In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, several states have started the process of regulating PFAS in groundwater themselves. As a result, states have adopted a patchwork of regulations and guidance standards that present significant compliance challenges to impacted industries. This client alert explores the current landscape of state regulations regarding the advisory, notification, and cleanup levels for PFAS – typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”) – in groundwater.

The United States Environmental Protection Agency (“EPA”) started the new year by finalizing two rules involving per- or polyfluoroalkyl substances (“PFAS”) under the Toxic Substances Control Act (“TSCA”) and the Toxic Release Inventory (“TRI”).  The first rule requires industries to consult with EPA before using any of the designated 329 inactive PFAS substances.  The second rule adds seven PFAS substances to the list of chemicals that entities must report. The details of the new rules are below, but these actions demonstrate EPA’s continued commitment to regulate PFAS substances under a wide range of environmental laws.

Numerous states have either enacted or proposed regulations regarding per- or polyfluoroalkyl substances (“PFAS”) present in Class B Aqueous Film-Forming Foams (“AFFF”) used for firefighting, or present in firefighters’ clothing and equipment. These regulations typically involve restrictions in four general areas:  Discharge or Use Restrictions. These regulations usually limit or prohibit the use of AFFF in training or testing exercises, and may only allow the use of AFFF in active firefighting situations; Disposal, Storage, Inventory or “Take-back” Provisions. Some states have enacted state run programs to purchase and dispose of AFFF, usually purchasing supplies from government agencies; Notification or Reporting Requirements. When continued use of AFFF is allowed, some states have required that businesses report specific details regarding their discharge; and Limitations on Personal Protective Equipment (“PPE”). Some states have limited or prohibited PPE for firefighters that contains PFAS compounds.

In the absence of enforceable federal standards for per- and polyfluoroalkyl substances (“PFAS”) in soil, several states have started the process of regulating PFAS in soil themselves.  These regulations have implications for due diligence, site investigations, and remediation decisions.  This client alert explores the current landscape of state regulations regarding the advisory, notification, and cleanup levels for PFAS – most commonly perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in soil.

As general awareness of per- and polyfluoroalkyl substances (“PFAS”) has continued to rise in recent years, courts have experienced an increase in civil lawsuits alleging false and misleading advertising in corporate marketing statements for consumer products.  Most of the lawsuits filed in 2021 and 2022 focused primarily on four categories of products: Food and Food Packaging; Cosmetics; Clothing and Textiles; and Personal Care Products. The question that many businesses are facing is what claims can create a risk of litigation if PFAS may be present in their products.  To answer that question we examined the applicable lawsuits and compiled a summary of the marketing statements and advertisements identified by plaintiffs as allegedly false or misleading.  We then compared these marketing statements across all industries, as well as within the four specific industries listed above, to identify emerging trends that were frequently cited in litigation.  While not an exhaustive list, these summaries will help businesses prioritize which statements should be addressed as soon as possible to mitigate their litigation risk if they believe that PFAS may be present in their products.     For additional information, please refer to our state-by-state guides for PFAS in consumer products and PFAS in food packaging. 

On June 8, 2023, Governor Mills executed LD 217 which extends the deadline for reporting products that are sold in Maine that contain intentionally added PFAS materials to January 1, 2025. The law also clarifies some of the reporting requirements and includes an exemption for small businesses. Maine’s original PFAS law, passed in 2021, requires businesses to disclose the nature and purpose of all intentionally added PFAS compounds in products sold in Maine by January 1, 2023. Although the Maine Department of Environmental Protection (“DEP”) granted extensions to over 2,500 businesses, the Maine Chamber of Commerce and various businesses have continued to advocate for a global extension and additional revisions to specific requirements of the law. Accordingly, LD 217 was recently enacted to clarify and amend Maine’s original law.