PFAS Observer
The Environmental Protection Agency (EPA) is continuing its push to regulate per- and polyfluoroalkyl substances (PFAS). Just last week, the agency’s revised PFAS regulations under the Safe Drinking Water Act (SDWA) cleared a key regulatory hurdle and could be finalized in the very near future. Similarly, the agency continues to review stakeholder comments on its proposal to designate two PFAS compounds as hazardous substances, under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or “Superfund”), and a recent Congressional hearing on EPA’s proposal signals continued interest from Capitol Hill on PFAS issues. EPA also faces a looming deadline; the agency must finalize rules by mid-May or else risk the possibility of the 2024 election causing a change in administration and control of Congress, leading to repeal of rules under the Congressional Review Act (CRA).
This alert provides an update on both proposed regulations.
Final PFAS Drinking Water Regulations Imminent
Revisions to EPA’s National Primary Drinking Water Regulations related to PFAS are nearing the finish line. On March 27, 2024, the White House Office of Management and Budget (OMB) completed its review of EPA’s proposal to establish Maximum Contaminant Levels (MCLs) for six PFAS compounds:
- 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
- Perfluorobutane sulfonic acid (PFBS).
Clearing OMB review is typically the last step in the administrative process before EPA issues a final rule. It is not currently clear how closely the final rule will resemble the EPA’s proposed rule, which the agency released on March 14, 2023. The proposed rule met criticism from a multitude of stakeholders, including drinking water utilities and municipalities concerned about the cost of implementing treatment systems that would be required to comply with the proposed rule’s requirements. Pillsbury’s review of the proposed rule can be found here.
EPA Mulling PFAS CERCLA Liability Regulations, with Congress Looking to Weigh In
EPA is still reviewing comments to its proposed rule to designate two PFAS compounds, PFOA and PFOS, as “hazardous substances” under CERCLA. The agency issued the proposed rule on September 6, 2022, and closed the public comment period for the proposal on November 7, 2022. The more than year-long delay for a final rule is likely due to the sheer significance of a hazardous substance designation. The CERCLA statute’s onerous strict liability regime of joint and several liability over different classes of potentially responsible parties, including past and present owners and operators of contaminated properties, as well as transporters and arrangers of hazardous substances, means the liability exposure associated with the proposed designations could be enormous, depending on how EPA fashions the final rule.
EPA must also grapple with the reality that such a designation could subject public entities who use or have used PFAS, such as wastewater treatment plants, to joint and several liability under CERCLA. This reality has also caused members of Congress to weigh the possibility of passing legislation exempting “passive receivers” of PFAS from CERCLA liability. On March 20, 2024 the Senate Environment and Public Works Committee (EPW) held a hearing, discussing both EPA’s proposed hazardous substance designations and passive receiver exemptions. EPW Committee Chairman Tom Carper reiterated his commitment to crafting a bipartisan compromise to more broadly address the issue of federal PFAS regulation. Pillsbury discussed the hurdles to major PFAS legislation here.
EPA’s proposals and Congress’s continued interest in regulating PFAS reinforces the potential value to businesses that may have a connection to PFAS to be proactive in terms of evaluating their liability exposure, taking measures to mitigate or offset any liabilities, and implementing longer term strategies to phase out any PFAS used in manufacturing or processing operations. Pillsbury has seasoned attorneys who can assist with all such tasks, as well as the evolving law regarding PFAS.
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