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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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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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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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The Biden Administration is continuing its efforts to regulate per- and polyfluoroalkyl substances (PFAS). On April 15, 2024, the White House Office of Management and Budget (OMB) completed its review of an Environmental Protection Agency (EPA) proposal designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

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On April 10, 2024, the Environmental Protection Agency (EPA) finalized a National Primary Drinking Water Regulation under the Safe Drinking Water Act to establish Maximum Contaminant Levels (MCLs) for five per- and polyfluoroalkyl substances (PFAS):

  • Perfluorooctanoic acid (PFOA)
  • Perfluorooctane sulfonic acid (PFOS)
  • Perfluorononanoic acid (PFNA)
  • Hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX)
  • Perfluorohexane sulfonic acid (PFHxS)

Additionally, EPA required the use of the Hazard Index to establish site-specific limitations for PFAS mixtures of two or more of PFHxS, GenX, PFNA, and perfluorobutane sulfonate (PFBS).

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As regulation of the use of PFAS in consumer products continues to develop at a rapid pace in the United States, businesses that manufacture or sell products internationally should also keep their fingers on the pulse of foreign regulatory developments.

On April 4, members of the French Parliament unanimously approved a bill calling for the ban on the manufacture, import and sale of certain products containing per- and polyfluoroalkyl substances (PFAS), starting January 1, 2026. The bill applies to any cosmetic product, wax product (for skis), or clothing textile product, except for protective clothing for safety and civil security professionals. The ban will extend to all textiles starting on January 1, 2030. Kitchen utensils, which were originally included in the ban as proposed, were removed from the bill following pushback from the cookware industry, which has historically utilized perfluorooctanoic acid (PFOA) for nonstick cookware.

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