More PFAS Definitions, More Problems — Using PFAS Definitions to Avoid Pitfalls in Compliance, Contracting, Insurance Coverage and Permitting

09/24/2024|7 minute read

Key Takeaways

• Because the definition of PFAS in many instances can be quite broad - and can include fluoropolymers, which historically have not been heavily regulated - it is important to work with legal and technical experts to identify chemicals that could meet any of the regulated definitions of PFAS, including definitions based on total organic fluorine count. Some of those standards go into effect on January 1, 2025.
• Supply chain, insurance coverage and environmental permitting considerations surrounding PFAS have the potential to create significant risk to the business enterprise.
• EPA is planning to require the regulation of PFAS in NPDES permits, and such regulation by permitting authorities is already encouraged and, in some instances, in practice.

There's no shortage of laws or regulations governing per- and polyfluoroalkyl substances (PFAS). But how PFAS are defined across federal and state programs is far from consistent. As the regulated community struggles to keep pace, some of the broader definitions of PFAS have swept in fluoropolymers and other PFAS chemicals whose uses are essential to a variety of industries. This rise in regulation has led to an inclusion of PFAS-centered provisions in permits, settlements, insurance policies and supply chain contracts, where the way in which PFAS is defined can be a crucial business consideration.

What Are PFAS?

PFAS are chemicals commonly used in consumer products, manufacturing and industrial applications. These chemicals have been in use since the 1940s for their oil-resistant and water-resistant properties. PFAS have been used in products including cosmetics, food packaging, cookware, apparel, juvenile products and firefighting foam. As well as being ubiquitous, PFAS do not degrade easily. It is for this reason that PFAS are commonly referred to as "forever chemicals." Because PFAS are slow to break down, the chemicals can build up in the environment and in living organisms over time.

At the federal level, the Environmental Protection Agency (EPA) has been active in developing new regulations that seek to limit the presence of specific PFAS in drinking water, waste releases and wastewater discharges. Numerous states also have passed laws focused on limiting the release of PFAS into the environment. Much of EPA's and other environmental agencies' work has been based on developing science including sampling methodology, potential exposure pathways and toxicology studies, oftentimes focused on narrower groupings of PFAS. But states have taken an expansive view, often passing laws with a broad definition of PFAS.

Competing Definitions of PFAS

EPA has primarily taken the approach of regulating PFAS by identifying specific chemicals for regulation. When a specific PFAS is identified, often its salts and structural isomers are included. This has been the case for the Fifth Unregulated Contaminant Monitoring Rule ("UCMR 5"), the Toxics Release Inventory (TRI) Program, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Resource Conservation and Recovery Act, and the Safe Drinking Water Act. In April 2024, EPA finalized two rulemakings regulating specific PFAS. EPA designated perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under CERCLA. EPA also announced the final National Primary Drinking Water Regulation for six PFAS, regulating not only PFOA and PFOS, but also perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), and mixtures containing two or more of PFHxS, PFNA, HFPO-DA and perfluorobutane sulfonic acid (PFBS). The TRI list is broader than others - topping out at 196 PFAS for reporting year 2024 - but, again, these PFAS are enumerated.

The specific enumeration of PFAS by EPA changed with the recent finalization of EPA's rule under the Toxic Substances Control Act (TSCA) Section 8(a)(7) reporting rule, where EPA sought information on a broader group of PFAS. Here, EPA relied on a structural definition of PFAS rather than identifying a specific chemical.[1] If the PFAS has not already been identified on the TSCA inventory, manufacturers must determine whether their PFAS meets one of those three structural definitions for which reporting is required.[2]

Even more difficult for the regulated community is navigating the myriad state definitions of PFAS. More than half of the states have definitions of PFAS currently in their statutes or regulations. Most states have adopted a definition of PFAS that means "a chemical that contains at least one fully fluorinated atom."[3] However, there are some outliers, including Delaware[4] and West Virginia,[5] that require two fully fluorinated carbon atoms. That narrower definition excludes thousands of PFAS, including many fluoropolymers.

