Report Per- and Polyfluoroalkyl Substances (PFAS) | State Legislation and Federal Action

Introduction

Per- and poly-fluoroalkyls, known more commonly as PFAS, are a group of human-made chemicals not found naturally in the environment that have emerged as an issue of increasing interest to state legislatures and the federal government within the last decade. The PFAS group includes chemicals such as perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), GenX and more than 7,800 others.

PFAS are used in a wide range of products used daily—from cookware to rain jackets to pizza boxes- because they contain many properties such as the ability to repel dirt, water and grease. In fact, since their introduction in the 1940s, the chemicals have been used in a variety of industries and consumer goods, such as carpeting, paper packaging, nonstick and weather-resistant coatings, rubber and plastics. As such, a majority of people have been exposed to PFAS at some point in their life, and while PFOA and PFOS are no longer manufactured in the United States, these chemicals are still produced internationally and imported into the country in consumer products.

PFAS chemicals are extremely stable and persistent in the environment and in the human body, meaning they do not break down and can accumulate over time—thus being given the moniker of “forever chemicals.” These chemicals are often found in soil and water near sites where they are manufactured, used or discarded. The chemical chains can travel long distances, move through the soil, seep into groundwater, or be carried through the air, making them especially difficult to contain.

Studies have linked the chemicals to adverse health effects such as low infant birth weights, asthma, cancer and thyroid hormone disruptions. According to the Environmental Protection Agency (EPA), studies indicate that PFOA and PFOS can impact reproductive and developmental systems, liver and kidney function and cause immunological effects in laboratory animals. The Agency for Toxic Substances and Disease Registry’s (ASTSDR) 2018 toxicological profile of PFAS also indicates that high levels of PFAS in the blood may decrease how well the body responds to vaccines. Given the negative public health impacts, it is disparaging to say that 95% all of the people tested since 1999 via the National Health and Nutrition Examination Survey performed by the Centers for Disease Control and Prevention (CDC) were found to have PFAS in their bodies—thus indicating widespread exposure to PFAS within the United States.

Given the breadth and negative impacts of these chemicals, state legislatures and the federal government are working to take actions to mitigate the public health impacts and clean up the environmental degradation the production and use of these chemicals have caused.

Federal Action

The EPA has found PFOA and PFOS to cause significant negative health impacts in laboratory animals and has committed itself to moving forward with several actions aimed at helping affected communities better monitor, detect and address PFAS.In 2016, the EPA published a health advisory—but not a regulatory standard—on PFOA and PFOS, establishing safe levels of the chemicals in drinking water at no more than 70 parts per trillion, and following several meetings with other federal, state and local government stakeholders unveiled a formal PFAS Action Plan in 2019. In the plan, the EPA outlines the long-and-short term actions that the agency plans to take surrounding the chemicals, including but not limited to: developing a maximum containment level for states and local water utilities via the Safe Drinking Water Act; listing PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA, also known as Superfund); considering listing the chemicals in the Toxic Release Inventory; and developing new and better methods to detect the chemicals in drinking water, soil and groundwater. 

The EPA issued an update to that action plan in February 2020 outlining actions taken to address and mitigate the chemicals in the environment. To date, the federal agency has issued groundwater cleanup guidance, is moving forward to develop a national drinking water regulation under the Safe Drinking Water Act for PFOS and PFOA, issued a proposal ensuring that new uses of certain chemicals within the class cannot be manufactured or imported without notification and review under the Toxic Substances Control Act, initiated the regulatory process for listing PFOA and PFOS as CERCLA hazardous substances, and announced a new testing method for 11 additional PFAS chemicals in drinking water, among others.  Additionally, the EPA announced approximately $4.8 million for new research focused on managing PFAS in the agriculture sector and highlighted new ways that existing programs, like State Revolving Funds, can be used to address PFAS.

