With just over thirty days until President-Elect Joe Biden and Vice President-Elect Kamala Harris are sworn into office, the Biden-Harris team continues to work on the many aspects of transition to ensure that change can commence immediately after swearing in. While the United States and other countries wait to see the areas that will remain the focus of the Biden-Harris leadership, there is little question that one of the top campaigning issues – the environment – will remain a key focal point of the administration’s efforts in the next four years.
While there are hundreds of ways that environmental policies will likely change in the next four years, this second article in a three-part series (our first article focused on climate change) takes a deeper dive into how the administration will change the PFAS landscape and, in doing so, will significantly impact many environmental and compliance issues for businesses. These impacts will be felt well beyond industries that use PFAS directly in their manufacturing processes, and companies of any type would be well advised to take a closer look at how PFAS under Biden’s administration might impact them.
What Are PFAS and Why Are They a Concern?
Per- and poly-fluoroalkyl substances (“PFAS”) are a class of over 7,000 manmade compounds. Chemists at 3M and Dupont developed the initial PFAS chemicals by accident in the 1930s when researching carbon-based chemical reactions. During one such experiment, an unusual coating remained in the testing chamber, which upon further testing was completely resistant to any methods designed to break apart the atoms within the chemical. The material also had the incredible ability to repel oil and water. Dupont later called this substance PFOA (perfluorooctanoic acid), the first PFAS ever invented. After World War II, Dupont commercialized PFOA into the revolutionary product that the company branded “Teflon.”
Only a short while later, 3M invented its own PFAS chemical – perfluorooctane sulfonate (PFOS), which they also commercialized and branded “Scotchgard.” Within a short period of time, various PFAS chemicals were used in hundreds of products – today, it numbers in the thousands.
The same physical characteristics that make PFAS useful in a plethora of commercial applications, though, also make them highly persistent and mobile in the environment and the human body – hence the nickname, “forever chemicals.” While the science is still developing regarding the extent of possible effects on human health, initial research has shown that PFOA and PFOS are capable of causing certain types of cancer, liver and kidney issues, immunological problems, and reproductive and developmental harm.
PFAS Under The Safe Drinking Water Act
The first PFAS issue likely to receive immediate attention by the Biden-Harris administration is the EPA’s regulation of PFAS under the Safe Drinking Water Act (SDWA). The SDWA requires the EPA to publish a Contaminant Candidate List (CCL) every five years and explain why various contaminants are or are not in need of regulation. In February 2020, the EPA included two types of PFAS – PFOA and PFOS – in its CCL, which thereby triggered certain deadlines for the EPA. The EPA must propose a Maximum Contaminant Level (MCL) and a National Primary Drinking Water Regulation (NPDWR) within twenty-four months for PFOA and PFOS. Businesses, municipalities, and states should expect the Biden-Harris administration’s EPA to accelerate this timetable and propose a MCL and NPDWR in 2021. Once the proposals are published, the EPA will then have a maximum of 18 months to publish a final MCL and NPDWR.
While it is true that the Biden-Harris administration can be expected to relatively centrist when it comes to PFAS issues, as it will wish to rely on scientific support for the positions that it and its agencies advocate for, the scientific literature with respect to the scope of PFAS issues in drinking water is sufficiently established to lend the administration support for pressuring its EPA to act. In addition, the vast amount of media attention being given to PFAS focuses primarily on one issue – drinking water. In terms of regulating the PFAS class of chemicals, drinking water presents the perfect storm of attention (media, science, politics) to make it the primary target for regulation by the new administration.
What Will the Impact Be To Businesses?
Many companies assume that any regulation under the Safe Drinking Water Act will not impact them, as virtually no industries, aside from water utilities, have any direct impact on drinking water. However, this belief provides a false sense of security that must immediately be dispelled. There are three specific ways that drinking water limits for PFAS will trigger scrutiny on environmental practices of businesses: (1) elffluent discharges into water sources; (2) waste sent to landfills that may leach into drinking water sources; and (3) properties abutting or in the vicinity of water sources.
Direct industry effluent discharges into water sources (which may not be drinking water sources, but may feed into drinking water sources) will be the low-hanging fruit target for local environmental agencies at the state level. Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS. Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water.
Companies that send their industrial waste to landfills are also well advised to do a full compliance check. While many companies do not use PFAS directly in their own manufacturing processes, do the parts or other raw materials used in the manufacturing process have PFAS contamination issues? If so, a company could unknowingly send PFAS-laden industrial waste products to landfills, and so these are questions that companies must get answers to. Over time, it is possible that the PFAS may leach out of the landfill and find their way into local water sources. Environmental regulatory agencies will look to these sites, the owners of the sites, and potentially companies sending waste to the sites as responsible parties for PFAS contamination in waterways.
Finally, even businesses having nothing to do with PFAS or manufacturing from which PFAS could be a contaminant need to follow news regarding PFAS regulations. For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)? What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration? If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses.
PFAS Action Bill – “Hazardous Substance” Designation
The PFAS Action Bill is a federal bill that calls for a requirement that the EPA designate PFAS as a “hazardous substance” under the Comprehensive Environmental Response, Compensation and Liability ACT (CERCLA) – also known as the “Superfund law.” Once a substance is classified as a “hazardous substance” under CERCLA, the EPA can force parties that it deems to be polluters to either cleanup the polluted site or reimburse the EPA for the full remediation of the contaminated site. Without such a designation, the EPA can merely attribute blame to parties that it feels contributed to the pollution, but it has no authority to force the parties to remediate or pay costs. The designation also triggers considerable reporting requirements for companies. Currently, those reporting requirements with respect to PFAS do not exist, but they would apply to industries well beyond just PFAS manufacturers. The PFAS Action Bill previously passed in Congress and was defeated in the Senate. It will surely be revived by Congress once the Biden-Harris administration is sworn in.
During its campaign, the Biden-Harris administration pledged to have the EPA designate PFAS (or some of the thousands of types of PFAS) as “hazardous substances” under CERCLA. The downstream effects of this designation would be massive. While the administration will certainly push for Congress and the Senate to pass the PFAS Action Bill, expect heavy resistance from the Senate on the bill.
However, the PFAS Action Bill may not be the only way that the Biden-Harris administration could accomplish its goal. Just yesterday, Biden announced his nomination of Michael Regan (North Carolina’s head of the Department of Environmental Quality) to lead the EPA after Biden is sworn in. Mr. Regan has demonstrated a history of tough action on PFAS issues, especially since there is a PFAS manufacturing facility in North Carolina that is under scrutiny for waterway contamination. Having the EPA decide that PFAS constitute a “hazardous substance” under CERCLA provides stronger footing for the designation to actually pass political muster. While achieving the designation will still not be an easy task for the administration, expect to see considerable effort made in the first two years to achieve this campaign promise.
Our prediction is that in 2021, PFAS under Biden’s administration will see federal-level PFAS regulation with respect to drinking water. This will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs.
In addition, the PFAS CERCLA designation will receive heightened attention and will face renewed political debate. At some point in time, the mounting scientific literature and public pressure will make it difficult for the EPA to not classify some PFAS as hazardous substances. Whether that change happens during the Biden-Harris administration’s time in office remains to be seen, but the prudent course of action for companies is to invest now in planning, compliance, and strategic cleanup initiatives to save potentially millions of dollars in Superfund cleanup costs down the road.