In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, several states have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards which presents significant compliance challenges to impacted industries.  This client alert explores the current landscape of state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in groundwater.

Federal Health Recommendations and Advisory

Although no legally binding standards have been issued at the federal level, the United States Environmental Protection Agency (“EPA”) has issued two influential documents:  (1) Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS; and (2) a Lifetime Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.  While EPA’s health advisory level is non-binding, and is primarily intended to address drinking

The Environmental Protection Agency (“EPA”) has announced it is taking three actions with respect to per- and polyfluoroalkyl substances (“PFAS”) under the Toxic Substances Control Act (“TSCA”):  (1) proposing a rule that is designed to enact reporting requirements for PFAS products that are manufactured or imported in the United States; (2) eliminating guidance that EPA asserts weakened the Significant New Use Rule (“SNUR”) regarding long-chain PFAS; and (3) publishing a final rule that incorporates three additional PFAS substances into the Toxics Release Inventory (“TRI”).

Recordkeeping and Reporting Requirements

EPA’s proposed recordkeeping requirements, published on June 10, 2021, would require that certain businesses to electronically report information to EPA regarding any PFAS substances (see pages 18-21 of the linked proposal for the complete list).  Significantly, the definition of “PFAS substances” is “any chemical substance or mixture that structurally contains the unit R-(CF2)-C(F)(R’)R’’. Both the CF2 and CF moieties are saturated carbons. None

Many states have expressed frustration with the lack of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, and have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards that present significant challenges to impacted industries.  This client alert focuses on the different state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in groundwater.

I. State Regulations

The snapshot provided below is current as of March 1, 2021, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as North Carolina, Pennsylvania, Rhode Island, and Wisconsin have proposed groundwater regulations for PFAS which may take effect later this year, and more state actions, as well as possible federal action, are expected to be announced this year.  All

Many states have expressed frustration with the lack of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, and have started the process of regulating PFAS in drinking water themselves.  As a result, states have adopted a patchwork of regulations and standards that present significant challenges to impacted industries.  This client alert focuses on the maximum contaminant levels (“MCLs”), as well as guidance and notification levels for PFAS – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”)  – in drinking water that have been enacted or proposed by various states.

1. State Regulations

The following chart is current as of January 19, 2021.  Some states, including Rhode Island and Washington, have proposed Drinking Water regulations for PFAS, reinforcing the fact that this is an area of regulation that is developing quickly.  In addition, President Biden’s Environmental Justice Plan includes a commitment to set “enforceable limits for PFAS in the

Although much of the world’s focus has been consumed by the global pandemic, six states have issued important regulations for per- and polyfluoroalkyl substances (“PFAS”), which are expected to have significant impacts on businesses in those states.  Specifically, Massachusetts, Michigan, New Hampshire, New Jersey, New York, and Vermont have enacted Maximum Contaminant Levels (“MCLs”) for certain PFAS substances, including perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”) in drinking water.

In addition, Michigan and New Jersey have established groundwater quality standards for certain PFAS compounds, which means that there is now a reference standard for groundwater investigation and cleanup actions, as well as guidelines for entities conducting due diligence for real estate acquisitions.

26 states have either passed or proposed regulations regarding per- or polyfluoroalkyl (“PFAS”) based Class B Aqueous Film-Forming foams (“AFFF”) used for firefighting.  These regulations typically involve restrictions in four general areas:

While the specific regulations are listed in the chart below, BCLP wants to begin by providing an overview

Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluorinated chemicals (“PFAS”) in their products. This area of law is rapidly developing as states create new laws, and the penalties for non-compliance can be significant. Below is an overview of enacted and proposed state laws and regulations to assist companies in beginning an investigation into whether their products are, or will be impacted.

PFAS Background

PFAS is a family of chemicals comprised of over 5,000 compounds. PFAS have been reported in a variety of consumer products and industrial applications including the following: children’s products, textile and apparel items, carpet cleaners, non-stick products (e.g., Teflon), stain resistant coatings, polishes, paints, cleaning products, food packaging (including pizza boxes, microwave popcorn bags, and take-out food containers), firefighting foam, certain cosmetics, and ski wax. Some studies have also shown that

On July 27, 2020, the Environmental Protection Agency (“EPA”) finalized a significant new use rule (“SNUR”) for PFAS substances and other compounds under the Toxic Substances Control Act (“TSCA”), which was originally proposed in 2015.  Although this is not the first SNUR for PFAS substances, it includes a new list of compounds, and may be important for your operations if those compounds are part of your business operations.

As described below, companies that manufacture, process, distribute, or import specific long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate chemical substances must notify EPA at least 90 days in advance of any manufacturing (including import), processing or distribution for a significant new use.

The final rule becomes effective on September 25, 2020.

1. What Chemicals Are Specifically Regulated? 

LCPFAC chemicals are defined as “the long-chain category of perfluoroalkyl carboxylate chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons

The U.S. Food and Drug Administration has announced that manufacturers of certain per- and polyfluoroalkyl substances (PFAS) used for grease proofing in paper and paperboard for food packaging (for example, as coatings on some fast food wrappers, to-go boxes, and pizza boxes) have voluntarily agreed to phase out sales of these substances for use as food contact substances in the United States, following new analyses of data raising questions about potential human health risks from chronic dietary exposure.

Starting in January 2021, three manufacturers will begin a three-year phase out of their sales of certain substances that contain 6:2 FTOH for use as food contact substances in the U.S. marketplace.  It may take up to 18 months after the phase-out period to exhaust existing stocks of paper and paperboard products containing these food contact substances from the market. A fourth manufacturer informed the FDA in 2019 that

In a world filled with acronyms, PFAS has started emerging as a topic of conversation, regulation, and litigation.  Enforcement actions and lawsuits have so far mostly focused on the companies that have manufactured two of the most widely used, and the most heavily regulated, PFAS compounds – PFOA and PFOS – but the scope of regulation and litigation is expanding further into this large family of compounds.

What are PFAS Chemicals?

Per- and polyfluoroalkyl substances (“PFAS”) are a family of over 5,000 man-made fluorinated chemicals some of which have been used since the 1940’s across a variety of industries as part of manufacturing processes, and as components of consumer products.

PFAS are defined by having elemental bonds of fluorine and carbon, rendering them pervasive and persistent.  Significantly, this means that PFAS compounds do not break down easily either in the environment or in living organisms.

PFAS chemicals can repel both