Most recently, the Environmental Protection Agency announced drinking water health advisories for several per- and polyfluoroalkyl substances (PFAS) chemicals under the Safe Drinking Water Act. Specifically, the agency released two interim health advisories for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and two final advisories for GenX and perfluorobutanesulfonic acid, which were developed as PFOA and PFOS replacements, respectively. A health advisory level is the concentration of drinking water contaminant for a specific exposure duration, at or below which exposure is not anticipated to lead to adverse human health effects. The EPA’s health advisories are nonenforceable and nonregulatory and provide technical information that federal, state and local officials can use to develop monitoring plans, investments in treatment solutions, and future policies to protect the public from PFAS exposure. Information on all ongoing EPA-related actions is available on the EPA website.

While the federal administration continues to work towards regulating these chemicals, Congress is also working to develop legislation to address them—with more than 80 pieces of legislation introduced within the last Congress alone, and over 60 so far in the current Congress.  

Notably, the Infrastructure Investment and Jobs Act (IIJA) allocated $10 billion in new government funding to address PFAS and other emerging contaminants, with this fund distribution:

• $5 billion to address emerging contaminants for small and disadvantaged communities, distributed to improve drinking water quality under the Safe Drinking Water Act.
• $1 billion for wastewater and stormwater infrastructure projects under the Clean Water State Revolving Funds (SRFs).
• $4 billion for community water systems to upgrade drinking water treatment, distribution, and replacement of contaminated sources under the Drinking Water SRFs.

While such funding typically requires matching or cost-sharing from the state, the IIJA’s PFAS funding is awarded as a grant, a loan with the entire principal forgiven, or a combination of the two, and every state and territory will receive some portion of funding. For more information, see EPA’s webpage tracking the IIJA funding.

State Action

State policymakers have implemented various approaches for targeting per- and poly-fluoroalkyls (PFAS) substances. In recent years, states have enacted legislation to restrict PFAS in firefighting foam, regulate the presence of PFAS in drinking water, food packaging and consumer products, and allocate funds for cleanup and remediation, among other measures. In addition to passing legislation, states have also addressed PFAS through agency rulemaking, such as adopting rules to set standards for PFAS levels in water supplies. Further, states have taken steps to address PFAS through legal action. States such as Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio and Vermont have sued the manufacturers of PFAS chemicals for threatening public health and the environment. New Mexico has filed a lawsuit against the federal government for water contamination at U.S. Air Force bases.

Recent State Legislation

Over the years, state legislative activity around PFAS has increased. In 2018, state legislatures introduced 76 PFAS-related bills and supplemental appropriations. In 2019, state legislatures considered at least 106 bills with language on PFAS and enacted at least 15 bills to address PFAS by providing funding for PFAS remediation, regulating PFAS in drinking water systems, and restricting PFAS in firefighting foam and other products. Vermont, for example, passed a bill setting maximum contaminant levels (MCLs) for PFAS in water and requiring landfills to treat leachate for PFAS substances. Minnesota enacted a bill to prohibit the use of certain flame-retardant chemicals in certain types of furniture and children’s products and restrict the manufacturing and sale of firefighting foam containing PFAS.

In 2020, state legislatures considered at least 180 bills with language on PFAS. At least 15 states enacted at least 27 bills focused on efforts like regulating PFAS in firefighting foam and consumer products, establishing MCLs for PFAS in drinking water, and appropriating funds for remediation activities to address PFAS contamination. For example, California, Colorado, Indiana, Maryland, Michigan, New York and Wisconsin enacted legislation regulating PFAS in firefighting foam and firefighting equipment. New York also established requirements for consumer notices for the use of PFAS and other chemicals in children’s products. Connecticut appropriated money for PFAS remediation and cleanup, and Washington appropriated funds to implement recommendations on addressing PFAS contamination in drinking water.

In 2021, state legislatures considered at least 196 bills on PFAS. States considered bills to eliminate PFAS from food packaging, ban the use of firefighting foam containing PFAS, establish drinking water standards, and eliminate the chemicals from textiles, cosmetics, and other products. Some states, including Maine and New York, considered legislation to phase out PFAS in all consumer products. States also considered legislation related to the cleanup of contaminated areas. Washington, for example, allocated funding to implement recommendations from state agency chemical action plans, including remediating drinking water sources and monitoring the results. States also considered policies to increase accountability for PFAS contamination, including holding companies accountable for the costs involved with cleanup and extending the statute of limitations for lawsuits. For example, New Hampshire considered legislation that would have required a corporation to pay for remediation of water contaminated by PFAS.

