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Update on Legal and Regulatory Developments Involving PFAS

February 16, 2021

James K. O’Brien

UPDATE:  In the last 3 years, PFAS investigation and remediation has been a major focus of state and federal environmental authorities. This article update covers a few of the significant developments of special importance to Michigan businesses and citizens.


In August 2020, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) adopted maximum contaminant levels (MCL) for several PFAS compounds applicable to municipal drinking water and proposed new cleanup criteria values for these PFAS compounds consistent with the MCL values. The criteria took effect on December 21, 2020.

On January 6, 2021, EGLE announced plans to include additional PFAS compounds (PFNA, PFHxS, PFHxA, PFBS, and HFPO-DA a/k/a “GenX”) in a revision of its cleanup criteria for groundwater used as drinking water source.


On December 19, 2019, EPA released and implemented “Interim Recommendations for Addressing Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctanesulfonate.” This guidance was based on studies, information and recommendations in the EPA Health Advisory for PFOA and PFOS in drinking water [2016].

As of June 11, 2020, EPA identified 233 private and federal facility National Priorities List (NPL) sites with confirmed PFAS detections in ground water. Sampling results exceeded EPA’s health advisories of 70 ppt for PFOA and PFOS at 47 sites. Where sources of drinking water exceeded EPA’s health advisory for PFOA or PFAS, EPA or state authorities have provided alternate drinking water supplies.

EPA is now considering whether it should take additional regulatory steps to designate PFOA and PFOS as hazardous substances and additional regulatory steps to address PFAS contamination in the environment through the formal process known as Advanced Notice of Proposed Rulemaking [ANPRM].

As the EPA’s ANPRM makes clear, past use of PFAS may entangle a wide range of manufacturers and users of these “forever chemicals,” as well as treatment and disposal facilities, in a much more stringent regulatory regime:

  • Aviation operations (NAICS code 488119);
  • Carpet manufacturers (NAICS code 314110);
  • Car washes (NAICS code 811192);
  • Chrome electroplating, anodizing, and etching services (NAICS code 322813);
  • Coatings, paints, and varnish manufacturers (NAICS code 325510);
  • Fire-fighting foam manufacturers (NAICS code 325998);
  • Landfills (NAICS code 562212);
  • Municipal fire departments and firefighting training centers (NAICS code 922160);
  • Paper mills (NAICS codes 322121 and 322130);
  • Petroleum refineries and terminals (NAICS codes 324110 and 424710);
  • Photographic film manufacturers (NAICS code 352992);
  • Polish, wax, and cleaning product manufacturers (NAICS code 325612);
  • Polymer manufacturers (NAICS code 325211);
  • Printing facilities where inks are used in photolithography (NAICS codes 323111 and 325910);
  • Textile mills (textiles and upholstery) (NAICS codes 313210, 313220, 313230, 313240, and 313320); and
  • Wastewater treatment plants (NAICS code 221320).

The ANPRM makes it clear that EPA is seriously considering regulation of PFAS as a Hazardous Substance under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) imposing a legal duty to report releases of PFAS into the environment in amounts that exceed a “Reportable Quantity” (to be established by EPA).

EPA may also regulate discarded PFAS substances as “Hazardous Waste” under the Resource Conservation and Recovery Act (RCRA), which would comprehensively regulate the treatment storage and disposal of PFAS contained in waste streams.


Scores of lawsuits have been commenced in the past several years, both by private citizens and state attorneys general, seeking reimbursement for damages and costs to cleanup contamination from PFAS releases, from manufacturers and users of PFAS. Michigan’s Attorney General is a Plaintiff in two lawsuits, now part of a Multi-District Litigation proceeding pending South Carolina against makers of commercial grade “Aqueous Film-forming Foam (AFFF) and military grade AFFF (both sometimes referred to as “firefighting foam”) manufacturers and distributors.

Another Michigan [federal] case against Wolverine World-Wide, which allegedly used and released PFAS in the course of manufacturing water-resistant shoes, has already advanced to the entry of an Administrative Order on Consent, obligating Wolverine to investigate and assist in remediation of areas of contaminated groundwater in Southwestern Michigan.

A list of some other significant PFAS cases appears in a recent National Law Review article.

If you have specific questions about how these developments may affect your industry or specific business, please contact your environmental consultant, or attorney, or feel free to contact James O’Brien, leader of Dean & Fulkerson’s Environmental Practice Group.

As reference for our readers, following is the earlier article from 2018:

PFAs are in the News: What’s in Your Waste Stream?

Polyfluoroalkylated chemicals – PFAs, are not only in the news, but in Michigan’s groundwater in at least 14 locations in game fish, and in the bloodstream of most Americans. PFAs were widely used for purposes including waterproofing fabrics and textiles, and in food packaging. They are now suspected as a possible cancer-causing agent, and an endocrine disruptor. The Michigan Department of Environmental Quality (MDEQ) has adopted a regulatory guidance from the U.S. EPA, determining that concentrations of certain specific PFAs in concentrations above 70 parts per trillion (ppt) are cause for concern in drinking water supplies.

Michigan has now directed local/municipal wastewater treatment plants (WWTPs), and especially those where PFAs are being detected in the wastewater, to question their industrial sewer users on past usage of PFAs (with some limited exceptions, most PFA users have voluntarily stopped using such chemicals in current manufacturing activities). Past users, and likely sources of PFAs, will have their wastewater discharges sampled and analyzed for two particularly troublesome forms of PFAs (referred to as PFOA and PFOS). Because the chemicals are heavy and persistent, they may continue to show up in waste streams, long after active usage has been discontinued. If these specific PFAs are detected in an industrial user’s wastewater discharge, WWTP operators are directed by the Michigan Department of Environmental Quality to take steps to require their industrial users to reduce the presence of these chemicals in their waste stream. According to a recent MDEQ notice letter:

“Source reduction and elimination efforts may include

  • product substitution,
  • operational controls,
  • pretreatment, and
  • clean-up of historical contamination”

February 20, 2018 MDEQ Letter to Wastewater Treatment Plant Operators with Industrial Pretreatment Programs

All of these source reduction efforts may involve expense, but “cleanup of historical contamination” may involve significant expense. If you think your past manufacturing activities may have involved the use of PFAs, now is the time to prepare, by reviewing your manufacturing records, to see if they show any past use of PFOA or PFOS, and if so, the amounts and time periods involved, and especially any records showing disposal or diversion of waste PFA chemicals to a facility other than your sewer waste stream.