WASHINGTON (Legal Newsline) - New leadership in President Joe Biden's Environmental Protection Agency could usher in new environmental regulations, including those on polyfluoroalkyl substances, or PFAS.
The agency has the power to classify PFAS chemical as hazardous without Congressional approval, Corinne Snow, a Vinson & Elkins attorney and former chief of staff to the Environment and Natural Resources Division of the U.S. Department of Justice, told Legal Newsline.
“EPA can do it, but they have to do it through the rule-making process,” Snow said. “They would have to issue a proposed regulation and first put that out for public notice and comment. And then they would have to issue a regulation."
The regulation could be challenged in court.
Congress could also designate PFAS as hazardous through legislation, she said. Democrats in Washington have tried to have the chemicals designated as "hazardous" under the federal Superfund law, subjecting countless businesses to liability.
The EPA has taken “initial steps” that could lead to more regulations than the current advisory level of 70 parts per trillion that has been undercut by several states that have hired private lawyers on contingency fees to sue companies like DuPont and 3M.
Michael Regan, the Biden Administration’s proposed director of the EPA, was formerly director of the North Carolina Department of Environmental Quality.
“He has dealt with these issues in his former role in North Carolina,” Snow said. “We don’t know what EPA is going to do. But based on statements made by Biden on the campaign trail, we can expect there will be further regulatory action. But we don’t know what that’s going to look like yet.”
PFAS were used in many household products such as stain-and water-repellent fabrics, Teflon, polishes, waxes and paints and in fire-fighting foams.
"There is evidence that exposure to PFAS can lead to adverse health outcomes in humans," the EPA says on its website. But research is far from complete and evidence of many links to cancers "remains sparse," a recent study found..
If PFAS are classified as hazardous, companies that produced them will face litigation in addition to the federal multidistrict proceeding in South Carolina. Governments and private landowners could also face new challenges.
“The chemicals last so long and they’ve been used by so many people that the vast majority of states are going to have issues in terms of drinking water,” Vinson & Elkins attorney Conrad Bolston said.
“Many landowners could have have issues with contamination. The chemicals don’t break down. With other types of pollution, the chemicals can evaporate, they can break down in water. PFAS presents a different problem.”