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 in the last decade as an issue of increasing interest to state legislatures and the federal government. 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 of their 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, including carpeting, paper packaging, nonstick and weather-resistant coatings, rubber and plastics. As such, most people have been exposed to PFAS at some point in their lives, 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.

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, 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 2020 toxicological profile of PFAS also indicates that high levels of the chemicals in the blood may decrease the body’s ability to respond to vaccines. Given the negative public health impacts, it is alarming that 95% of people tested since 1999 were found to have PFAS in their bodies, according to the National Health and Nutrition Examination Survey performed by the Centers for Disease Control and Prevention. 

Given the widespread exposure to PFAS in the U.S., state legislatures and the federal government are acting to mitigate the public health impacts and address the environmental degradation that 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 these chemicals. In 2016, the EPA published a nonenforceable health advisory on PFOA and PFOS, establishing safe levels of the chemicals in drinking water at no more than 70 parts per trillion. Following several meetings with other federal, state and local government stakeholders, the agency unveiled a formal PFAS Action Plan in 2019.  

In the plan, the EPA outlines the long- and short-term actions it plans to take concerning 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 updated the plan in February 2020, outlining actions taken to address and mitigate the chemicals in the environment.  

To date, the agency has published groundwater cleanup guidance; 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; released drinking water health advisories for several PFAS chemicals under the Safe Drinking Water Act; and announced a new testing method for 11 additional PFAS chemicals in drinking water. All ongoing EPA actions can be found here. The agency also announced about $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 the chemicals. 

The EPA also announced its intent to propose a new rule designating PFOA and PFOS as hazardous substances under the Superfund law. The action is in line with the agency’s PFAS Strategic Roadmap. By designating the chemicals under the Comprehensive Environmental Response, Compensation and Liability Act, as the Superfund law is formally known, the federal government may take actions at a contaminated site or transfer necessary funds and management responsibility to a state or tribe. A Superfund designation would require facilities to report on PFOA and PFOS releases that meet or exceed selected reportable quantities and would enhance the ability of federal, tribal, state and local authorities to obtain information regarding the location and extent of those releases. The designation would also allow the EPA or other agencies to recover cleanup costs from the responsible party or require said party to conduct the cleanup. 

Notably for states, the EPA moved forward in March with the development of a national drinking water regulation to establish legally enforceable levels—also known as maximum contaminant levels (MCLs)—for six per- and polyfluoroalkyl substances chemicals: perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), perfluorononanoic acid (PFNA), GenX chemicals, PFHxS and perfluorobutane sulfonate (PFBS). 

The EPA’s proposed regulations set the MCL for PFOA and PFOS at 4.0 parts per trillion, and a “group” MCL for PFHxS, PFNA, PFBS and GenX chemicals at 1.0 (unitless). The proposed regulation would require public water systems to monitor PFAS levels in drinking water, notify the public of those levels and reduce the levels if they exceed the standards.  

While no action is required until the rulemaking is finalized, the regulations would preempt previously established state drinking water regulations or guidance values for some PFAS. When the final regulations go into effect, states will be required to set their standards to at least those levels.

State Action

State policymakers have targeted PFAS substances with a variety of approaches. In recent years, states have enacted laws restricting PFAS in firefighting foam; regulating the presence of PFAS in drinking water, food packaging and consumer products; and allocating funds for cleanup and remediation; among other measures.  

In addition to passing legislation, states have also addressed PFAS through agency rulemaking, such as adopting standards for PFAS levels in water supplies. Further, states have addressed PFAS through legal action. At least nine states—California, Colorado, 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, lawmakers introduced 76 PFAS-related bills and supplemental appropriations. In 2019, states enacted at least 15 bills to address PFAS by providing funding for remediation, regulating the chemicals in drinking water systems, and restricting them in firefighting foam and other products. Vermont, for example, passed a bill setting maximum contaminant levels for PFAS in water and requiring landfills to treat leachate for the chemicals. Minnesota enacted a bill to prohibit the use of certain flame-retardant chemicals in some 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 regulating PFAS in firefighting foam and consumer products, establishing MCLs for PFAS in drinking water and appropriating funds for remediation, among other efforts. 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 addressing PFAS in drinking water. 

In 2021, state legislatures considered at least 196 bills on PFAS, including efforts to eliminate the chemicals from food packaging, ban their use in firefighting foam, establish drinking water standards, and eliminate PFAS 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 state agency recommendations to remediate drinking water sources and monitor the results. States also considered policies to address 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 corporations to pay for remediation of water contaminated by PFAS. 

