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How states are looking to control PFAS through different legislative models

States across the U.S. have been introducing and enacting legislation to restrict or remediate PFAS at a breakneck pace, with varying approaches and models. This AgencyIQ analysis reviews recently proposed or enacted legislation, with an eye to understanding how these models could be implemented more broadly.

BY WALKER LIVINGSTON, ESQ | MAY 7, 2024 10:50 PM CDT

Background: PFAS

  • Per- and polyfluoroalkyl substances are a large group of synthetic organic chemicals used in many different industrial, commercial, and consumer applications since the 1940s. The classic hallmark of a PFAS is a chain of fully fluorinated carbon atoms. This means that at least one carbon atom has all hydrogen bonds replaced with fluorine bonds, creating an extremely strong molecule. Carbon-fluorine bonds are some of the strongest in nature, meaning that PFAS can persist in the environment and resist a wide variety of environmental stressors.
  • The historical ubiquity of PFAS in consumer products means it is frequently released into the environment as well. PFAS have been used in a wide variety of consumer products, often for their ability to repel both water and oil. This has led to PFAS applications in textiles, high-performances coatings, cleaning products, semiconductors, and firefighting foams (AFFFs). PFAS contamination has been found in many different areas around the U.S., with the U.S. Geological Survey estimating in 2023 that at least 45% of the country’s tap water is contaminated with PFAS. PFAS contamination can stem from industrial facilities where PFAS are used and subsequently released into the environment (or created via processes or as impurities or byproducts) as well as at military bases, airports, and other areas that use AFFFs for testing, training, or extinguishing fires.

Recently enacted legislation

  • Maine: On April 16, 2024, Maine Governor JANET MILLS approved L.D. 1537, An Act to Amend the Laws Relating to the Prevention of Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, which contains several important notification and prohibition provisions, including exempting different products from state notification requirements for PFAS, including for medical devices, drugs, and biologics. As of January 1, 2026, the law will implement a variety of new prohibitions on intentionally added PFAS in products, including in cookware, cosmetics, cleaning products, and most textiles. By 2029, this will include artificial turf as well as outdoor apparel for severe weather conditions (unless it is accompanied by a specific warning statement). In general, the law also pushes out a prohibition on almost all products with intentionally added PFAS from January 2030 to January 2032, except for some cooling, heating, and refrigerant products which will be allowed until 2040.
  • Kentucky: On April 5, 2024, Kentucky Governor ANDY BESHEAR signed Senate Joint Resolution (SJR) 149, which directs the state’s Energy and Environment Cabinet to provide guidance and consultation on best management processes for discharges of water that contain PFAS. The resolution appears to be mostly intended for entities that discharge directly or indirectly into Kentucky waters and will require that the Energy and Environment Cabinet provide guidance on management practices for wastewater that may contain PFAS. This guidance will include options to meet U.S. EPA restrictions, cost-benefit analyses on available options, and how state funding may apply to any implementation of best practices.
  • Virginia: On April 2, 2024, Virginia Governor GLENN YOUNGKIN approved HB 1085, which focused on identifying and reporting on PFAS use and manufacture in addition to creating an expert panel for PFAS. The bill will require the state to identify sources of PFAS in each public water system (PWS) via quarterly testing, with the Virginia Department of Environmental Quality (VDEQ) leading the effort. The bill calls on the department to utilize validated available EPA test methods to conduct this testing, in addition to developing a plan to identify significant sources of PFAS for the raw water of a PWS by October 2024. The bill will also require any facility that is deemed to be a potential source of PFAS that discharges into a PWS, Virginia water bodies, or a publicly owned treatment works (POTW) to report PFAS usage to the state. The VDEQ will require a facility disclose its manufacture or use of PFAS, the chemical names and CAS RNs of specific substances, the amount of PFAS manufacture or used in the preceding 12 months, and “ any additional information reasonably required by the Department to ascertain sources and quantities of PFAS manufactured or used.” VDEQ will allow the submitters to claim portions of the report as confidential.
  • Virginia (Continued): HB 1085 will also require potential sources of PFAS to test quarterly for one year to determining a representative sample for discharges of water potentially containing PFAS. This will include facilities subject to the reporting requirements, as well as other traditional sources of PFAS, including semiconductor or paper manufacture, fabric treaters and leather tanneries, and other areas expected to contain PFAS-contaminated soil or groundwater. The bill also establishes a PFAS Expert Advisory Committee, which will assist the VDEQ in identifying PFAS sources, public and private lab testing capacity issues, and options for reducing PFAS in source waters. This will include representatives of PWS and wastewater systems, public health organizations, and other experts to assist the agency in determining public policy. The Committee will meet at least twice per year and will issue annual reports by October 1 on its activities related to PFAS assessments.

