On June 27, 2022, two new laws went into effect to place limits and regulate the levels of certain Per-and Polyfluoroalkyl Substances (“PFAS”) chemicals in drinking water, ground water, surface waters, and landfills (H7223/S2298) as well as in food packaging (H7438A/S2044A). This effort comes after several years of testing and concerns over the adverse health impacts caused by these chemicals. These health impacts were dramatized recently in a 2019 legal thriller film called “Dark Waters”.
PFAS related chemicals were first developed and widely used, beginning in the 1940s, and used in firefighting foam, non-stick cookware, water and stain resistant carpets and textiles, and food packaging (to name a few common products). PFAS are also present in many to-go packaging, paper, cardboard, dental floss, shampoo and water-resistant cosmetics, electronics, cell phones, and other common consumer products.
With these growing concerns, the new Rhode Island legislation recognizes that these chemicals are potentially toxic in very small quantities and that, once in the environment or ingested, are highly persistent. These chemicals are linked to health impacts such as certain cancers, thyroid issues, infertility, and immune deficiencies, to name a few related health concerns. While the bill regulates six compounds, thousands of PFAS chemicals exist. So, what is Rhode Island doing about this problem?
The first new law, “PFAS in Drinking Water, Groundwater and Surface Waters,” sets an interim drinking water standard of twenty parts-per-trillion (PPT) for six PFAS compounds (one PPT is roughly equal to a grain of sand in an Olympic size swimming pool). Water suppliers will be required to begin monitoring and testing for the presence of PFAS chemicals in their drinking water supplies. If PFAS levels are found above the interim standard, then treatment or alternate supply of water must be implemented. The Department of Health has until 2024 to set permanent standards for PFAS in drinking water. The Department of Environmental Management also has until 2024 to set standards for PFAS in groundwater, surface waters, and landfills. In addition, the law requires state agencies to investigate potential sources of PFAS contamination.
The second new law, attempting to control the leaching of PFAS out of fast-food packaging from solid waste disposal, amends the Rhode Island “Toxic Packaging Reduction Act” to prohibit, as of January 1, 2024, the sale or promotional distribution of any food package in Rhode Island that contains PFAS.
These first efforts to control the levels of PFAS in the environment in Rhode Island do not come without confusion. On June 15, 2022, the U.S. Environmental Protection Agency (“EPA”) released a “health advisory” indicating that even extremely low levels (near zero) of certain PFAS chemicals may be dangerous to human health. EPA’s last PFAS update before this 2022 health advisory was in 2016. Since then, the agency has been the subject of criticism for its failure to investigate and provide guidance on these family of chemicals. The previous EPA health advisory limited PFOA and PFOS, two of the most common PFAS compounds, to less than 70 PPT.
Notably, the EPA now warns of safe levels that are much lower than the new Rhode Island standards. For example, while the Rhode Island interim standard is to be set at 20 PPT, the EPA’s new health advisory (these are non-binding and are not enforceable at this point) would set the limits at below 0.02 PPT for the PFOS chemicals and 0.004 PPT for the PFOA chemicals, even though these EPA advised limits are reported to be below any available laboratory detection limit.
This most recent EPA health advisory recommends limiting exposure to PFOA and PFOS to level measured in parts-per-quadrillion, a significantly more stringent standard. Research by the EPA found even these near-zero concentrations—which are below the agency’s current ability to detect—can result in potential negative health effects. And, while these EPA limits may not be enforceable at this time, many states rely on this data for decision making purposes. It remains to be seen what impacts this new EPA advisory will have on Rhode Island’s new PFAS regulatory efforts. Also, the EPA health advisory does not set regulatory limits for drinking water; however, the agency will likely release federal drinking water standards by the end of the year. When the EPA does release their final standards, state standards must then either meet or exceed federal standards.
EPA is expected to also designate certain PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability (CERCLA) Act and the so-called Superfund authority – for reporting, clean up and liability.
The new Rhode Island laws and the EPA health advisory pose compliance challenges for the regulated community and impacted stakeholders, including: 1) whether the Department of Health moves to align the much stricter EPA standards with Rhode Island’s final PFAS limits; 2) what treatment and remedial options will be necessary for drinking water suppliers; 3) whether private parties and governments cleaning up contaminated properties should look closer or revisit remediation goals or clean-up efforts if PFAS are present on the site; and 4) what should packaging companies and distributors be doing to limit their liability under the new packaging restrictions.
Because of the ubiquitous presence of these PFAS chemicals and the very low levels at which they will be regulated by both the federal and state governments, businesses, water suppliers, packagers, and others should assess take steps to manage exposure and to evaluate efforts to reduce risks and potential costly clean-ups or enforcement/litigation efforts.
Thanks to Stephan Maranian, 2022 Summer Associate, for his significant contributions to this blog post.