Chemical Industry Regulatory Update – January 2020: PFAS Regulation and Sampling Continue to Heat Up

Thompson Hine LLP
Joel D. Eagle

January 9, 2020

An update to this publication was released on January 21, 2020.

It is a question we’ve heard so much recently: Are per- and polyfluoroalkyl substances (PFAS) really everywhere? The answer is certainly “yes” if measured by the flurry of recent federal and state “action plans” and proposed statutory and regulatory changes (including the proposed federal “PFAS Action Act of 2019” discussed below); Hollywood movies (“Dark Waters”); streaming documentaries (Netflix’s “The Devil We Know”); and a nearly constant flood of media coverage about PFAS. If the metric is the confirmed presence of PFAS in the environment through sampling, then the jury is still out. But extensive ongoing and planned nationwide groundwater and drinking water supply system sampling and investigations at known or suspected contaminated sites, will help answer whether PFAS are really everywhere.

Throughout 2019, the pace of actions to evaluate or address PFAS was overwhelming and is not showing signs of slowing down in 2020. One of the most recent and comprehensive steps occurred at the end of 2019, when the United States House Committee on Energy and Commerce passed H.R. 535, the “PFAS Action Act of 2019.” The comprehensive bill contains 18 chapters that cover nearly every environmental statute and media that PFAS may impact. It is the first major legislation of any kind that the House is taking up in January 2020 could be subject to a prompt vote in the House. The bill may face greater obstacles in the Senate, but if passed, the law would designate two PFAS compounds, perfluorooctanoic acid and its salts (“PFOA”) and perfluorooctanesulfonic acid and its salts (“PFOS”), as “hazardous substances” under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). This development alone could have extensive downstream implications for potential site remediation and corresponding funding decisions and liability under CERCLA and other environmental laws.

In addition to CERCLA, the PFAS Action Act would amend several other laws pertaining to water discharges, water supplies, water bodies under the Clean Water Act, air emissions (Clean Air Act), site remediation (waste and cleanup laws – CERCLA and RCRA), reporting and data collection (EPCRA) and toxic substance regulation (TSCA). The House is expected to vote on the PFAS Action Act bill by mid-January 2020.

The PFAS Action Act committee vote concluded a busy 2019 in the PFAS world. In February 2019, the United States Environmental Protection Agency (EPA) issued the federal PFAS Action Plan in February 2019, setting out a series of proposed EPA actions to further evaluate PFAS’ potential nature and extent in the environmental, possible health effects from many of the PFAS family of compounds, and future statutory and regulatory changes (to name but a few of the proposed actions). Many states are implementing their own plans, both in coordination with the EPA and on their own. Late in 2019, Ohio and Connecticut became two of the most recent states to issue state-led Action Plans to evaluate the extent to which PFAS may be present in public and private drinking water systems. Read more here for additional updates and analysis of the Ohio and federal action plans.

PFAS compounds are commonly referred to as “ubiquitous” in the environment. If proven true, the impacts to the regulated community, municipalities and private parties could be extraordinary. Recent litigation and nine-figure settlements in several states have already demonstrated one of the impacts that PFAS can have. As the developments described above continue to unfold in 2020, the possible ramifications these “forever chemicals” may have on businesses, governments and individuals will surely crystalize.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Eagle and may not reflect the opinions of Synergy Environmental, Inc., Thompson Hine LLP or either of those firms’ clients.

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