After years of collecting data that indicate the dangers of per- and poly-fluorinated alkyl substances (PFAS), the U.S. EPA and several of its state counterparts are beginning the regulatory process for these previously unregulated substances. Some state agencies have proposed PFAS legislation that seeks to regulate the substances’ concentration in everyday products and necessities through mechanisms such as drinking water limits, prohibitions on firefighting foam, and the development of groundwater and surface water quality standards.[1] U.S. EPA is still in the research and development phase of providing national recommendations.

PFAS are a group of synthetic chemicals used in manufactured goods such as Teflon, waterproof materials, and firefighting foams.[2] PFAS are ubiquitous, persist in the environment, and bioaccumulate. Studies have found that ninety-seven percent of people have PFAS in their blood stream.[3] Research indicates PFAS exposure negatively impacts human health, from immunological effects to cancer.[4]

In the past sixty days, Michigan, New Hampshire, New Jersey, and New York have all adopted combined drinking water limits for PFOS and PFOA (chemical constituents in the PFAS family) more stringent than the EPA’s 70 parts per trillion (ppt) guideline.[5] The Illinois Environmental Protection Agency (IEPA) has been comparatively slow to regulate PFAS, though last week the agency released a draft to amend the state’s groundwater quality thresholds[6] to include six different PFAS constituents.[7]

Aside from U.S. EPA’s 70 ppt combined PFOA and PFOS lifetime drinking water limit exposure, there are no nationally recommended groundwater or water quality standards for any PFAS constituent. This leaves states to develop their own thresholds with differing methodologies, which are often determined by state administrative codes. It also allows states to decide which of the more than 5,000 PFAS constituents they want to regulate, creating an ad hoc and somewhat arbitrary adoption of standards.

In May, The American Water Works Association (AWWA), the largest organization representing wastewater treatment facilities across the nation, submitted comments to the EPA voicing their support for the EPA to regulate PFAS constituents.[8] The AWWA’s comments cautioned, however, that state and federal regulations, such as the Clean Water Act, would not, “stop PFAS from entering the U.S. surface and ground water.”[9]

While developing standards and criteria at the end-of-pipe stage may remove PFAS contamination from the environment, these regulations do not address the use of these contaminants at the source.

[1] Cynthia Stroman, PFAS Update – States Continue to Move Ahead, King and Spalding LLP (Sept. 17, 2020), https://www.lexology.com/library/detail.aspx?g=0a6d2d24-6c81-4780-b6f9-4bd31a1b46bb.

[2] Basic information on PFAS, The United States Environmental Protection Agency, https://www.epa.gov/pfas/basic-information-pfas. (Last visited September 28, 2020) [hereinafter US EPA].

[3] Per– and Polyfluoroalkyl Substances (PFAS) in Drinking Water, The American Association for the Advancement of Science, https://www.aaas.org/programs/epi-center/pfas#:~:text=Per%2D%20and%20polyfluoroalkyl%20substances%20(PFAS)%20are%20a%20family%20of,have%20PFAS%20in%20their%20blood. (Last visited September 28, 2020).

[4]US EPA, supra, note 2.

[5] Stroman, supra, note 1.

[6] ILL. ADMIN. CODE tit. 35 § 620 (2020).

[7] Kevin G. Desharnais and Mitchell L. Guc, Illinois EPA Proposes PFAS Standards, Troutman Pepper (Sept. 14, 2020), https://www.lexology.com/library/detail.aspx?g=e3da404f-a855-4eec-8817-eafccfe848cb.

[8] Dave Gaylinn, AWWA on PFAS: Advance public health with sound standards, CISION PRWeb, (May 21, 2020), https://www.prweb.com/releases/awwa_on_pfas_advance_public_health_with_sound_standards/prweb17139224.htm.

[9] Id.