PFAS: February 2024 Update and Preview

Regulatory activity and litigation concerning per- and polyfluoroalkyl substances (“PFAS”) continued to pick up steam in 2023, and 2024 promises to continue this trend and present companies with new PFAS-related challenges.

TSCA PFAS Reporting Rule

On October 11, 2023, the U.S. Environmental Protection Agency (“EPA”) published a final rule under the Toxic Substances Control Act (“TSCA”) requiring manufacturers (including importers) to submit a one-time report of their use of PFAS  from 2011 through 2022. PFAS manufacturers (as defined under the rule) have 12 months from the effective date of the rule (November 13, 2023) to collect the necessary information (i.e., November 13, 2024). This is then followed by a six-month reporting period (i.e., reports must be submitted to EPA by May 13, 2025). Additionally, “small manufacturers” that are solely reporting data on imported PFAS contained in manufactured articles have six months beyond that to report. Simply receiving PFAS from domestic suppliers or other domestic sources is not, in itself, considered “manufacturing PFAS for commercial purposes” for the purposes of the rule.

The rule includes a structural definition of PFAS and applies to any chemical substance that contains at least one of the following substructures:

• R-(CF2)-CF(R’)R’’, where both the CF2 and CF moieties are saturated carbons;
• R-CF2OCF2-R’, where R and R’ can either be F, O, or saturated carbons; or
• CF3C(CF3)R’R’’, where R’ and R” can either be F or saturated carbons.

With respect to the applicable standard of inquiry, the rule requires reporting of information “known to or reasonably ascertainable by” the reporting entity, and a covered entity is required to conduct a “reasonable inquiry” within the full scope of the organization (not just the information known to managerial or supervisory employees), as well as inquiries outside the organization to fill in knowledge gaps (e.g., customer surveys). If the submitter does not have actual data (e.g., measurements or monitoring data) to report, EPA instructs that the manufacturer (including importer) “should consider whether ‘reasonable estimates’ of such information are ascertainable.”

EPA has published lengthy reporting instructions as well as a Small Entity Compliance Guidance, but compliance with the TSCA PFAS reporting rule will be a challenge for many manufacturers, particularly those who already experience difficulties obtaining chemical-specific information from their suppliers.

Toxic Chemical Release Reporting

On October 31, 2023, EPA published a final rule under Section 313 of the Emergency Planning and Community Right to Know Act (“EPCRA”) that adds all PFAS included on the Toxic Chemical Release Inventory (“TRI”) to the list of Chemicals of Special Concern as part of the Toxic Chemical release reporting requirements under EPCRA. Under the Toxic Chemical release reporting regulations, 40 CFR Part 372, Chemicals of Special Concern are excluded from certain reporting exemptions, including a de minimis exemption, and cannot be reported using the alternative threshold certification reporting form or reported either as an estimate of by a range.  The rule is effective as of November 30, 2023 and applies as of January 1, 2024 for reporting year 2024 (reports due July 1, 2025).

In addition to this rule, on January 9, 2024, EPA added seven additional PFAS in accordance with the National Defense Authorization Act (NDAA). The seven PFAS added in addition to those PFAS already on the list bring the total number of PFAS subject to TRI reporting to 196.  The list of PFAS subject to TRI reporting will continue to be revised as new PFAS are added as a result of meeting the requirements of the NDAA.

Designation as Hazardous Constituents or Hazardous Waste

On February 1, 2024, EPA proposed two more PFAS-related rules under the Resource Conservation and Recovery Act (“RCRA”): one rule which would designate certain PFAS (perfluorooctanoic acid (“PFOA”), perfluorooctanesulofonic acid (“PFOS”), hexafluoropropylene oxide (“HFPO”) dimer acid and its ammonium salt (more commonly known as “GenX”), perfluorononanoic acid (“PFNA”), perflurorohexanesulfonic acid (“PFHxS”), perflourodecanoic acid (“PFDA”), perfluorohexanoic acid (“PFHxA”), perfluorobutanoic acid (“PFBA”), and perfluorobutane sulfonic acid or “PFBS”) as “hazardous constituents” under RCRA, and another rule which would clarify that emerging contaminants like the nine PFAS that are the subject of the first rule can be addressed and remediated through RCRA’s corrective action process.

EPA’s first proposed rulemaking proposes to designate these chemicals as hazardous constituents under Appendix VIII to the hazardous waste regulations at 40 CFR Part 261. This designation would, according to EPA, ensure that these PFAS are subject to corrective action requirements and would be a necessary building block for future work to regulate these PFAS chemicals as a listed hazardous waste. EPA’s other rulemaking proposes regulatory language intended to clarify that the RCRA Corrective Action Program has the authority to require investigation and cleanup for wastes that meet the statutory definition of hazardous waste. According to EPA, this modification would clarify that emerging contaminants, such as PFAS, can be cleaned up through the RCRA corrective action process. Comments on the hazardous constituent rule will be due (at least initially) 60 days after it is published in the Federal Register, and comments on the corrective action rule will be due (at least initially) 30 days after they are published in the Federal Register.

