Federal and State PFAS Regulation Continues to Expand

On April 19, 2024, the US Environmental Protection Agency (“EPA”) announced its intent to publish a final rule designating two perfluoroalkyl substances (“PFAS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The announcement follows EPA’s publication of final drinking water standards for certain PFAS under the Clean Water Act (“CWA”) earlier this month, demonstrating the agency’s continued focus on PFAS. Many states are also moving toward sweeping PFAS restrictions, including California, where lawmakers have proposed a bill that would ban PFAS in most products by 2030.

PFAS CERCLA Rule and Enforcement Policy

EPA’s newest PFAS rule will designate two of the most widely used PFAS, perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”), as hazardous substances under CERCLA. The rule will require that releases of PFOA and PFOS that meet or exceed certain reportable quantities be reported to the National Response Center and the appropriate state or tribal emergency response authorities, and that reasonable notice be provided to any potential injured parties by publication in local newspapers. Federal entities that transfer or sell property will be required to provide notice about any storage, release or disposal of PFOA or PFOS on the property. The US  Department of Transportation will also be required to list PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act. These new requirements will take effect 60 days after the final rule is published in the Federal Register.

Concurrently with its announcement of the final CERCLA rule, EPA also published a PFAS Enforcement Discretion and Settlement Policy Under CERCLA (the “PFAS Enforcement Policy”), which describes how EPA will approach holding responsible entities that significantly contributed to releases of PFAS contamination into the environment. The PFAS Enforcement Policy states that the “designation of PFOA and PFOS as hazardous substances should not disrupt CERCLA’s liability framework,” and that EPA will continue to follow its existing enforcement discretion policies. EPA “will focus on holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or use PFAS in the manufacturing process, and other industrial parties.” The PFAS Enforcement Policy also discusses environmental justice considerations, noting that EPA remains committed to “identifying and protecting overburdened communities” and will “conduct investigations and cleanup to protect communities from high-risk, high-concentration PFOA and PFOS exposure.”

The inclusion of PFOA and PFOS as hazardous substances under CERCLA will allow EPA (and other federal agencies with CERCLA authority) to require investigation and remediation of such contamination at sites that may not have previously garnered attention under CERCLA, and to seek recovery of response costs from potentially responsible parties for the same. EPA could also begin investigating PFAS at existing CERCLA sites, including as part of the 5-year review process for sites where a remedial action has already been implemented. This could open the door to potential new CERCLA liability if incremental response activity is required to address PFAS contamination. 

PFAS Drinking Water Standards

On April 10, 2024, EPA published a final National Primary Drinking Water Regulation (“NPDWR”) establishing drinking water standards under the CWA for six PFAS, including PFOA and PFOS. The NPDWR sets enforceable Maximum Contaminant Levels (“MCLs”) for these substances in public drinking water. The MCLs for PFOA and PFOS are both 4.0 parts per trillion. Regulated public water systems will have three years to complete initial monitoring of the covered PFAS, and five years to address any exceedances of the new MCLs. Water systems must also notify the public if the new MCLs are exceeded.

Concurrently with the publication of the NPDWR, EPA also announced that nearly $1 billion will be made available to states to fund initial PFAS monitoring and treatment through EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program.

The new PFAS MCLs will have implications for private parties in addition to public water systems. EPA and other state and federal agencies often use MCLs to set remediation cleanup targets for groundwater and surface water, including at CERCLA sites. Achieving the stringent PFAS MCLs will likely pose challenges for responsible parties, especially in relation to PFAS in groundwater, which is often difficult and expensive to treat. 

California’s Proposed PFAS Legislation

On January 4, 2024, California lawmakers introduced the California Ending Forever Chemicals Act (S.B. 903), which would prohibit “a person from distributing, selling, or offering for sale a product that contains intentionally added PFAS” in California beginning on January 1, 2030. This proposed blanket ban on PFAS would be subject to certain exceptions, including for products for which the Department of Toxic Substances Control (“DTSC”) determines that the added PFAS is unavoidable. Unlike EPA’s above rules, S.B. 903 would cover all types of PFAS, encompassing nearly 15,000 different chemicals according to EPA’s CompTox database. The bill would also require that DTSC phase out PFAS in certain products before 2030 if it finds that there are reasonably available alternatives to PFAS or that PFAS is not necessary for the product to function. 

S.B. 903 is currently under consideration in the California State Senate. If enacted, the bill would build on California’s existing ban on PFAS in food packaging, as well as upcoming bans on PFAS in textiles and cosmetic products under the Safe Clothes and Textiles Act (A.B. 1817) and the California PFAS-Free Cosmetics Act (A.B. 2771), which both take effect on January 1, 2025. Maine and Minnesota have also enacted sweeping bans on PFAS in products. More states will likely follow in the coming years. Companies that manufacture products using PFAS should start exploring PFAS alternatives well in advance of the upcoming deadlines and should plan for potentially significant costs in switching to alternative substances.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. John Rousakis, an O'Melveny partner licensed to practice law in New York; John D. Renneisen, an O'Melveny senior counsel licensed to practice law in the District of Columbia; and Chris Bowman, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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