Per and polyfluoro alkyl substances (PFAS), are a class of chemicals in wide use throughout the nation and rapidly gaining notoriety in environmental law, public health, and environmental remediation. (1) PFAS have been used in a myriad of products since the 1940s, and uses ranging from food wrappers, cooking utensils coated with Teflon[R], medical products, coatings, waterproofing and stain-resistance in carpeting and clothing, as well as in firefighting foams used by airports and firefighters throughout the nation, and in the workplace, including industries such as electronics manufacturing and oil recovery. In addition, PFAS are found in living organisms, such as humans and fish. Virtually everyone in the U.S. has been exposed and it is reported that PFAS are in the blood of more than 95% of Americans. (2)
PFAS is a family of thousands of fluorinated compounds that are pervasive in the environment, do not breakdown, bio accumulate, and are currently nonremediable. The Centers for Disease Control (CDC) states that some PFAS compounds pose different health risks, including hormonal problems and certain cancers. The most consistent findings are increased cholesterol levels among exposed populations, as well as low birth weight, effects on the immune system, cancer, and thyroid hormone disruption. (3)
Two PFAS have acquired particular notoriety: perfluoro octanic acid (PFOA) and perfluoro octane sulfonic acid (PFOS). PFOA is no longer
manufactured as of 2015, and PFOS stopped being manufactured in 2002. PFOA-containing products, such as firefighting foam, are still being used. These two compounds, along with four other PFAS, began to be monitored in large water suppliers in 2013 by the U.S. Environmental Protection Agency (EPA), under its Unregulated Contaminant Monitor Rule (UCMR), and water samples reported their presence in drinking water. (4) These detections and public furor triggered a series of actions culminating in the EPA issuing a health advisory level (HAL) in drinking water of 70 parts per trillion (ppt) in November 2016. (5) Compared to a federal rule-developed and enforceable maximum contaminant level (MCL) under the Safe Drinking Water Act (SDWA), a HAL is an unenforceable, nonregulatory concentration designed to inform the public about contaminants that can cause human effects and are anticipated to occur in drinking water. However, in practice the PFAS HAL has become a de facto standard, and many water utilities and municipalities in Florida have shut down water production wells reporting concentrations above the HAL or installing expensive carbon filtration systems at the wellheads. (6) Among the many controversies associated with PFAS, there is significant disagreement among the scientific community relating to analytical issues. For example, currently there are no validated standard EPA methods for analyzing PFAS in surface water, nonpotable ground water, wastewater, or solids. For now, in drinking water, analytical EPA Method 537.1 is used for PFAS. Methods for shorter chain compounds and solid matrices, such as soil, are being developed. Furthermore, there is currently no approved proven remedial technology for PFAS. Carbon filtration is the most common remedial option, but it is expensive and limited. Alternative remedial technologies are currently under study.
Because of their widespread use, bio-persistence, and ease of transport, these compounds can now be found almost anywhere one looks. While the health effects from low-level concentrations of PFAS chemicals are not yet fully understood, litigation and public interest continue to increase. State and federal agencies, including the EPA as well as the Florida Department of Environmental Protection (FDEP), and several other states, have taken notice and are beginning to move quickly in an effort to help minimize human exposure, despite scientific uncertainties.
Federal Legislative Landscape
A controversial provision in proposed federal legislation declaring PFAS "hazardous substances" under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), passed the U.S. House of Representatives under its PFAS Action Act of 2019 (HR 535), but the U.S. Senate did not take up companion legislation. (7) However, on December 19, 2019, two important provisions were included in the congressional 2020 spending packages for EPA regarding PFAS. The first provision directs EPA to add several PFAS compounds to the Toxic Release Inventory and accelerates PFAS drinking water monitoring, and the second provision directs the EPA to brief the House and Senate within 60 days of legislation enactment on its progress under the EPA's 2019 PFAS Action Plan. (8) These were signed into law on December 20, 2019. Other stand-alone federal legislation referred to banning PFAS use in food packaging, water assistance, right-to-know, testing of military personnel, and other areas. New York University's Law School Center for State Energy and Environmental Impact Center provides an excellent summary of additional 2019 legislation regarding these substances. (9) While the appropriations law omitted the most controversial provisions regarding PFAS, it is anticipated that in 2020 and 2021, Congress will continue to push for action on PFAS regulations that use several existing...