In addition to EPA’s proposed RCRA rules, as discussed in our prior update, on August 26, 2022, EPA announced a long-anticipated proposed rule which would designate PFOA and PFOS, including their structural isomers, as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). EPA’s second annual progress report indicates that it plans to issue a final rule  “in early 2024” This delay in finalizing may be related to EPA’s April 13, 2023 advance notice of proposed rulemaking (“ANPR”), which was also discussed in a prior update, in which EPA asked for input regarding the proposed designation of seven additional PFAS compounds, precursors to those compounds and PFOA and PFOS, and most notably groups of PFAS that share similar characteristics.

Regulation of PFAS in Biosolids

PFAS often are found in biosolids (sewage sludge) that are beneficially used through land application to agricultural land and reclamation sites (e.g., mining sites). The presence of PFAS in biosolids currently is regulated by a patchwork of state laws and regulations (or not regulated at all) pending the development of federal requirements. For example, in April 2022, Maine became the first and only state to enact legislation that bans land application of biosolids containing PFAS. Because Maine lacks sufficient landfill capacity to handle the amount of sewage sludge that needs to be disposed, waste disposal companies in the state have shipped tons of sludge to Canada.

By contrast, Michigan’s Department of Environment, Great Lakes, and Energy (“EGLE”) implements an interim strategy to guide wastewater treatment plants and landowners/farmers who make decisions on land applying biosolids with detectable concentrations of PFAS.  Under Michigan’s interim strategy, which only applies to PFOA and PFOS in biosolids, biosolids with a PFOS or PFOA concentration of 100 micrograms per liter (“µg/kg”) or higher are deemed industrially impacted and cannot be land applied, and the wastewater treatment plant is subject to additional requirements such as implementing a source reduction plan including an investigation of potential sources of PFOS and/or PFOA to the sanitary wastewater and resulting biosolids.  For biosolids with a PFOS or PFOA concentration at or above 20 μg/kg, but below 100 μg/kg, land application is limited to 1.5 dry tons per acre (dt/acre) or the facility proposing land application can submit an alternative risk mitigation strategy for EGLE approval a minimum 14 days prior to land application (and other requirements such as a source reduction plan and quarterly sampling apply).  Biosolids with PFOS and PFOA concentrations below 20 µg/kg may be land applied with no additional requirements after submittal of the results to EGLE and communication of the results to the landowner/farmer.

EPA’s biosolids rule for PFAS will be a risk-based approach similar to Michigan’s interim strategy. EPA currently is conducting a biosolids risk assessment for two PFAS compounds, PFOA and PFOS, in biosolids. EPA intends to complete the risk assessment by December 2024.

Effluent Guidelines Program Plan 15

On January 31, 2023, EPA published notice of the availability of its Effluent Guidelines Program Plan 15. Effluent limitations guidelines and pretreatment standards (“ELGs”) are technology-based standards to address industrial wastewater discharges, and EPA has promulgated numerous ELGs for specific industrial categories. Plan 15 discusses a range of topics, including EPA’s review of various ELGs as well as EPA’s update on various rulemaking actions. Specifically with respect to PFAS, Plan 15 includes an announcement that EPA completed a detailed study of the ELGs for landfills, and that EPA proposes to revise these ELGs to address PFAS discharges from landfills.

Additionally, Plan 15 announces that EPA intends to initiate or further expand PFAS-related studies concerning other industrial categories, including textile mills, publicly owned treatment works (POTW) influent, concentrated animal feeding operations (CAFO), pulp, paper, and paperboard, and airports. EPA also announced that it was not pursuing further regulatory action for the electrical and electronic components category based on the PFAS-related review it had conducted thus far. Finally, Plan 15 includes updates related to PFAS-related proposed rulemakings that EPA intends to publish in spring of 2024 related to the metals finishing, electroplating, organic chemicals, plastics, and synthetic fibers categories.

Unregulated Contaminant Monitoring Rule 5 (UCMR 5) Update

On December 27, 2021, EPA published a final rule under the Safe Drinking Waste Act requiring certain public water supply systems (“PWS”) to collect data on 29 PFAS for the three-year period 2023-2025.  In October 2023, EPA released the second set of data collected under this rule. The data collected to date indicates that three PFAS (PFOA, PFOS and HFPO-DA- Genx) with EPA-established health advisory levels were detected in just under 14% of the PWSs with results to date. One PFAS, PFBS, was not measured above its health advisory level. Health advisories have not been established for the other 25 PFAS that are part of this rule. Fourteen (14) of these 25 were measured above the minimum reporting level by at least one PWS, and the other 11 PFAS were not detected above the de minimis reporting level. It should be noted that the six PFAS with proposed MCLs were included in the UCMR 5 monitoring rule.

State PFAS Product Bans

States are continuing to pass legislation to ban and/or require consumer notices for PFAS-containing products. Those laws to date have targeted carpets, rugs, fabric treatments, cookware, cosmetics, food packaging, children’s products, furniture, textiles and apparel. A detailed breakdown of the various state laws is beyond the scope of this article. However, these state laws can vary in several important respects such as which PFAS chemicals are covered, whether the law is limited to “intentionally introduced” PFAS, and, in the case of food packaging, whether the packaging is designed for direct contact with food.