Examples of Statewide Efforts

States are taking the lead to regulate PFAS, as noted above and as seen by efforts underway in states like Connecticut, Maine, Michigan, New Jersey, Pennsylvania and Washington.

• Connecticut—Governor Ned Lamont (D) established the Connecticut Interagency PFAS Task Force that laid out a statewide strategy with a PFAS action plan in 2019. The plan identifies potential legislative opportunities and recommends actions to protect residents and the environment from the effects of PFAS, including cleaning up historical releases and minimizing future releases. Further, in 2020, the Connecticut General Assembly appropriated $2 million (HB 5518) for PFAS cleanup and remediation.
• Maine— In January 2020, the Maine PFAS Task Force published its report and recommendations. In 2021, Maine became the first state to ban non-essential uses of PFAS (HP 1113) in all products. Using a phased approach, the state will ban the sale of new products containing PFAS starting in 2023 and require manufacturers of products containing intentionally added PFAS to notify the Department of Environmental Protection. The Maine Legislature also enacted legislation directing the Department of Health and Human Services to adopt a maximum contaminant level for PFAS in water systems. 
• Michigan—After almost a year of undergoing the rulemaking process, Michigan adopted a set of rules to establish the state’s first PFAS limits for drinking water in July 2020. The Michigan Department of Environment, Great Lakes and Energy developed regulations, which are stricter than the EPA’s guidance on PFAS, limit seven PFAS chemicals in drinking water and cover 2,700 water supplies in the state. The rule also set a new groundwater standard for PFOA (8 parts per trillion or ppt) and PFOS (16 ppt).
• New Jersey—New Jersey has also set limits for PFAS in drinking water that exceed EPA guidance. In June 2020, the New Jersey Department of Environmental Protection finalized regulations to set MCLs for PFAS of 14 ppt for PFOA and 13 ppt for PFOS and added these chemicals to the state’s list of hazardous substances. Notably, New Jersey was the first state to issue a statewide directive ordering companies to address contamination caused by PFAS.
• Pennsylvania—In 2018, Pennsylvania Governor Tom Wolf (D) issued an executive order calling for the creation of a PFAS action team to develop a plan to reduce the sources of PFAS most likely to pose a risk to human health and the environment, including firefighting foam and food packaging materials. Led by the action team, the state has taken steps to begin the process of setting an MCL for PFAS and has approved grants to address PFAS groundwater contamination, among other measures. The state has also taken steps at the Horsham Air Guard Station to treat affected public drinking water supplies in nearby towns. The Pennsylvania General Assembly enacted HB 1410 in 2019, redirecting a portion of future state tax revenue generated on and around the former military installation to a new municipal authority that will use the funds to remediate water contamination and eliminate the surcharges that ratepayers have been paying for clean water.
• Washington—Washington has taken several steps to address PFAS. In 2018, the Washington State Legislature restricted the use of PFAS chemicals in firefighting foam and personal protective equipment (SB 6413), and the Washington State Department of Ecology is working with fire departments across the state to collect and safely dispose of foam. The legislature also enacted HB 2658 in 2018 to prohibit PFAS in food packaging by 2022 if the Department of Ecology is able to determine that safer alternatives are available. 

Addressing PFAS in Drinking Water

Maximum contaminant levels (MCLs), typically set by the EPA, are standards that set the highest level of a contaminant that is allowed in drinking water. Through agency rulemaking or legislation, several states have established or proposed health guidelines, notification levels or MCLs for PFAS in water. States that have proposed or adopted limits for PFAS in drinking water include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Rhode Island and Vermont. States have also passed legislation to require monitoring for PFAS in public drinking water systems.