To determine whether these PFAS will be regulated within consumer products, nearly every state has required that the PFAS present within the consumer product be intentionally added in a way that provides the product with a specific characteristic or trait for use, such as water-resistant, nonstick or stain-resistant attributes. However, California has taken the lead on regulating PFAS in consumer products even absent that standard. Where the presence of PFAS in a product or product component is at or above certain thresholds, as measured in total organic fluorine, such PFAS is also regulated in some instances. At present, those thresholds for certain consumer products are 100 ppm beginning January 1, 2025, and 50 ppm beginning January 1, 2027.[6] Vermont also recently adopted a similar scheme for certain products. To ensure that consumer products are below these thresholds, product testing may be necessary.[7]

Potential PFAS-Definition Pitfalls

The increased regulation of PFAS has caused entities that may not be required to consider PFAS at present to preemptively include PFAS in other business and legal documents, whether insurance policies, supply chain contracts or environmental permitting.

Insurance Coverage

Insurance companies are issuing requests focusing on the presence of PFAS. These requests are often broad and open-ended. What might at first appear to be a set of innocuous questions may have the potential for significant consequences if sufficient analysis (technical and legal) is not performed prior to responding. Further, businesses that have purchased pollution legal liability insurance may find it worthwhile to review their policy. Often these types of policies require prompt notice when the policyholder discovers a pollution condition or a claim arising from a pollution condition. Whether PFAS meet the policy terms of a pollution condition and whether any claim arising out of a potential PFAS pollution condition is covered by insurance will be dependent on such definitions within the policy.

Supply Chain

Both federal and state PFAS laws require disclosure of PFAS within the supply chain. The most notable of these is the TSCA Section 8(a)(7) reporting and recordkeeping regulations, which require any person that manufactured or imported PFAS or PFAS-containing articles in any year since January 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures and hazards. Given the breadth of the rule, some manufacturers will be required to request information from suppliers. Difficulties may arise where companies seek PFAS disclosure from suppliers for TSCA but do not fully appreciate that the definition of PFAS for responsiveness to TSCA Section 8(a)(7) is more narrow than the definition used by many states where disclosure or notification requirements are in place, such as labeling outdoor apparel for severe wet conditions with a "Made with PFAS chemicals" statement, as will be required in multiple states.

National Pollutant Discharge Elimination System (NPDES) Permitting

In August 2024, the City of Calhoun, Georgia, which operates a publicly owned wastewater treatment plant that receives and treats industrial wastewater from large carpet producers and finishers, entered into a settlement over PFAS contamination of the Coosa River Basin.[8] The industrial wastewater received from the carpet-manufacturing and related facilities had discharged PFAS for decades and the settlement requires Calhoun to implement certain changes to modernize Calhoun's industrial pretreatment program in line with EPA PFAS guidance. Of note, PFAS are not well-defined within the consent decree,[9] but Calhoun is required to "comply with portions of EPA's December 5, 2022, NPDES Guidance."[10]

When EPA published its NPDES PFAS guidance it recommended that states authorized to administer the NPDES permitting program and/or pretreatment program contemplate the reduction of PFAS discharges to waterways and obtain more information through monitoring. For example, for several industries, EPA recommends that state permitting authorities require monitoring and impose best management practices to reduce PFAS discharges. EPA also goes as far as suggesting that state permitting authorities should be using technology and water quality standards, including narrative criteria for water quality, to impose discharge limits for PFAS. Notably, EPA does not define PFAS within this guidance document, although there is reference to the 40 PFAS parameters detectable by Draft Method 1633. EPA seems to be moving in the direction of turning this guidance into a formalized rulemaking. The EPA's most recent Effluent Guidelines Program, dated January 2023 and commonly referred to as Plan 15, provides insight and additional detail on EPA's ongoing PFAS studies and contemplated priorities and next steps to regulate PFAS under the Clean Water Act.[11] In addition, an item titled "PFAS Requirements in NPDES Permit Applications" is listed in the Spring 2024 Unified Agenda. The abstract provided reads, "The list of pollutants in the application regulations [for NPDES reporting under the Clean Water Act] has not been updated since 1987 and currently does not include PFAS. This proposed rulemaking seeks to update requirements for several of the existing NPDES permit applications to address monitoring and/or reporting of PFAS."[12]

