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With appropriations settled until December 20, Congress now has one other piece of “must-pass” legislation to address: the National Defense Authorization Act (NDAA). The NDAA authorizes the activities of the Department of Defense (DoD) for the following fiscal year and the legislation has passed on a bipartisan basis for over 60 consecutive years. Included in the House and Senate NDAAs are different provisions concerning PFAS that will need to be reconciled prior to passage.

In Bipartisan Legislation Presents Opportunity for Passing PFAS Laws, colleagues Reza Zarghamee, Aimee P. Ghosh and Amaris Trozzo provide an overview of the PFAS provisions that may or may not be included in the final bill.

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A lawsuit filed earlier this year highlights potential PFAS liability exposure for fertilizer manufacturers, especially those that produce biosolid-based products. Five Texas farmers have sued Synagro Technologies, alleging that high levels of PFAS in the company’s biosolid-based fertilizers contaminated their water, soil and livestock. The lawsuit alleges that Synagro knew about the presence of PFAS in its fertilizers and failed to warn product users about the adverse health effects associated with exposure to PFAS.

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On October 1, 2024, the U.S. Environmental Protection Agency (EPA) proposed to add 16 individual per- and polyfluoroalkyl substances (PFAS) as well as 15 PFAS categories, representing over 100 PFAS to the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). This proposal would be a significant expansion to the database. EPA is also proposing to set a reporting threshold of 100 pounds for manufacture, processing and other uses, consistent with previously set PFAS TRI reporting requirements. As proposed, all the PFAS in one category would count toward the 100-pound threshold of a given category. Last, the proposal aims to clarify how PFAS are automatically added to the TRI under the National Defense Authorization Act for Fiscal Year 2020 (NDAA) by clarifying how EPA finalizes toxicity values.

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On September 30, 2024, the U.S. Environmental Protection Agency (EPA) issued a notice seeking comment on the manufacture of certain per- and polyfluoroalkyl substances (PFAS) during the fluorination of high-density polyethylene (HDPE), which is used to produce plastic containers used for various household consumer, commercial and industrial products. The notice marks the latest step in EPA’s attempt to regulate plastic fluorination and potential concurrent PFAS contamination under Section 6 of the Toxic Substances Control Act (TSCA).

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On September 5, the U.S. Environmental Protection Agency (EPA) cut industry a significant break by postponing the reporting period for the one-time reporting rule for per- and polyfluoroalkyl substances (PFAS) under Section 8(a)(7) of the Toxic Substances Control Act (TSCA) by eight months. Originally, the TSCA Rule established a reporting period that would begin on November 12, 2024, and, for most companies,1 end on May 8, 2025. These deadlines have now been pushed out to July 11, 2025, and January 11, 2026, respectively.

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A recent Supreme Court ruling could further jeopardize EPA’s PFAS hazardous substance designation, as the agency is attempting to advance a novel use of delegated legislative authority to further regulate PFAS chemicals.

On June 28, the Supreme Court issued its opinion in Loper Bright Enterprises v. Raimondo, 603 U.S. ____ (2024), overturning the longstanding doctrine known as “Chevron deference.” Loper Bright substantially expands the ability of federal courts to review and reject federal agencies’ interpretation of statutes.

Not two months before the Court issued its decision in Loper Bright, the U.S. Environmental Protection Agency (EPA) published its long-awaited rule designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) on May 8, 2024. The Final Rule has significant immediate impacts, which Pillsbury has described in greater depth here, but is also novel in a legal sense: The Final Rule marks the first time that the agency has designated a hazardous substance using its authority under Section 102(a) of CERCLA.

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The ongoing multidistrict litigation (MDL) concerning PFAS-containing firefighter foams continues to be an actively litigated matter as well as an area of public concern. PFAS, or per- and polyfluoroalkyl substances, have garnered significant attention due to their ubiquitous nature and potential health risks. Firefighter foams have been alleged to contaminate water sources with these harmful chemicals that have raised complex issues of liability, regulation and scientific evidence in response to a rise in litigation for damages.

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On April 16, 2024, Maine enacted amendments revising the state perfluoroalkyl and polyfluoroalkyl substances (PFAS) law. This law generally prohibits the sale of products containing intentionally added PFAS and includes notification requirements for products with intentionally added PFAS that would continue to be sold. The recent amendments modified the effective dates of certain sales bans, revised the reporting requirements for PFAS product manufacturers, delayed the general ban on the sale of PFAS products from 2030 to 2032, and listed the categories of products exempt from the PFAS ban entirely. While this law remains one of the strictest PFAS laws nationally, the new amendments ease some of the burdens on manufacturers presented in the original bill.

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The Toxic Substances Control Act (TSCA) has been regulating new and existing chemicals for almost 50 years. Under the TSCA, the EPA was given broad authority to track the thousands of existing commercial chemicals and regulate any new chemicals before they enter the market.

The TSCA requires manufacturers that intend to use a chemical that is designated as a “significant new use” to notify the EPA at least 90 days before they manufacture, import or process the chemical for that use, i.e., the “significant new use rule” (SNUR). This pre-manufacture notice requirement gives the EPA the opportunity to evaluate the potential use and, if necessary, to place restrictions on the chemical or prohibit its use to manage any risks before they can occur.

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On April 19, 2024, the Environmental Protection Agency (EPA) finalized its long-awaited rule designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). The final rule will take effect 60 days after EPA publishes it in the Federal Register.

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