Recently introduced legislation

  • North Carolina: On May 1, 2024, North Carolina State Representative JOHN AUTRY introduced HB 973, a bill to ban intentionally added PFAS in food packaging. The bill seeks to ban the use of intentionally added PFAS (defined as “a class of fluorinated 5 organic chemicals containing at least one fully fluorinated carbon atom”) in food packaging. The bill would ban the use of PFAS introduced to have a functional or technical effect, or for processes where PFAS would be reasonably known to be present (including processing and mold release agents or fluorination). Food packaging manufacturers would also be required to provide a certificate of compliance that the manufactured food packaging does not contain intentionally added PFAS (though PFAS present as a byproduct or impurity may not need to be mentioned).
  • Alaska: On February 10, 2023, Alaska State Senator JESSE KIEHL introduced SB 67 ( most recently amended version), an act that would prohibit the use of PFAS-containing AFFFs in the state (unless required by federal law). The law would still allow the use of PFAS-containing AFFFs to respond to fires that spark from “oil or gas production, transmission, transportation, or refining,” unless the state fire marshal adopts regulations that determine that an alternative foam will meet requirements. If passed, the law would go into effect in January 2025.
  • New Hampshire: On January 1, 2024, New Hampshire State Senator DENISE RICCIARDI introduced SB 413 ( most recently amended version), which would create a new private right of action for PFAS. The State senate passed the bill on April 5, 2024, and the bill is currently due out of the House on May 16, 2024. The state’s attorney general would be able to bring this action against any person who owns or operates a PFAS facility where releases of PFAS have led to combined ground or surface water combinations of above 10,000 ng/L (parts per trillion) for all PFAS. The state would be able to recover all costs related to the containment, cleanup, restoration, or other remediation required for a contaminated site against the owner or operator of a PFAS-releasing facility.

Takeaways

  • The bills, enacted or proposed, represent a suite of different planned regulatory actions to target PFAS contamination that crosses industry borders and will affect a wide array of companies, governments, and individuals. The bills cover everything from prohibitions to notification requirements, and many may face significant opposition before they are passed or as they are implemented after they are enacted as a result of their impacts on certain industries.
  • Prohibitions on PFAS in products. State legislatures are increasingly interested in banning the use of PFAS in products. These bans can take many forms and can vary wildly based on the scope of the bill as well as the targeted substances. Most bans focus on the use of intentionally-added PFAS. However, some states are also including PFAS concentrations above a specific threshold as a way to catch additional products that might not be regulated under an “intentionally added” definition. States like Alaska and North Carolina are taking a more surgical approach in regulating PFAS based on these bills, targeting well-known exposures from AFFFs or from food packaging. However, Maine (and some other states) have more broadly focused on banning all intentionally added PFAS in products after a certain date. Maine has run into significant issues with planning how to implement this ban however and has already moved the effective date back two years, to 2032, from when it was initially envisioned.
  • More comprehensive reporting from facilities that use or release PFAS. The Virginia bill focuses on a set of provisions that would require that facilities provide additional information on PFAS used and released, which appears as of now to be a more comprehensive disclosure (at least in terms of substances) than would be required under a federal EPA Toxics Release Inventory report. The complicated nature of individual state regulations on the reporting of specific PFAS may require additional compliance resources to effectively complete both reporting and testing on time. These requirements would also require additional resources to track what state requires what type of recording, which could lead to a confounding patchwork of regulation across the states.
  • Soliciting expert opinions on PFAS. Realizing the paucity of knowledge that most statehouses have on PFAS compared to experts, Virginia’s decision to create a PFAS expert advisory committee could be a model for other states as well. Although the ambit of the committee is relatively specific, the approach could be expanded in the state (or other states) to allow experts to provide policy advice on what methods for identifying and remediating PFAS contamination in a variety of settings.
  • Targeting facilities that use or release PFAS for cleanup and remediation costs. Although the EPA has designated PFOA and PFOS under the federal Superfund law, which will likely kickstart litigation, states may not possess the same breadth of civil or criminal actions to target companies that have contaminated areas with PFAS. The New Hampshire bill which would seek to create a civil action to recover cleanup and remediation costs could lay a basis for PFAS-related civil action bills around the country.

To contact the author of this analysis, please email Walker Livingston ( wlivingston@agencyiq.com).
To contact the editor of this analysis, please email Alexander Gaffney ( agaffney@agencyiq.com)

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