Summary of Latest Federal Action Regarding PFAS

If passed, the act will require the U.S. Environmental Protection Agency (U.S. EPA) to

1. designate, within one year, perfluorooctanoic acid (PFOA; CAS No. 335-67-1) and perfluorooctanesulfonic acid (PFOS; CAS No. 1763-23-1)—two of the most prevalent PFAS chemicals—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);
2. determine, within five years, whether the remaining (4700+) PFAS chemicals are hazardous substances under CERCLA;
3. promulgate a rule adding PFOA and PFOS to the list of hazardous air pollutants under the Clean Air Act;
4. promulgate drinking water standards for PFAS under the Safe Drinking Water Act (SDWA); and
5. promulgate a rule under the Clean Water Act establishing effluent limitations and pretreatment standards, among other requirements.

The PFAS Action Act includes a narrow exemption for owners and operators of airports using aqueous film-forming foam (AFFF), as long as they comply with regulations for safe handling.

Even if the act does not pass in the Senate, the Biden administration has been active in addressing issues relating to contamination from PFAS, and many expect that the U.S. EPA will take steps to develop additional regulations relating to PFAS in the absence of legislative action. To demonstrate such commitment, the U.S. EPA released its PFAS Strategic Roadmap on October 18, 2021, and published proposed rules throughout 2021, several of which have significant implications for industry.

Toxic Substances Control Act Reporting Requirements

In June 2021, the U.S. EPA published a proposed rule requiring certain manufacturers or importers of PFAS to report information regarding their uses of PFAS chemicals, including production volumes, disposal, exposures, and more. Notably, this proposed rule would apply retroactively, requiring reporting for any manufacturing or importing of PFAS dating back to January 2011. Practitioners should consider advising clients to maintain these types of records in the event that a final rule is published. (That said, at this time, it is unclear how businesses that have not already been monitoring for this data will be able to collect and report the required information given the passage of time and records-retention policies, nor is it clear how regulators would enforce this rule given the same.)

Toxics Release Inventory Program

The U.S. EPA’s PFAS Strategic Roadmap indicates the agency’s intent to propose a rulemaking in 2022 to categorize PFAS on the Toxics Release Inventory as “chemicals of special concern.”

PFOA and PFOS were both already added to the list of covered chemicals for reporting year 2020. However, there are notable exemptions for a “de minimis concentration” of PFAS or PFAS levels below certain thresholds, for which reporting is not required. These exemptions have been challenged in a suit against the U.S. EPA in the U.S. District Court for the District of Columbia. In June 2021, the U.S. EPA published a final rule listing three more PFAS chemicals as covered for reporting year 2021: perfluorooctyl iodide (CAS No. 507-63-1), potassium perfluorooctanoate (CAS No. 2395-00-8), and silver(I) perfluorooctanoate (CAS No. 335-93-3).

SDWA Contaminant Candidates and National Primary Drinking Water Regulations

In July 2021, the U.S. EPA published a draft of its Drinking Water Contaminant Candidate List, proposing to list all PFAS except PFOA and PFOS. In December 2021, the U.S. EPA published its final fifth Unregulated Contaminant Monitoring Rule (UCMR 5), requiring drinking water utilities to monitor for 29 PFAS chemicals—including PFOA and PFOS—from 2023 to 2025. Finally, the U.S. EPA is currently developing proposed National Primary Drinking Water Regulations for several PFAS—likely to be published in fall 2022, with a final rule to follow in 2023.

Resource Conservation and Recovery Act Hazardous Waste Designation

The U.S. EPA announced in its PFAS Strategic Roadmap that it will use the Resource Conservation and Recovery Act (RCRA) to regulate PFAS as hazardous waste. Accordingly, the agency will propose identifying several PFAS chemicals as hazardous constituents under the RCRA and will bring emerging contaminants, including PFAS, under its RCRA Corrective Action Program, requiring parties to investigate and clean up materials that meet the statutory definition of hazardous waste.

PFAS Litigation Trends

Recently, numerous cases have been filed on behalf of state and local governments, as well as public entities such as public water utilities, against manufacturers and distributors of PFAS chemicals and AFFF, seeking damages and costs to address PFAS contamination in groundwater and drinking water sources. Public plaintiffs and the claims for remediation, as opposed to personal injury, require a different strategy leading up to and during litigation.

Sarah Peterman Bell is a partner and Tori Timmons is an associate at Farella Braun + Martell LLP in San Francisco, California.

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