June 5, 2024
The U.S. Environmental Protection Agency (EPA) has recently stepped up its oversight of per- and polyfluoroalkyl substances (PFAS) in a move to protect Americans from the harmful effects that can result from exposure. PFAS, also known as “forever chemicals” due to their ability to persist in the environment for centuries, have generally been regulated at the state level, creating a patchwork of rules that can be difficult for companies to follow.
However, in the past few years, the EPA, along with other agencies like the Food & Drug Administration (FDA), have made strides in introducing federal regulations aimed at limiting pollution from PFAS. In particular, the EPA has been making progress towards its PFAS Strategic Roadmap, which was released in 2021 and outlines the agency’s approach to addressing PFAS. In April 2024 alone, the EPA published two final rules that will reduce the presence of PFAS in the environment but will also have sweeping impacts for companies in a variety of industries.
Near-zero limit on PFAS in drinking water
On April 10, 2024, the EPA published its final rule, the National Primary Drinking Water Regulation (NPDWR), which establishes drinking water standards that set limits for five individual PFAS and four PFAS as a mixture. This is the United States’ first drinking water standard for PFAS and also marks the first time the EPA has established drinking water standards for a new contaminant since 1996.
Under the regulation, the maximum contamination level allowed for the individual PFAS ranges from four parts per trillion (ppt) to ten ppt. Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are the two PFAS that must be reduced to 4 ppt in drinking water, a limit that the EPA has said is the lowest level that can be feasibly measured.
While environmental groups have celebrated the move, the water industry has raised concerns about how this rule will impact them. Multiple trade groups noted that costs for reducing PFAS in drinking water will largely fall on water utilities even though they do not create or produce PFAS. The Biden administration has set aside billions of dollars to fund efforts to reduce PFAS in water systems, but it remains to be seen who will ultimately foot the bill.
EPA designates two types of PFAS as hazardous substances
In another move to address PFAS contamination, on April 19, 2024, the EPA issued a final rule designating two types of PFAS, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund Act. The agency notes that this final rule will enable “investigation and cleanup of these harmful chemicals and [ensure] that leaks, spills, and other releases are reported.”
This rule significantly expands potential liability for businesses, especially those who are deemed potentially responsible parties (PRPs), and the EPA acknowledges that there is potential for “some parties that do not bear primary responsibility for litigation may be sued and face uncertain litigation costs.” With the greater risk for liability and litigation, companies should work quickly to audit their operations for the presence of PFOS and PFOA to determine whether they may be subject to EPA oversight under the CERCLA.
Key takeaways
Both of the final rules discussed in this blog indicate that the EPA has a broad view of which parties are responsible for reducing PFAS contamination in the environment. This could mean more risk for manufacturers, retailers, and other businesses throughout the supply chain. As more regulations for PFAS are expected in the coming months, businesses should take steps now to examine their operations and how they can reduce or eliminate the use of PFAS.
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