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.
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.
While the federal administration continues to work towards regulating the chemicals, Congress is also working to develop legislation to address them—with more than 80 pieces of legislation introduced within the 116th Congress alone.
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.
Examples of Statewide Efforts
States are taking the lead to regulate PFAS, as noted above and as seen by efforts that are underway in states like Connecticut, 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.
- 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 or MCLs for PFAS in water. States that have adopted or proposed limits for PFAS in drinking water include California, Colorado, Connecticut, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina 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.
Addressing PFAS in Firefighting Foam
PFOA and PFOS are prevalent in firefighting aqueous film-forming foam (AFFF) solutions, which for decades have been used to extinguish flammable liquid fires, also known as class B fires. Most notably used by military installations and airports, AFFF has been linked to the contamination of water in communities in which it was used. While federal action has been slow to eradicate the use of AFFF, states are leading the way with the state of Washington in 2018 banning the manufacture, sale, and distribution of class B firefighting foam, with the exemptions of the military, Federal Aviation Administration certified airports, petroleum refineries and terminals, and certain chemical plants.
Many states have followed suit with usage bans—examples of enacted bills include:
- California SB 1044 (2020)—Requires sellers of firefighter personal protective equipment to provide written notice if the equipment contains PFAS and prohibits a manufacturer of Class B firefighting foam from manufacturing or knowingly selling foam containing intentionally added PFAS.
- Colorado HB 1119 (2020)—Addresses the authority of the state government to regulate PFAS and appropriates funds to the Department of Public Health and Environment.
- Georgia HB 458 (2019)—Prohibits class B firefighting foam for testing purposes if the foam contains PFAS chemicals.
- Indiana HB 1189 (2020)—Prohibits the use of class B firefighting foam containing intentionally added PFAS for training and testing purposes unless the facility has implemented measures to prevent the release of the foam into the environment.
- Maryland HB 619 (2020)—Prohibits the use of class B firefighting foam containing PFAS chemicals.
- Michigan HB 4390 (2020)—Prohibits the use of firefighting foam containing PFAS in firefighter training.
- Michigan HB 4389 (2020)—Requires reports on the use of firefighting foam containing PFAS, and requires the Department of Environment, Great Lakes and Energy to establish a collection program for firefighting foam containing PFAS.
- New Hampshire SB 257 (2019)—Prohibits the use of firefighting foams containing PFAS.
- New York SB 439 (2019)—Reduces the use of PFAS chemicals in firefighting activities.
- New York SB 7880 (2020)—Prohibits the incineration of AFFF containing PFAS substances in certain cities.
- Washington HB 2265 (2020)—Eliminates exemptions from the restrictions on PFAS in firefighting foam.
- Wisconsin SB 310 (2019)—Prohibits the use of firefighting foams that contain intentionally added PFAS substances unless they are being used in emergency firefighting activities or fire prevention operations.
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.
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.
- Maryland SB 447 (2020)—Bans toxic flame retardants in furniture, mattress foam, and children’s products.
- 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.
- Washington HB 2658 (2018)—Prohibits PFAS in food packaging by 2022 if safer alternatives are identified.