New regulations from the Environmental Protection Agency and the White House will not be watering down toxic tort litigation any time soon. On April 10, 2024, the Biden-Harris administration issued a national first —a federal standard that seeks to regulate per-and polyfluoroalkyl substances (PFAS), also known as “forever chemicals”, in drinking water supplies across the United States. These new regulations arise as part of the EPA’s “PFAS Strategic Roadmap,” that was adopted in October of 2021. This new standard will require all public water systems to complete initial monitoring for PFAS and provide a public report within three years, and to implement solutions to reduce any exposure within the new standard within five years. The EPA estimates that this could require between 6% to 10% of the 66,000 public drinking water systems in the United States to take action to reduce contamination. With anywhere from 4,000 to 6,600 water systems potentially out of compliance based on EPA estimates, it is vital for companies to know what standards these new regulations bring, how they may compare to their current state standards, and what additional regulations may be on the horizon.
The New Federal Standard
In its press release, the EPA outlined the following standards for each chemical:
- PFOA and PFOS: The EPA has set a Maximum Containment Level (MCL) goal (non-enforceable, health-based goal) at zero. The EPA has implemented an enforceable limit MCL of 4.0 parts per trillion (ppt) for PFOA and PFOS
- PFNA, PFHxS and “GenX Chemicals”: The EPA has set an enforceable limit MCL of 10 ppt (the MCL goal was also set at 10 ppt).
- The EPA is also setting a limit for any mixture of two or more of the following PFAS: PFNA, PFHxS, PFBS, and “GenX Chemicals”. This limit is stated as “1 Hazard Index”.
These limits are laid out in further in a table published by the EPA.
Prior State-Level PFAS Standards
Prior to the federal standard coming into effect, 11 states —Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin —had active state standards on MCLs for PFAS (with 12 additional states having guidance, health advisory, or notification levels for certain PFAS).
Based on the Supremacy Clause, these federal regulations will become the new “floor” for states, which means that state regulations must meet or exceed federal standards. For example, my home state of Wisconsin had adopted a MCL of 70 ppt for all PFAS, which is higher than the new federal standard. Therefore, Wisconsin must adopt standards that limit PFAS to reflect the stricter federal standard. A state could then decide to tighten these regulations further on its own if it chooses to, as state laws do not violate the Supremacy Clause if they are “more narrowly tailored”, or stricter, than the federal regulation. As of this writing, no states have adopted, or have discussed adopting, regulations that are stricter than the federal ones. Businesses across the United States should begin to prepare for tighter regulations entering state statutes and continue to stay up to date on any discussions in their state of narrowing these regulations further.
Future Forecast
American businesses may have to continue to ride a wave of change as these regulations are expected to expand further. The EPA has proposed regulations in February of 2024 to classify nine additional PFAS as hazardous materials under the federal Resource Conservation and Recovery Act (RCRA), and it is also expected that the EPA will designate PFOA and PFOS (as well as their structural isomers and salts) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act in the near future. These proposed regulations will impact industries such as water suppliers, wastewater treatment facilities, or agricultural businesses, and could shape up to be the next frontier of asbestos-like toxic tort litigation. If PFAS are designated as a hazardous substance, the scope of liability could expand to include entities that simply stored PFAS materials, such as landfills or airports. It would also create a significant risk to companies that incorporate PFAS-containing materials into their products, even if the company did not have knowledge of the existence of PFAS in the materials. While litigation using these new regulations is still pending as of this writing, companies should begin developing strategies to determine what PFAS-related information is known or reasonably ascertainable to get ahead of a potential lawsuit.
Tighter regulations will almost certainly lead to an influx of actions alleging injuries as a result exceeding the maximum contamination levels, and failure to meet these standards will lead to statutory penalties against these businesses and companies. While courts wait for individual states to codify their own versions of the federal regulations, plaintiff’s counsel will try to have courts apply these standards to toxic tort cases. Because of this, companies that may be affected by these regulations will need to prepare for this scenario. Having a plan to ensure compliance and create effective risk mitigation strategies will be key for businesses to weather an expected flood of litigation and potential penalties that will come with these new regulations.
If you are a business with questions about the new federal regulations, how they may affect you, or any other questions regarding toxic torts, please feel free to consult our firm to determine the best approach for your business.
Contacts:
Related Practice Areas: