With 2024 winding down and a change of presidential administration imminent, it is worthwhile to consider the state of EPA’s efforts to regulate per- and polyfluoroalkyl substances (PFAS). In this connection, EPA recently released its third annual Progress Report on the Agency’s 2021 PFAS Strategic Roadmap. This most recent report, which comes in the waning months of the Biden administration, highlights key EPA accomplishments in addressing PFAS over the past year and identifies areas for continued action in the months and years to come. However, it remains to be seen whether the second Trump administration will follow through on these action items.
Principal Achievements Highlighted in EPA’s Third Annual Progress Report
As discussed in earlier Pillsbury alerts, EPA’s 2024 efforts included several significant regulatory actions to regulate PFAS under different statutory authorities. In April, EPA concluded two long-anticipated rulemakings, by: (1) establishing legally enforceable drinking water standards in the form of maximum contaminant levels (MCLs) under the Safe Drinking Water Act for several PFAS individually (perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA) hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX), perfluorohexane sulfonic acid (PFHxS)) and in mixtures (two or more of PFHxS, GenX, PFNA and perfluorobutane sulfonate (PFBS)), and (2) designating PFOA and PFOS as “hazardous substances” under CERCLA. These rulemakings are notable both individually and when considered in tandem. MCLs serve as de facto cleanup standards for groundwater in many jurisdictions, and the values assigned to the various PFAS (including concentrations of 4 ppt for PFOA and PFOS) are orders of magnitude lower than those promulgated for other industrial chemicals. The implications are magnified when one considers the strict, joint and several liability scheme of CERCLA, as well as the potential for the CERCLA hazardous substances listings to result in the reopening of Superfund matters that have been resolved.
Whereas the MCL and CERCLA rulemaking attests to EPA efforts to address PFAS released to the environment, the agency also used its authority under TSCA to restrict the introduction into commerce of PFAS chemicals. In January 2024, EPA finalized a Significant New Use Rule (SNUR) to prevent resumed manufacture or processing of hundreds of inactive PFAS without a new EPA safety review.1 The SNUR applies to PFAS that are listed as “Inactive” on the TSCA Inventory and are not already subject to a SNUR. Anyone wishing to manufacture or process any of the 329 inactive PFAS is now required to seek EPA review of the activity by submitting a Significant New Use Notice (SNUN). EPA also sought to leverage federal spending and procurement power to reduce PFAS exposure. Consistent with Executive Order 14057 on federal sustainability, EPA updated its recommendations for federal purchasing by identifying which ecolabels and sustainability standards restrict or eliminate PFAS from their products. The agency also removed PFAS from the Safer Choice program’s Safer Chemical Ingredients List and updated its safer packaging criteria, ensuring primary packaging does not include any intentionally added PFAS or other chemicals of concern.2 EPA has also partnered with the General Services Administration (GSA) to ensure that procurement tools utilized across the federal government highlight products that do not contain PFAS and, through an update to GSA’s National Custodian specification, ensure that all cleaning products used to clean federal buildings do not contain PFAS by updating GSA’s National Custodian specification.
In addition to its regulatory efforts and interagency cooperation with the GSA, EPA continued to focus on collecting data to improve its understanding of PFAS and refining analytical tools and methods for detecting, testing and remediating PFAS in the environment. This includes EPA’s ongoing collection of information under its national drinking water monitoring program and implementation of EPA’s National PFAS Testing Strategy through test orders requiring testing of PFAS substances under Section 4 of TSCA. Meanwhile, EPA stands to obtain additional information regarding the commercial distribution of PFAS and PFAS-containing products in U.S. commerce once companies submit the requisite data under the Agency’s one-time PFAS Reporting Rule promulgated under the authority of TSCA Section 8(a)(7). This rule requires any entity that manufactured PFAS and or imported either PFAS or PFAS-containing articles in any year from 2011 through 2022 to report information related to chemical identity, uses, volumes made and processed, byproducts, environmental and health effects, worker exposure, and disposal on the EPA’s Central Data Exchange database. Citing budget constraints, EPA recently postponed the reporting deadline by eight months to January 2026.
Recommended Objectives Highlighted in the Third Annual Progress Report
The Annual Report highlights several areas for future progress on PFAS, including, among others, accounting for the full lifecycle of PFAS, greater focus on preventing PFAS from entering the environment in the first place, and an emphasis enforcing new PFAS regulation (especially PFAS remediation efforts).
The Report places a specific emphasis on tackling PFAS in biosolids, which the agency describes as a particularly challenging multi-media problem that involves complex interrelationships between wastewater treatment facilities, landfills, industrial discharges, farmers and the public. EPA expects to finalize its biosolids risk assessment for PFOA and PFOS in the coming months, consistent with its commitment in the 2021 Strategic Roadmap. The risk assessment will serve as the basis for determining whether regulation of PFOA and PFOS in biosolids is appropriate.
The Annual Report further touches upon EPA’s plan to release the first-ever technology-based Effluent Limitations Guidelines (ELGs) for PFAS manufacturers in the coming months, followed by similar ELGs for metal finishers and landfills. Together, these Guidelines would address the most significant categories of industrial PFAS dischargers in an attempt “to get ahead of the problem.”
The Annual Report also emphasizes the importance of expanding upon and enforcing EPA’s new PFAS regulations, with special emphasis on utilizing the agency’s newly established CERCLA authority—thanks to the hazardous substances designations of PFOA and PFOS—to recover remediation costs and hold accountable entities who significantly contributed to the release of these PFAS into the environment. EPA plans to continue to implement its “Addressing Exposure to PFAS National Enforcement and Compliance Initiative,” which focuses on “major manufacturers and users of manufactured PFAS, federal facilities that are significant sources of PFAS, and other industrial parties.” Importantly, in emphasizing its efforts to enforce against “significant contributors” of PFAS contamination, the agency notes its enforcement discretion policy, which was issued on the same day EPA finalized its CERCLA designation. Furthermore, EPA has signaled its intent to designate additional PFAS as hazardous substances under CERCLA.
Where Does the Road Go from Here?
Despite the ambitious forward-looking statements in the Annual Report and other public documents, it remains to be seen whether the Agency will be able to act on them given the outcome of the 2024 presidential election. The incoming Trump administration has signaled a robust deregulatory agenda and threatened to significantly reduce funding for EPA. Under the much talked about Project 2025, a day one EPA priority is identifying existing rules to be stayed and reproposed. It specifically calls out EPA’s designation of PFAS chemicals under CERCLA for reconsideration and suggests that the agency “revise groundwater cleanup regulations and policies to reflect the challenges of omnipresent contaminants like PFAS.” Project 2025 also seeks to revise EPA’s science advisory boards and drastically reducing the role of EPA’s Office of Research and Development, both of which could significantly impact the agency’s ability to regulate PFAS.
Yet, despite these headwinds, there are signs that efforts to regulate PFAS are likely to persist. First, while PFAS is mentioned in Project 2025, it is not heavily featured in the section on EPA. Second, EPA under the prior Trump Administration issued its own comprehensive PFAS Action Plan in 2019, which identified the following “key EPA actions addressing PFAS-related challenges”: the use of enforcement tools to address PFAS exposure in the environment and assisting of states in enforcement activities, the use of legal tools such as those in TSCA to prevent future PFAS contamination, and the addressing of PFAS in drinking water using regulatory and other tools. Moreover, Congressman Lee Zeldin, who President-elect Trump will nominate to lead EPA, voted in favor of several PFAS regulation bills while in Congress, including a 2021 bill that would have placed some PFAS under a National Drinking Water Standard.
But even if the second Trump administration seeks to roll back federal PFAS regulatory efforts, many states have already taken their own steps to regulate PFAS. During the 2024 legislative sessions, at least seven states (including California, Colorado, Connecticut, Maine, Maryland, New Hampshire, Rhode Island and Vermont) enacted bills that prohibited the manufacture, sale or distribution of various products containing PFAS. These efforts could expand in the absence of further federal regulation, creating a patchwork of regulatory requirements for all manner of regulated entities. And beyond state-led regulatory efforts, environmental organizations have already indicated they intend to push back against any efforts to weaken federal PFAS regulation, with Earthjustice recently announcing its plan to fight any rollbacks of protection against PFAS.
A pullback on federal regulation of PFAS is unlikely to have a significant impact on private party litigation. If anything, the absence of EPA regulation in certain areas could lead to an increase in tort cases to address PFAS contamination, like the recent product liability case brought against a manufacturer of biosolid-based fertilizer that Pillsbury highlighted here.
Pillsbury will continue to monitor the Trump transition process and related developments in PFAS regulation. With a team of attorneys that has extensive experience assisting clients on PFAS-related matters, including former EPA attorneys that have advised the Agency through several presidential transitions, Pillsbury is well positioned to help clients navigate these uncertain times.
1 Per- and Poly-Fluoroalkyl Chemical Substances Designated as Inactive on the TSCA Inventory; Significant New Use Rule, 89 Fed. Reg. 1822 (Jan. 11, 2024).
2 U.S. EPA, Safer Choice and Design for the Environment (Dfe) Standard (August 2024 Revisions).
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