Emerging contaminants: trends in PFAS regulation

Emerging contaminants are a growing concern in the US and beyond. How are PFAS regulated and what should companies know or do in response? 

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by Nathaniel Gajasa

Did you know that the chemicals known as per- and poly-fluoroalkyl substances (also known as “PFAS”) are a presence in your everyday life? If you use non-stick cookware, have stain-resistant carpeting, or order carryout that comes in grease-resistant packaging, chances are that these chemicals – dubbed as “emerging contaminants” – play more of a role in your life than you think. And if your facilities use PFAS, regulators are calling on your business to play a bigger role in protecting our environment than ever before. 

 As scientific consensus continues to grow on the carcinogenic and other negative health impacts of PFAS, regulators around the world are taking notice and taking action. With the patchwork of PFAS regulation in the US and the EU, it’s vitally important for companies to be apprised of requirements now so they can anticipate changes in the future. 

What are PFAS and emerging contaminants?

PFAS are synthetic chemical compounds found to be persistent pollutants affecting humans and wildlife. The term “emerging contaminants” isn’t defined in regulations but generally refers to pollutants for which there are concerns regarding public health effects and are either not regulated or only recently starting to be regulated. Considered harmful “forever chemicals,” these substances have been in the proverbial hot seat of regulators around the world.  

While there are thousands of substances classified as PFAS, the most popular existing forms of regulation for these substances essentially boil down into 3 types:  

  1. product design requirements to reduce their entry into the environment 
  2. water quality standards to remediate existing contamination, and  
  3. monitoring and reporting requirements to observe their spread.  

Of these, requirements on operators of public water systems are the most common, usually taking the form of drinking water contaminant limits and associated monitoring, government or public notice and remediation obligations. 

One of the more direct ways states have sought to reduce the presence of PFAS in the environment is to restrict their use in products. But with a myriad of products containing PFAS, states have a lot of options when it comes to regulation. More than a handful of American states and European countries have already issued bans limited to specific product classes. Denmark, for example, issued a recent prohibition on the use of these chemicals in food contact paper and board materials, which are a common and particularly potent point of exposure for consumers. In the US, Maine, New York, and Washington have adopted regulations implementing similar bans. Where the US and EU differ, however, is in how classes of PFAS will be regulated in the future. 

EU: Uniformity in emerging contaminants regulations

The European Union has both uniform requirements (under the EU Drinking Water Directive and the EU Regulation 2019/1021 on persistent organic pollutants, for example) as well as local standards in several member states.  

Several European countries have already begun to implement bans on most uses of PFAS. Denmark, Germany, Sweden, and the Netherlands have laid out a strategy to phase out almost all PFAS uses in the EU by 2030. Notably, the plan states that regulating “individual substances… will take too long to effectively manage the risk from these substances.” The EU strategy would utilize the REACH Regulation to restrict the import and manufacture of broad classes of non-essential PFAS uses. Thus, products in the EU will likely be regulated in a uniform manner, with the majority of PFAS applications restricted in all Member States. 

US: Restricting emerging contaminants state by state

In the US, the EPA recently issued a new interim guidance for the destruction and disposal of PFAS and PFAS-containing materials. Yet despite the beginnings of PFAS action at the federal level, state agencies are taking the lead, using existing tools to protect the public from PFAS exposure.  

Product manufacturers in the US should be aware of the scope of newly proposed and adopted product design restrictions as they are considered and implemented in their respective states. These states are gradually adopting PFAS prohibitions with priority towards individual product classes that are common sources of exposure. Firefighting foams containing PFAS, another well-documented source of exposure, have also been banned or will soon be banned in several states. New York, for example, requires all current producers of aqueous film forming foam (AFFF) to register and give notice to the state regarding their PFAS-containing products and will phase out the production and use of AFFF in the state in early 2022. As the effects and sources of PFAS exposure continue to be studied, more classes of products will likely be banned.

What to know about water systems: Future requirements for emerging contaminants

Manufacturers and retailers of products are not the only companies with PFAS-related obligations. With water quality standards like maximum contaminant levels (MCLs) under the US Safe Drinking Water Act (SDWA) and EU Drinking Water Initiative coming into effect, companies that operate certain water systems may be required to monitor, report, and remedy PFAS contamination. 

Regulation in the US: In the US, MCLs are regulatory limits on the amount of contaminants in drinking water and they apply to owners and operators of public water systems. The latter are defined as any system for the provision of water for human consumption that either has 15 service connections or serves 25 individuals daily for at least 60 days out of the year. MCLs can be set by the US Environmental Protection Agency (EPA) under the SDWA and by states implementing equivalent statutes. 

While there is currently no federal MCL for PFAS, several state agencies have implemented regulatory standards limiting PFAS. Both the levels and chemicals covered by MCLs vary from state to state. For example, New Jersey sets MCLs of 13 parts per trillion (ppt) for perfluorononanoic acid (PFNA) and 10 ppt for both perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).  

Certain states differ even further by implementing “action levels” or “response levels” in place of or in addition to MCLs. For example, California sets a response level of 10 ppt PFOA and 40 ppt PFOS for public water systems subject to a monitoring order. If a public water system, subject to a monitoring order, exceeds these limits, they must either close the system, provide notice to the local water agency and serviced public, or implement remediation measures.  

Until the EPA issues a federal MCL, thereby setting a regulatory “floor” for the states, this patchwork of differing state standards will continue to operate. 

Regulation in the EU: A similar picture has emerged in the EU, where several member states, including Denmark, Germany and the Netherlands, have implemented drinking water and soil quality limits for PFAS or groups of PFAS. Additionally, the EU Drinking Water Directive entered into force January 2021, giving Member States until January 2023 to transpose the requirements into law. The main difference, however, is that the EU drinking water “group limit” value of 0.5 micrograms per liter (µg/L) and individual limits of 0.1 µg/L for various individual PFAS are more likely to come into effect in the near future than US federal regulation.  

Still, in both the US and EU, companies operating water systems, as well as companies that are potential sources of PFAS emissions, must monitor both local and federal standards for such chemicals. 

Flexibility for PFAS restrictions

Regulators seem to be willing to extend at least some form of regulatory flexibility for these emerging contaminants. Flexibility in future regulations may take the form of delayed or staggered compliance time or staggered implementation so that newer requirements can be tested out on facilities that are more able to manage compliance before becoming broadly applicable.  

Under New York’s MCLs for PFOA, PFOS, and 1,4-dioxane, for example, facilities have compliance dates of 60 days, 90 days, or 6 months depending on the number of persons served, with facilities serving fewer than 3,300 people having the longest time before compliance is required. Facilities subject to New York’s MCLs may also qualify for a deferral for up to 3 years based on need.  

 

Emerging contaminants and their regulatory future

The regulation of these “forever chemicals” is not going away any time soon, and the early adopters of regulations may be just getting started. Furthermore, with the wide range of PFAS-containing products and growing consensus on the negative health effects of these chemicals, companies can expect more regulators to take action.  

With that in mind, companies should prepare for the future of PFAS regulation. Even if the state or country doesn’t currently regulate, be aware of your company’s status either as a public water system, a manufacturer, or importer of PFAS-containing products. As part of this awareness, you’ll need to stay on top of product phase-out deadlines, which can be adopted several years in advance of their effective dates. Lastly, whenever possible, investigate and adopt PFAS alternatives for your business now, rather than waiting for regulators to act.

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