The new year will be a busy one for federal and state per- and polyfluoroalkyl substances (PFAS) regulations. There are a number of new federal rulemakings, including those under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Safe Drinking Water Act, slated to be announced over the next few months that may shape PFAS regulation (and litigation) for years, if not decades, to come. Likewise, there are new state regulations slated to go into effect that will significantly impact the manufacture, import, marketing and sale of a wide variety of products containing PFAS. While there is much that is already known about new PFAS regulations, there are also a number of critical unknown factors that could shape PFAS regulations, including the final language adopted in rulemakings, potential litigation of key rulemakings, and new legislation of PFAS by state legislatures and Congress. Chemical and product manufacturers, importers, and retailers will need to continue to closely monitor legal developments to manage PFAS-related risks.
A Flurry of New Federal Rules in an Election Year
The Environmental Protection Agency (EPA) is expected to finalize several key rulemakings that will impact regulation of PFAS. Some of the rules may be subject to legal challenges or even Congressional action.
CERCLA Rulemaking for PFOA and PFOS
The most consequential federal rulemaking is EPA’s proposed designation of two PFAS chemicals as hazardous substances under Section 102(a) of CERCLA. Proposed Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances | US EPA. The rule was initially proposed in September 2022. After a series of delays, the rule has been sent to the White House Office of Management & Budget (OMB) and is expected to be finalized in March 2024. EPA’s new CERCLA rule is expected to have wide-ranging impacts on chemical manufacturers and secondary users who disposed of waste containing PFOA and PFOS. As proposed, the rule does not include exclusions from liability for water utilities and wastewater treatment plants, landfills, farms with applied biosolids, airports and fire training facilities. EPA has indicated it may provide contribution protection to these potentially responsible parties under CERCLA as a matter of Agency policy, but such discretionary protections may not be feasible. CERCLA PFAS Enforcement Listening Sessions | US EPA.
EPA’s CERCLA rulemaking could face legal challenges or even be superseded by congressional action. A number of proposed bills are pending in Congress that might narrow the scope of CERCLA liability under EPA’s proposed rule. Lummis Introduces Legislation to Protect Industries from Frivolous Lawsuits » Senator Cynthia Lummis (senate.gov); Stakeholder Comment on Draft PFAS Legislation – Majority News – U.S. Senate Committee on Environment and Public Works.
There is little controversy as to whether EPA intends to use CERCLA as an enforcement tool to address PFAS contamination. EPA has identified PFAS as one of only six national enforcement and compliance initiatives for 2024-2027, even though the CERCLA rule has not been finalized yet and there are few other national enforcement tools available for PFAS. EPA Announces Federal Enforcement Priorities to Protect Communities from Pollution | US EPA.
Safe Drinking Water Act Standards To Be Finalized
EPA also expects to finalize new drinking water standards for PFOA, PFOS and four other PFAS chemicals under the Safe Drinking Water Act. The final rule was sent to OMB for review in mid-December. EPA Sends PFAS Drinking Water Rule To OMB For Interagency Review | InsideEPA.com. The draft maximum contaminant limits for PFOS and PFOA were set at 4 parts per trillion (the current threshold for detection) in the draft rule. Per- and Polyfluoroalkyl Substances (PFAS) | US EPA. EPA is in the process of collecting data on PFAS from municipal water systems pursuant to the Unregulated Contaminant Monitoring Rule (UCMR) 5. In August 2023, EPA released the first sampling results for 29 PFAS sampled from these systems. EPA will continue to collect data on PFAS under UCMR 5 through 2025.
New State PFAS Regulations Effective January 1
A number of new state PFAS regulations have become effective as of January 1, 2024. State legislatures are expected to remain busy in 2024 with new legislation requiring consumer notices for PFAS and consumer product bans on PFAS in a variety of products with many states focusing on food packaging, cosmetics, children’s products, textiles, carpets, fabric treatments, and cookware.
In California, Assembly Bill 1200 (A.B. 1200) requires labeling of chemicals on a designated list (including PFAS) on cookware. The law also bars the practice of advertising that cookware is PFAS-free if the cookware contains any PFAS (applying a broad definition of PFAS that includes many fluoropolymers). Late last year, the California Attorney General stated that his office may bring enforcement actions for failure to comply with A.B. 1200, seeking civil penalties, restitution, injunctive relief and criminal liability for violations of the law. A.B. 1200 Enforcement Advisory (1).pdf (ca.gov).
Colorado’s Perfluoroalkyl and Polyfluoroalkyl Chemicals Consumer Protection Act is now in effect. The law bars the sale or distribution in Colorado of any product containing “intentionally added PFAS,” including carpets or rugs, fabric treatments, food packaging, “juvenile products,” and certain oil and gas products. Perfluoroalkyl And Polyfluoroalkyl Chemicals | Colorado General Assembly. Colorado also now requires manufacturers of cookware to identify PFAS on the product label and bars statements that cookware is PFAS-free if the cookware contains intentionally added PFAS. Following a provision already in effect in California, Colorado also requires manufacturers of cookware to maintain an internet address that contains further information on PFAS.
Maryland’s prohibitions on intentionally added PFAS in rugs or carpets, firefighting foam, and food packaging became effective on January 1, 2024. Legislation – SB0273 (maryland.gov). The food packaging law is aimed at food packaging designed for direct contact with food.
Washington state has a number of new draft PFAS rules under consideration, including restrictions on PFAS in apparel, cleaning products and automotive washes, and a number of new reporting requirements. Draft Regulatory Determinations Report to the Legislature: Safer Products for Washington Cycle 1.5 Implementation Phase 3. Starting in May 2024, “manufacturers, distributors, and retailers may not manufacture, sell, or distribute bags, sleeves, bowls, flat serviceware, open-top containers, or closed containers” that contain intentionally added PFAS. Food packaging – Washington State Department of Ecology.
Rhode Island, Minnesota and Connecticut all have new prohibitions on intentionally added PFAS in food packaging. Minnesota’s law applies to a broad category of food packaging materials, including outside packaging, not just packaging in direct contact with food. Sec. 325F.075 MN Statutes. Connecticut’s food packaging law, effective as of December 31, 2023, is narrower and only applies to packaging that “is applied to or in direct with any food or beverages.” https://www.cga.ct.gov/2021/act/Pa/pdf/2021PA-00191-R00SB-00837-PA.PDF. Rhode Island’s date of compliance has been pushed from January 1, 2024, to July 31, 2024. S0724Aaa.pdf (rilegislature.gov).
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