As per-and polyfluoroalkyl substances (PFAS) increasingly make their way into the headlines, their regulatory presence is growing as well. This group of man-made chemicals, commonly known as “forever chemicals,” have been historically used in myriad industries and are ubiquitously present in household items since the 1950s.
PFAS’ pervasive use has led to their ever-expanding presence in the air, soil, and groundwater. While their effects on human health continue to be ascertained from animal models, upcoming regulatory changes and litigation may help bring clarity to the PFAS landscape.
Below are several examples of proposed and approved PFAS regulations for 2023.
Improved PFAS Reporting
In December 2022, the Environmental Protection Agency (EPA) proposed a ruling that would improve the process for reporting PFAS to the Toxics Release Inventory (TRI). If enacted, these changes would eliminate an exemption that permits facilities to avoid PFAS reporting when chemicals are used in small concentrations, which is common in many PFAS-containing products.
This rule would ensure that facilities are required to disclose PFAS use or release to the TRI, regardless of contamination level.
Inactive PFAS Use
In January 2023, the EPA proposed another regulation that would prevent the manufacture, processing, or use of approximately 300 PFAS chemicals. While these particular PFAS have not been made or used for many years (known as “inactive PFAS”), these chemicals have previously been used as binding agents, surfactants, sealants, and gaskets, potentially being released into the environment.
This ruling would require a complete EPA review and risk assessment before starting or resuming use of these chemicals. Without this ruling, companies could begin or resume use of these PFAS with no notification to or oversight by the EPA.
PFAS as Hazardous Substances under CERCLA
One of the most significant potential regulations is the EPA’s September 2022 proposal to designate two PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The goal of this proposal is to increase transparency around PFAS releases and to hold polluters accountable for assessment and remediation efforts. This proposal could have vast implications for federal, state, and local authorities, as well as private entities and facilities across the country. While entities would not be required to report past releases of either PFAS chemical (as they were not listed as hazardous at the time of release), they would be required to do so for any release exceeding the EPA’s proposed reportable quantity moving forward.
This ruling is pending, and the EPA plans to finalize this proposal in August 2023.
PFAS in Drinking Water
The EPA’s Office of Water proposed a ruling in December 2022 to regulate the same two PFAS chemicals (PFOA and PFOS) in drinking water. This proposed action follows another EPA action in 2021 to adopt the fifth Unregulated Containment Rule (UCMR5) providing for public water systems to collect drinking water occurrence data for 29 PFAS chemicals.
This development is part of a PFAS Strategic Roadmap commitment from the EPA. The proposal, known as a National Primary Drinking Water Regulation (NPDWR) proposal, may be finalized as early as December 2023.
Federal Information Resources
The current presidential administration has voiced a commitment to addressing PFAS effects in the environment. In such, this investigation is a key component of the PFAS Strategic Roadmap, including the EPA’s new interactive website, PFAS Analytic Tools.
This resource compiles multiple PFAS information sources in one location, helping the public, researchers, and other stakeholders better understand PFAS sources and regulation in their communities.
More than a half-dozen states are enacting PFAS regulations in 2023, ranging from labeling requirements to PFAS bans in food packaging, firefighting foam, and personal care products. Following are a few examples of what the nation can expect.
Maine is the first state in the nation to enact a total ban on PFAS use in any product, including a sweeping requirement for all companies to report or make public the amount and purpose of PFAS use. The legislation, LD 1503, bans intentionally added PFAS of any kind in accordance with a timeline allowing industries to adapt. The first piece of the mandate took effect January 1, requiring a PFAS phaseout for rugs, carpet, and fabric treatments. The law is expected to be fully in effect by 2030 with minimal exceptions.
By July 1, California law AB 652 is set to take effect, banning the sale and distribution of new children’s products containing PFAS. Instead, companies will be required to use the least toxic alternative, which may vary according to product. This law excludes electronic products and internal product components that will not have contact with the skin or mouth.
Hawaii’s law HB 1644 will ban the manufacture, distribution, and sale of some food packaging containing PFAS. This ban is expected to be fully enacted by July 1, and will include wrapping, liners, plates, food boats, and PFAS boxes. The law also prohibits firefighting foams that contain PFAS. Such foams are used to extinguish gasoline, oil, and jet fuel.
Under SB 2298, Rhode Island public water utilities will regularly monitor use of six PFAS chemicals, particularly in drinking water. If PFAS levels exceed the established limit, entities are required to provide potable water to residents through other means until the levels reach an acceptable limit.
Vermont’s S.20 law will ban intentionally added PFAS from food packaging, residential rugs and carpets, and—fittingly for Vermont—ski wax.
Keep Track of What’s Next
Keeping up with continually evolving regulations can be daunting. If your organization is concerned or has questions about how upcoming PFAS regulations may affect your operations, a third-party consultant with expert teams, like FirstCarbon Solutions (FCS), can prepare and support you to feel confident in tackling whatever is around the corner—or in the water.
FCS, an ADEC Innovations company, specializes in assisting our clients with complex environmental liabilities. Contact us for a free consultation to discuss your current and potential future obligations and how to prepare for upcoming PFAS regulations.