota Department of Health announced the discovery of elevated levels of PFAS in creeks in Washington and Ramsey counties.
Locally, here in Arizona, on January 7th, the Tucson City Council voted to direct its Water Department to take measures required to “protect public health” from PFAS contamination and is currently pushing for federal legislation that would allocate funds for it and other cities to remediate PFAS contamination and to reimburse it for the $1.75 million already expended toward cleaning up PFAS contamination. The Council’s directive to protect public health will require designing treatment plants to prevent PFAS-tainted groundwater from reaching two key parts of the city aquifer – the city’s central well field north of Davis-Monthan Air Force Base and the south side well field which is a source of lesser-contaminated water to a treatment plant for cleanup.
In summary, the flurry of activity at the state and local level is forcing the hand of the federal government to take action to address PFAS contamination nationwide even against the backdrop of threatened vetoes of related federal legislation.