EPA Regulations – PFAS as Far as the Eye Can See

The U.S Environmental Protection Agency’s latest announcement of its National Enforcement and Compliance Initiatives for 2024-2027 adds addressing exposure to per- and polyfluoroalkyl substances (PFAS) as a new regulatory priority. PFAS, also known as “forever chemicals,” are a broad class of chemical compounds known for their durability, heat resistance, and waterproof qualities, and were developed for countless industrial and consumer goods applications going back to the 1940s. Those same qualities make certain PFAS persistent if released into the environment, bioaccumulative, and potentially toxic. With the EPA’s announcement, expect to see a growing number of PFAS-related regulations and enforcement issues over the next several years. Here is a summary of PFAS regulations on the near horizon.

In April 2023, EPA announced a proposed rulemaking to designate two widely used PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). EPA expects the final rule to come out in February 2024. CERCLA is a remediation and cost-recovery mechanism that allows private parties and the government to bring litigation to recover costs associated with cleanup of CERCLA hazardous substances. CERCLA is a strict liability statute – no finding of “fault” is necessary. CERCLA liability is joint and several, meaning any potentially responsible party, including present owners and operators, generators, and transporters of the hazardous substances, could be held accountable for the entire cost of cleaning up a contaminated site, even if other entities were also responsible. Needless to say, designation of the two PFAS under CERCLA will have far-reaching implications, especially to industries where those designated PFAS have been used and released into the surrounding real property.

The EPA is also laser-focused on PFAS in drinking water. In March 2023, EPA proposed drinking water standards for six PFAS under the Safe Drinking Water Act (SDWA). EPA expects to issue the final rule in December 2023. The final rule will require public water system operators to monitor and treat public water supplies for those specific PFAS, so in the near future consumers may receive notice and instructions from their water system operators if those PFAS exceed certain levels in drinking water.

EPA also seeks to increase PFAS reporting requirements. Under the Emergency Planning and Community Right to Know Act’s (EPCRA) Toxic Release Inventory (TRI) reporting rule, the EPA has designated PFAS as “chemicals of special concern,” and removed the previous small amount exemption for PFAS reporting. Suppliers and manufacturers that use small amounts of PFAS will now fall under EPA scrutiny with respect to use and reporting. Also, the EPA recently finalized a reporting and recordkeeping rule for PFAS manufacturers and importers under the Toxic Substances Control Act (TSCA). That rule will be effective Nov. 13, 2023.

Needless to say, the EPA is doggedly pursing PFAS over the next several years. Now is the time for the regulated community and the public to scrutinize the presence of PFAS in their respective use and consumption and take measures to address PFAS-related risks.

This article first appeared in The Journal Record on November 6, 2023, and is reproduced with permission from the publisher.