PFAS use places firms ‘in the target for the EPA,’ attorney says

PFAS regulation continues to make headlines, as the EPA has recently announced new national drinking water standards as well as designating two PFAS compounds as “hazardous substances.” The far-reaching consequences of these moves are unknown, but are bound to affect a broad range of industries.

“Anyone who uses or has in the past used PFAS in their process, or taken in waste that contains PFAS, or arranged for the disposal of PFAS, or manufactured PFAS itself, those parties will be squarely in the target for the EPA and others,” said , partner at Stoel Rives. “We are seeing this play out already.”

Perfluoroalkyl and polyfluoroalkyl substances, commonly known as PFAS, have been used in manufacturing since the 1940s. Found in a range of products, from stain-resistant carpets to nonstick cookware, these chemicals can enter the environment during production and usage. Although the precise impacts of PFAS on human and animal health remain uncertain, some scientific inquiries have revealed potential adverse effects associated with exposure, according to the CDC.

Minnesota has already approved a ban on “forever chemicals,” becoming one of the first states in the nation to do so. Starting in 2025, Minnesota will prohibit many products where PFAS has been intentionally added things such as dental floss and kid’s products. By 2032, nothing with intentionally added PFAS can be sold unless it’s deemed essential for the health, safety, or functioning of society and there are no reasonable alternatives.

There has been significant action on the federal level as well since 2021. In the last few weeks, EPA has announced new standards and rules that emphasize the significance of assessing prospective regulatory compliance obligations.

The EPA designated two PFAS compounds as “hazardous substances” under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). It’s a designation the EPA will make that brings a chemical under the regulatory scheme of CERCLA, permitting the federal government to undertake an investigation and cleanup and then seek recovery from the parties that it has deemed are responsible for the release of the hazardous substance.

“Without being designated as a hazardous substance, the government does not have that ability to go after the responsible party for payment,” Braun explained. Not only can the government pursue claims, but third-parties can as well.

This move subjects a broad range of industries to potential liability, for the investigation and cleanup, if they released PFAS, as well as imposes CERCLA compliance obligations onto entities whose operations involve PFAS. “It has the potential to be quite impactful and really touch on quite a few areas, parties, and industries,” Braun said.

The EPA also announced new national drinking water standards, which are aimed at limited PFAS. Agricultural, development, and manufacturing industries will be the most acutely affected. There will be heightened standards for the companies that are doing groundwater cleanup for land use needs or brownfield development. Additionally, there will be a more restrictive National Pollutant Discharge Elimination System (NPDES) permit limits. These permits are required for disposing of pollutants into United States water.

While Minnesota has been a leader in its PFAS legislation, Braun notes that there appears to be a trend “away from PFAS in its totality.” Hence, those industries that still use PFAS will be most affected by the regulations. “It is going to become an increasing issue for the folks who are continuing to use PFAS, and it speaks to the needs to look for alternatives,” Braun said.

“It appears that EPA is going to regulate PFAS from the inception to the disposal, so any entity that uses PFAS in the process right now should consider whether there is an alternative to PFAS,” Braun said. “They will have to look at their supplier notifications to see if supplies are now telling them, based on the change to their reporting, that the components that they use in their process actually do contain PFAS and at what levels. The industry is going to want to look at whether, in the past, they have used PFAS and if it has been disposed of somewhere that is identified as a site where cleanup is going to need to happen.’’

“It seems like the culmination, but it’s not. There will continue to be knock-on effects across many different environmental and regulatory programs,” Braun explained. Cleanup standards, and permitting, might also be affected due to these changes.

“The knock-on effects here are important, and we are just starting to see what they might be. That process will continue to play out here probably over several years,” said Braun.

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