With EPA working toward the regulation and monitoring of PFAS in NPDES permits, facilities in certain industrial subcategories should be aware that PFAS monitoring is likely to be a condition within those permits upon renewal or that they otherwise can expect to see information requests for such monitoring from EPA or their respective state permitting authorities. And, even in states where NPDES permitting authority has been delegated, it is reasonable to expect additional EPA scrutiny (or even opposition) during the EPA review period that accompanies the issuance of these permits. It will be important for facilities to understand how PFAS are defined in those instances and to be strategic in their permitting approaches to mitigate PFAS-related risks.

[1] PFAS means:

[A]ny chemical substance or mixture containing a chemical substance that structurally contains at least one of the following three substructures:

• R-(CF₂)-CF(R′)R″, where both the CF₂ and CF moieties are saturated carbons.

• R-CF₂OCF₂-R′, where R and R′ can either be F, O, or saturated carbons.

• CF₃C(CF₃)R′R″, where R′ and R″ can either be F or saturated carbons.

40 C.F.R. § 705.3.

[2] On September 5, 2024, EPA took a direct final action to delay the beginning of the data submission period from November 12, 2024, to July 11, 2025. See 88 Fed. Reg. 72336.

[3]See, e.g.,14 C.C.R. § 17989(a)(22). See also Arizona (Ariz. Rev. Stat. § 36-1696); Arkansas (A.C.A. § 20-22-101); Colorado (C.R.S. § 25-5-1302); Connecticut (C.G.A. § 22a-255h(15)); Georgia (O.C.G.A. § 25-2-41); Hawaii (H.R.S. § 321-601); Illinois (415 ILCS § 170/5); Indiana (IC § 36-8-10.7-3); Kentucky (Ky. Rev. Stat. § 227.395); Louisiana (RS § 40:1615); Maine (38 M.R.S. § 1614(1)(f)); Maryland (MD Code, Env't § 6-1601(e)); Minnesota (Minn. Stat. § 325F.075(c)); Nevada (Nev. Rev. Stat. § 459.678); New Hampshire (N.H. Rev. Stat. § 154:8-b(1)(g)); New Jersey (N.J.S. § 56:8-229(k)); New York (NYCL, Env't Conserv. § 37-0203(6)); Ohio (Ohio Rev. Code § 3737.52); Oregon (O.R.S. § 431A.330(10)); Rhode Island (RI Gen. Laws § 23-18.13-3(12)); Vermont (18 V.S.A. § 1661(5)); Virginia (VA Code Ann. § 9.1-207.1); and Washington (RCW § 70A.400.005(7)).

[4]See Del. Code Tit. 29 § 8092(4).

[5]See W.Va. Code § 29-3-5g(2).

[6] 13.5 Cal. Health & Saf. Code § 108970(g)(2).

[7] Retailers and distributors also may obtain certificates of compliance from manufacturers certifying that PFAS are not present in the product. See 13.5 Cal. Health & Saf. Code § 108971(c).

[8]See Coosa River Basin Initiative v. City of Calhoun, Georgia, Civ. Action No. 4:24-cv-00068-WMR, August 8, 2024.

[9]See id. at 8. PFAS are defined as "per- and polyfluoroalkyl substances," but no further definition is provided. Specific PFAS are identified in subsequent definitions, including PFOA, PFOS, PFNA, PFHxS and PFBS.

[10]Id. at 16-17.

[11] Effluent Guidelines Program Plan 15 (January 2023) available at https://www.epa.gov/system/files/documents/2023-01/11143_ELG%20Plan%2015_508.pdf.

[12] "PFAS Requirements in NPDES Permit Applications," EPA, Unified Agenda, Spring 2024, RIN: 2040-AG34 (https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2040-AG34).

Public link

Please use the above public link if you want to share this noodl on another website.