How States are Addressing PFAS Regulations Across the U.S.
6.26.23
Across the United States, increased testing for PFAS in drinking water has shown that they are much more widespread than initially thought, resulting in heightened concern over their pervasiveness and persistence in the environment. Many states are seeking ways to remove these pollutants and protect public health.
PFAS (per- and polyfluoroalkyl substances) are a group of thousands of human-made chemicals that were heavily used in industrial and consumer products over the last half-century. They are most commonly found in products such as non-stick cookware, stain-resistant fabrics, waterproofing materials, and firefighting foams. While many U.S. manufacturers have opted for alternative materials in recent years due to increasing public concerns, the persistence of PFAS compounds means that they are still prevalent in our water, our soil, and even our blood.
Decades’ worth of research has shown connections between exposure to PFAS in drinking water and serious health concerns, even at relatively low chemical concentrations. These health risks include higher rates of kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis, preeclampsia, and reduced immune responses. The widespread presence of these contaminants presents a significant health hazard to the public. Since PFAS chemicals have been detected in soil and groundwater in most areas of the country, many states are working to develop action plans to reduce the use of PFAS forever chemicals within their borders and remove any contaminants that may be found in their water systems.
State Action
While the presence of PFAS in groundwater is ubiquitous, each affected state has its own unique challenges. Many states have taken action in recent years by enacting state-level regulations for the chemicals in drinking water, limiting the manufacture and sale of products containing PFAS, and reducing the use of firefighting AFFF (aqueous film-forming foam).
Drinking Water: PFAS Regulations by State
States can set enforceable standards for the maximum concentration of a given contaminant allowed in drinking water, provided that they are at least as stringent as the EPA’s national standards. If water systems discover contaminants in concentrations greater than the drinking water standards, they must either treat the sources or take them out of service. Some states have already adopted drinking water standards, including Delaware, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin. Additionally, California, Illinois, Maine, North Carolina, and Virginia are in the process of implementing new regulations. In fact, legislators in Maine recently introduced a bill to set PFAS MCLs (maximum contaminant levels) for certain compounds at zero nanograms per liter.
While not all states have implemented drinking water standards, over half have published health-based standards. Health-based standards are not enforceable regulations, but they show the levels that the state has deemed unsafe for drinking water. The map below provides an overview of the trends in PFAS state regulations.
Consumer Product PFAS Bans by State
Another approach taken by some states to reduce residents’ exposure to PFAS is through legislation to ban the manufacture and sale of products containing the chemicals. In 2021, Maine passed legislation to prohibit the sale of carpets, rugs, & fabric treatments with intentionally added PFAS, effective Jan. 1st, 2023. The legislation also stated that all products with intentionally added PFAS would be banned effective Jan. 1st, 2030, unless the use of PFAS was determined to be unavoidable.
In early 2023, Minnesota announced plans to implement the most restrictive PFAS ban of any state in the United States. A new bill would ban intentionally added PFAS in carpets, rugs, cleaning products, cookware, cosmetics, dental floss, fabric treatments, children’s products, menstruation products, textile furnishings, ski wax, upholstered furniture, firefighting foam and food packaging, effective Jan. 1st, 2025. Manufacturers would also be required to disclose if any products sold in Minnesota contain PFAS. Additionally, the new law would prohibit the sale of any items containing intentionally added PFAS by Jan. 1st, 2032, unless the products are determined to be essential for health and safety, and no alternatives can be found.
Many other states have enacted legislation to limit the use of PFAS in products made and sold within their borders. These laws range from phase-outs of PFAS in food packaging to prohibiting the sale of products.
Phasing Out AFFF Fire Fighting Foam
Aqueous Film-Forming Foam (AFFF) has been widely used for over 50 years in firefighting as well as training and testing exercises at fire training facilities, airports, military bases, and other locations across the United States. Over time, PFAS from AFFF contaminated the soil, surface water, and groundwater in these areas. Manufacturers failed to warn airports and the government of the health risks and long-lasting environmental harm caused by these chemicals.
In recent years, new science has linked exposure to PFOS and PFOA, two PFAS compounds found in AFFF, to certain cancers and reproductive harm. Concerns over AFFF and cancer or other health effects have led many states to take action to discontinue its use and encourage the adoption of safer alternatives.
In 2018, the State of Washington was the first to restrict the use of AFFF and require manufacturers of firefighting personal protective equipment (PPE) to notify buyers if their products contain PFAS. Many other states followed by instating their own AFFF regulations. However, because PFAS are not biodegradable, local soil and water will remain contaminated until they can be treated to remove these chemicals.
Federal Action
While states work to provide clean drinking water for their residents, water systems must also ensure compliance with both existing and upcoming federal regulations. On March 14, 2023, the Environmental Protection Agency (EPA) announced a new proposal for the regulation of six PFAS substances: PFOS, PFOA, PFNA, PFBS, PFHxS and GenX. The proposed regulation would create national MCLs for these substances, which would supersede any existing state MCLs that allow higher concentrations. The EPA expects to finalize the regulation by the end of 2023.
Learn about your Options for PFAS Treatment Cost Recovery
While many states are making efforts to reduce PFAS, the challenge remains for those with PFAS detections to cover the high cost of removing contaminants. Because these compounds do not break down in the environment, affected areas will need careful management for many years to come. Many states, water systems, public entities, and businesses do not have the readily available resources to cover the cost of treatment and would rather not pass such a burden onto their ratepayers or residents. PFAS water contamination lawsuits are becoming an increasingly popular solution for those who seek to make polluters pay for treatment costs, especially as existing claims gain momentum. The recently proposed $1.185 billion PFAS class action settlement between DuPont, Chemours and Corteva and hundreds of communities nationwide has captured public attention. Those with PFAS detections may want to explore the legal process as a potential avenue for treatment cost recovery.
That said, the idea of filing a lawsuit can be overwhelming, particularly for those without previous experience in water contamination litigation. If this applies to you, know that you are not alone. When considering the option of filing a lawsuit, it’s important to understand the full process from start to finish. To help provide clarity, we’ve compiled a list of the most common questions and concerns we hear, along with answers and information about the litigation process.