Last year, lawmakers considered more than 200 bills with PFAS-related language, with at least 18 states enacting nearly 50 bills on PFAS in firefighting foam, firefighter personal protective equipment, food packaging and environmental remediation. Lawmakers also put forth bills to address PFAS in consumer products like clothing, children’s products, cookware, furnishings, cosmetics and ski wax. Other bills of note included a Maryland initiative to eliminate mosquito-control products containing PFAS and legislation in Indiana would have established blood test for those at higher risk of PFAS exposure. Massachusetts considered a bill intended to reduce emissions in the air through a moratorium on PFAS-emitting structures or activities. New athletic turf containing PFAS would have been restricted by language considered by the Vermont legislature.  

Examples of Statewide Efforts

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

• Connecticut—Gov. 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 legislative opportunities and recommends actions to protect residents and the environment from the effects of PFAS, including remediation and prevention. In 2020, the Connecticut General Assembly appropriated $2 million (HB 5518) for PFAS cleanup and remediation.  
• Maine—In January 2020, the PFAS Task Force published its report and recommendations, and in 2021 became the first state to ban nonessential 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. In 2022, the state also began to restrict PFAS from pesticides.  
• Michigan—In July 2020, the state adopted a set of rules to establish its first PFAS limits for drinking water. The Department of Environment, Great Lakes and Energy developed PFAS regulations that are stricter than the EPA’s guidance, limit seven of the chemicals in drinking water and cover 2,700 water supplies in the state. The rule also set new groundwater standards for PFOA (8 parts per trillion, or ppt) and PFOS (16 ppt). 
• New Hampshire—In 2022, HB 1546 directed the Department of Environmental Services to conduct annual reviews of current research concerning the human health effects of airborne PFAS exposure.  
• New Jersey—In 2020, the New Jersey Department of Environmental Protection finalized regulations to set more stringent limits for PFAS in drinking water than those called for in EPA guidance and added the chemicals to the state’s list of hazardous substances. Notably, New Jersey issued the first statewide directive ordering companies to address contamination caused by PFAS. 
• Pennsylvania—In 2018, the governor issued an executive order calling for the creation of a PFAS action team to develop a plan to reduce the use of firefighting foam, food packaging and other materials that contain the chemicals. The state has since taken steps to establish an MCL for PFAS and has approved grants to address PFAS groundwater contamination. The state has also moved to treat public drinking water supplies affected by PFAS at the Horsham Air Guard Station. The General Assembly (HB 1410;  2019) redirected 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 customers have been paying for clean water. 
• Washington—In 2018, the Legislature restricted the use of PFAS chemicals in firefighting foam and personal protective equipment (SB 6413). The Department of Ecology is working with fire departments across the state to collect and safely dispose of foam.  

Addressing PFAS in Drinking Water

Maximum contaminant levels (MCLs), typically set by the EPA, are standards that define the highest level of a contaminant that is allowed in drinking water. Through agency rulemaking or legislation, nearly half the states have established or proposed health guidelines and notification levels or MCLs for PFAS in water. These states 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, Vermont and West Virginia. States have also passed legislation to require monitoring for PFAS in public drinking water systems. 

Examples of enacted bills include:

Addressing PFAS in Firefighting Foam

PFOA and PFOS are prevalent in firefighting aqueous film-forming foam solutions, which for decades have been used to extinguish flammable liquid fires, also known as class B fires. Used primarily by military installations and airports, AFFF, as the solutions are known, has been linked to the contamination of water in communities where it was used. States are leading the way to eradicate the use of AFFF, with Washington in 2018 banning the manufacture, sale and distribution of class B firefighting foam, with exemptions for the military, Federal Aviation Administration-certified airports, petroleum refineries and terminals, and certain chemical plants.

Many states have followed suit with usage restrictions and bans; examples of enacted bills include:

Addressing PFAS Cleanup and Remediation

Given that PFAS is one of the world’s most intractable pollutants, found just about everywhere, state legislatures not only are looking for ways to remediate the chemicals in soil and groundwater but also are examining the question of who should pay for the cleanup. In recent years, states have allocated funds for cleanup and remediation of contaminated sites. These efforts may include the remediating and monitoring 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. 

Examples of recently enacted bills include: 

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. Some of the 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 to address PFAS chemicals in packaging and consumer products. 

Examples of recently enacted bills include: