Emerging contaminants: trends in PFAS regulation

Emerging contaminants are a growing concern in the US and beyond. How are they 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 per- and polyfluorinated alkyl substances or “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 play more of a role in your life than you think. However, these products may not be a large presence in the future. 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.

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:

  • product design requirements to reduce their entry into the environment
  • water quality standards to remediate existing contamination, and
  • 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.

State agencies are taking the lead in the absence of sweeping federal regulation in the United States, using existing tools to protect the public from PFAS exposure. The European Union, meanwhile, 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. With the patchwork of PFAS regulation (and proposed regulations) in the U.S. and the E.U., it is vitally important for companies to be apprised of PFAS regulations now so they can anticipate the future for these emerging contaminants.

Differing scopes of product restrictions for emerging contaminants in the EU and US

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.

Bans around the globe

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 United States, Maine and Washington have adopted regulations implementing similar bans, while New York’s legislature passed a ban that has yet to be signed into law. Where the U.S. and E.U. differ, however, is in how classes of PFAS will be regulated in the future.

Differences in PFAS regulation

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 E.U. by 2030. Notably, the plan states that regulating “individual substances… will take too long to effectively manage the risk from these substances.” The E.U. strategy would utilize the REACH Regulation to restrict the import and manufacture of broad classes of non-essential PFAS uses.

Meanwhile, U.S. 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.

Product manufacturers in the U.S. should be aware of the scope of newly proposed and adopted product design restrictions as they are considered and implemented in their respective states. In the E.U., however, products will likely be regulated in a more uniform manner, with the majority of PFAS applications restricted in all member states.

Companies that operate water systems may have future requirements regarding emerging contaminants

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

Regulation in the U.S.

In the U.S., 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 U.S. 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).
  • New Hampshire has separate MCLs for PFOA (12 nanograms per liter (ng/l)), PFOS (15 ng/l), PFNA (11 ng/l), and perfluorohexane sulfonate (PFHxS) (18 ng/l).

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.
  • In Connecticut, if a drinking water source is found to exceed the action level of 70 ppt of PFAS, the state Department of Energy and Environmental Protection is authorized to issue a remediation order to the parties responsible for the contamination, rather than imposing obligations on an operator of a public water system.

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 E.U.

A similar picture has emerged in the E.U., where several member states including Denmark, Germany and the Netherlands have implemented drinking water and soil quality limits for PFAS or groups of PFAS while updates to the E.U. Drinking Water Directive are still being formulated. The main difference, however, is that the E.U. 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 U.S. federal regulation.

Still, in both the U.S. and E.U., 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.

Final observations on the regulatory future of emerging contaminants

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.

Similar provisions are available for product restrictions. Denmark’s food contact material restriction, for example, includes a transitional period for PFAS-containing food contact paper and board materials that are placed on the market before the rule’s effective date of July 1, 2020.

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, here are some steps companies can take to prepare for the future of PFAS regulation:

  • Even if the state or country does not currently regulate, be aware of the company’s status either as a public water system, or as a manufacturer or importer of PFAS-containing products.
  • Be aware of product phase-out deadlines, which can be adopted several years in advance of their effective dates.
  • If possible, investigate and adopt PFAS alternatives now, rather than waiting for regulators to act.

Abbreviations defined

  • AFFF – Aqueous film-forming foam; water based firefighting foams that often contain PFOA or other PFAS.
  • MCL – maximum contaminant levels; the maximum concentration of a substance allowed in public drinking water systems.
  • PFAS – per- and poly-fluoroalkyl substances, otherwise known as per- and polyfluorinated alkyl substances; any chemical substance that contains fluorine atoms attached to an alkyl chain.
  • PFHxS – Perfluorohexane sulfonic acid (CAS No. 355-46-4).
  • PFNA – Perfluorononanoic acid (CAS No. 375-95-1).
  • PFOA – Perfluorooctanoic acid (CAS No. 335-67-1).
  • REACH – Registration, Evaluation, Authorisation and Restriction of Chemicals regulation.
  • SDWA – the U.S Safe Drinking Water Act.

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