For example, Connecticut’s new food packaging law defines PFAS very broadly (“all members of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom”) and bans the use of any food package to which any amount of PFAS has been intentionally introduced during manufacturing or distribution, but the ban only applies to packaging that “is applied to or in direct with any food or beverages.” Minnesota’s statute similarly employs a broad definition of PFAS that are “intentionally added,” but the prohibition is not limited to packaging in direct contact with food but instead applies to a broad category of food packaging materials, including outside packaging. Companies must continue to monitor these developments on a state-by-state level.

Aqueous Film-Forming Foam (AFFF) MDL and Other State Litigation

Currently, there are several thousand cases pending in the multidistrict class action litigation (MDL) in the South Carolina Federal District Court related to aqueous film forming foam (“AFFF”), a now infamous source of PFAS contamination. Two settlements garnered much of the attention in 2023. Defendants 3M and Dupont reached tentative settlements, pending court approval, under which 3M would pay $10.3 billion and Dupont (and its spin offs-Chemours Company and Corteva, Inc.) would pay $1.185 billion. On February 8, 2024, the Court granted class counsel’s motion to approve the DuPont class settlement and class certification.  The settlement monies would be available to cover the costs of testing and remediation associated with the presence of PFAS in drinking water sources but would not resolve any personal injury claims and state claims for natural resource damages (and the judge overseeing the MDL is currently considering the selection of bellwether cases for certain personal injury claims to go forward with discovery). To be eligible to recover under these settlement agreements, the public water supply system (PWS) must have a PFAS detection in its water system resulting from past or future PFAS testing.

While the MDL in South Carolina is limited to claims for PFAS contamination caused by the manufacture of AFFF, some state Attorneys General have also filed separate lawsuits against manufacturers of other PFAS chemicals, including those used in consumer products. It has been reported that the Attorneys General filing these separate actions are likely trying to avoid being lumped into the MDL. An organization called Safer States maintains a website that tracks the filing of these actions. One such action by Ohio against DuPont and its spin-off companies, Chemours Co. and Corteva Inc., already has resulted in a $110 million settlement.

Michigan Lawsuits

A pair of Michigan lawsuits concerning PFAS issues are also garnering national attention. First, 3M Company filed suit against EGLE challenging EGLE’s designation of seven different types of PFAS (PFOA, PFOS, PFNA, PFHxS, HFPO, PFBS, and PFHxA) as “hazardous substances” under Michigan’s environmental statutes. And on November 15, 2022, the Michigan Court of Claims found that EGLE had violated the Michigan Administrative Procedures Act (“APA”) in promulgating drinking water standards (which serve as groundwater cleanup standards) for PFOA and PFOS because EGLE failed to adequately address cleanup and compliance costs on businesses. EGLE subsequently filed an appeal with the Michigan Court of Appeals, but on August 22, 2023, the Court of Appeals upheld the Court of Claims’ ruling. EGLE has now appealed to the Michigan Supreme Court, its final chance to preserve the standards before they are invalidated, which would force EGLE to re-promulgate those standards and adequately address cleanup and compliance costs on businesses when doing so.

Additionally, on September 7, 2023, EGLE filed suit against the Gerald R. Ford International Airport Authority (the “Grand Rapids Authority”) seeking injunctive relief, natural resource damages, and civil penalties related to PFAS contamination stemming from the Grand Rapids Authority’s historic use of AFFF during training exercises, equipment testing and emergency response. This is the first state enforcement case concerning PFAS contamination coming from an airport’s use of AFFF, and much of the litigation thus far has centered around whether the case should properly be heard in federal or state court. The Grand Rapids Authority argues that federal court is the proper venue because the Federal Aviation Administration (“FAA”) dictated the airport’s use of AFFF; however, the U.S. District Court for the Western District of Michigan twice rejected these arguments and remanded the case back to state court on January 18, 2024, for further proceedings after finding that while the FAA regulated the airport, the Grand Rapids Authority was not “acting under” the FAA. The Grand Rapids Authority has now appealed that order to the U.S. Court of Appeals for the Sixth Circuit.

Other Notes

• As discussed in a prior update, on March 29, 2023, EPA published a proposed rule that would establish enforceable drinking water standards for six PFAS (PFOA, PFOS, PFNA, PFHxS, PFBS and GENx). The comment period closed in May of 2023, and EPA’s Regulatory Agenda from the Fall of 2023 indicates that a final rule is due out later in 2024.
• As discussed in a prior update, EPA has issued guidance to states detailing how states can utilize their authorized National Pollutant Discharge Elimination System (“NPDES”) programs to monitor for discharges of PFAS and restrict the discharge of PFAS at their source. Certain states like Michigan, North Carolina, and California have already begun to include certain PFAS-related requirements into their NPDES permitting programs. Other states will likely follow suit.