Some examples of enacted bills include:

• California AB 756 (2019)—Authorizes the State Water Resources Control Board to order a public water system to monitor for PFAS and requires a community water system to report the detection of PFAS.
• New Hampshire HB 1264 (2020)—Sets MCLs for PFAS in drinking water.
• Vermont SB 49 (2019)—Sets maximum contaminant levels for PFAS in water and requires landfills to treat leachate for PFAS.
• Virginia HB 586 (2020)—Requires the commissioner of health to form a work group to study the occurrence of PFAS in public drinking water systems and develop recommendations for MCLs.
• Virginia HB 1257 (2020)—Directs the State Board of Health to establish MCLs for PFAS in all water supplies in the state and requires the board to review MCLs adopted by other states.
• Delaware HB 8 (2021)—Creates the Drinking Water Protection Act and directs the Division of Public Health to work with the Department of Natural Resources and Environmental Control to establish a maximum contaminant level for PFOA and PFOS in public drinking water systems.
• Maine SB 64 (2021)—Directs the Department of Health and Human Services to adopt a maximum contaminant level for PFAS in water systems.
• New Hampshire HB 271 (2021)—Directs the Department of Environmental Services (NHDES) to set maximum contaminant levels for PFAS and enables NHDES to make grants and loans to drinking water and wastewater systems to address contamination.

Addressing Cleanup and Remediation of PFAS

Given that PFAS is one of the world's most intractable pollutants found in just about every facet of society, state legislatures are not only looking for ways to remediate PFAS present in soil and groundwater but are also examining the question of who should pay for the cleanup. In recent years, states have allocated funds for cleanup and remediation at sites contaminated by PFAS chemicals. Remediation activities include the monitoring and cleaning up of drinking water and groundwater, administering programs to collect and dispose of class B firefighting foam, and working with federal partners to address PFAS contamination at federal facilities.

Some examples of recent enacted bills include:

• Alaska SB 19 (2019)—Appropriates funds to the Department of Environmental Conservation to collect data regarding the amount of PFAS that is present in soil and water across the state and to develop an action plan.
• Colorado SB 218 (2020)—Creates the Perfluoroalkyl and Polyfluoroalkyl Substances Cash Fund, which is to be used to administer the PFAS takeback program and the PFAS grant program.
• Connecticut HB 5518 (2020)—Appropriates $2 million for PFAS remediation.
• Florida HB 5001 (2020)—Appropriates funds to continue remediation activities at contaminated sites and address PFAS chemicals.
• Vermont HB 955 (2019)—Appropriates funds to the Agency of Natural Resources for the Department of Conservation’s grants related to improvements for public water systems with concentrations of PFAS above a certain level.
• Washington SB 5092 (2021)—Allocates funding to implement recommendations from state agency chemical action plans, including remediating PFAS contamination in drinking water and monitoring the results.

Addressing PFAS in Packaging and Consumer Products

PFAS have been used in a variety of products, from stain- and water-resistant fabrics and carpeting, to cleaning products, clothing and children’s toys. Certain PFAS chemicals are also authorized by the Food and Drug Administration for use in cookware, food packaging and food processing equipment. In recent years, states have enacted legislation aimed at addressing PFAS chemicals in packaging and consumer products.

Some examples of recently enacted bills include:

• Maine HB 1043 (2019)—Reduces the toxicity of packaging and packaging waste by prohibiting the addition of PFAS in packaging components.
• Maine HB 1113 a (2021)—Bans the use of PFAS in all products, except in instances where its use is currently unavoidable, and requires manufacturers of products for sale in the state that contain PFAS notify state authorities.
• Maryland SB 447 (2020)—Bans toxic flame retardants in furniture, mattress foam, and children’s products.
• Maryland HB 643 (2021)—Prohibits a person from manufacturing or selling cosmetic products in the state that contains certain ingredients, including PFAS.
• Minnesota HB 359 (2019)—Prohibits the use of certain flame-retardant chemicals in certain types of furniture and children’s products, in addition to prohibiting the manufacturing and sale of firefighting foam containing PFAS.
• New York AB 4739 (2019)—Prohibits the use of PFAS chemicals in food packaging materials derived from plant fibers, such as paper.
• New York SB 501 (2019)—Establishes requirements for consumer notices on children’s products containing certain chemicals, including PFOA and PFOS.
• Vermont SB 20 (2021)—Imposes restrictions on the manufacture, sale and distribution of certain products containing PFAS, including food packaging, textiles and ski wax.
• Washington HB 2658 (2018)—Prohibits PFAS in food packaging by 2022 if safer alternatives are identified.