The PFAS Problem and the Transition to the Biden Administration
PFAS regulation is one of the hot environmental topics and a key issue to watch during this next year. In this series of posts, V&E will address the increasing regulatory attention concerning a group of chemicals known as PFAS and the potential impacts this may have on affected industries.
Per- and polyfluoroalkyl substances (“PFAS”) are not usually the first among topics we think of in relation to presidential elections and campaign trail promises. And, while talk of regulating PFAS is nothing new — the Environmental Protection Agency, states, and Congress have all been paying increased attention to the issue in the past several years — these substances are certainly an early priority for the incoming administration. In his plan to address environmental justice and equitable economic opportunity,1 President-elect Joe Biden pledged to “improv[e] water quality in a comprehensive way,” including an express and direct mention of addressing water contaminated with PFAS.
What are PFAS?
Known more colloquially under the moniker “forever” chemicals because of their tendency to accumulate and avoid breaking down, PFAS — to include perfluorooctanoic acid (“PFOA”), perfluorooctane sulfonate (“PFOS”), and GenX chemicals, among others — have been manufactured and used across the globe for many decades. These “very persistent” man-made chemicals have been linked to adverse human health effects including cancer, thyroid hormone disruption, negative impacts on the immune system, low infant birth weights, and increased cholesterol levels.2 The chemicals can be found in a number of sources such as food, drinking water, and commercial household products. Although there have been phase-outs of some PFAS chemicals, including the cessation of manufacturing in the United States of PFOA and PFOS, these are still produced internationally and are imported into the United States in consumer goods.3 Such imports include plastics, textiles, carpet, and rubber.
People can be exposed to PFAS in several ways. For example, the EPA explains that people can be exposed to low levels of PFAS through food which has become contaminated from packaging, equipment used during processing, or through the soil and water used to grow the food. Consumer goods are also a source of PFAS exposure; for example, carpets, leather, non-stick cookware, and packaging materials. Perhaps most notable is that the EPA reports PFAS can be found in contaminated drinking water; the EPA details that this is typically on a local scale and associated with a specific facility such as an oil refinery or airfield where PFAS were/are used.4
How will the transition to the Biden Administration impact PFAS?
The Biden-Harris administration has signaled action on PFAS as a priority. Based on the president-elect’s campaign statements, one starting point could be setting PFAS drinking water limits under the Safe Drinking Water Act. This could also lead to additional, or at least more heightened, scrutiny of the sources of PFAS in drinking water. The new administration has also signaled the potential inclusion of PFAS in the definition of “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).5 This would have transformational ramifications on the CERCLA landscape given that responsible parties for PFAS contamination would face strict, joint, and several liability for PFAS releases, both present and past. There have also been some legislative proposals to achieve the same end. Although none have become law, there may be renewed interest in such legislation under a Democrat-controlled Congress.6
President-elect Biden’s environmental justice plan also included other means of addressing PFAS; notably, increasing research and accelerating toxicity studies on PFAS alongside prioritizing the procurement of PFAS substitutes. The Biden-Harris administration’s commitment to addressing PFAS is perhaps most apparent in the president-elect’s nomination of Michael Regan as administrator (head) of the EPA. Much attention has been paid to Regan’s experience and knowledge pertaining to PFAS. During his tenure leading the North Carolina Department of Environmental Quality (“NC DEQ”), NC DEQ reached an agreement with Chemours Co. to address PFAS-related contamination along the Cape Fear River.7 In 2019, the NC DEQ ordered significant additional actions as part of the next phase in the cleanup of residual contamination.8 In responding to the nomination, colleagues and supporters have claimed that “few people know more about PFAS” than Regan.9 Thus, as EPA Administrator, Regan can be expected to both be well poised and strongly interested in addressing PFAS.
Last year (2020) proved quite active for PFAS with significant steps taken to expand regulation both in the United States and in Europe. In our upcoming posts, we’ll summarize these recent developments, as well as further discuss expected changes for the next year. 2021 looks to build upon 2020’s foundations and affected businesses can expect additional regulations and conditions related to PFAS. With the Biden-Harris administration set to take office very shortly, this next year will likely confirm that changes are afoot in the PFAS regulatory landscape.
1 The Biden Plan to Secure Environmental Justice and Equitable Opportunity, Biden for President, https://joebiden.com/environmental-justice-plan/ (last visited Jan. 7, 2020).
2 PFOA, PFOS and Other PFASs: Basic Information on PFAS, EPA, https://www.epa.gov/pfas/basic-information-pfas (last visited Jan. 7, 2021).
5 In its PFAS Action Plan, the EPA noted that it had “initiated the regulatory development process for listing PFOA and PFOS as CERCLA ‘hazardous substances’ using available statutory mechanisms.” EPA, Report No. EPA 823R18004, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan 28 (Feb. 2019).
6 On January 10, 2020, the House passed a Bill that revised several environmental laws, to include the designation of PFAS as hazardous substances under CERCLA. H.R. 535, 116th Cong. (2019-20). The EPA would have five years to determine if it should designate all PFAS as hazardous. Id. The Senate received the Bill on January 13, 2020 and referred it to the Committee on Environment and Public Works. See H.R. 535 – PFAS Action Act of 2019, Cong. Gov., https://www.congress.gov/bill/116th-congress/house-bill/535/text#toc-HF19F2AC6937D425FA27969B8A439C09C (last visited Jan. 13, 2020).
7 Press Release, NC DEQ, DEQ Orders Additional PFAS Reductions by Chemours (Aug. 13, 2020), https://deq.nc.gov/news/press-releases/2020/08/13/deq-orders-additional-pfas-reductions-chemours.
9 Press Release, Environmental Working Group, Nomination of Michael Regan Shows Biden’s Commitment to Rebuild EPA, Protect Public Health and Advance Environmental Justice (Dec. 17, 2020), https://www.ewg.org/release/nomination-michael-regan-shows-biden-s-commitment-rebuild-epa-protect-public-health-and.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.