Those required to comply with certain reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA) have been afforded an eight-month delay, shifting reporting to commence July 11, 2025, and be completed by Jan. 11, 2026. Reporting was supposed to commence Nov. 12, 2024, before this delay was announced by the Environmental Protection Agency (EPA). The delay is driven by funding shortages leading to delays in the reporting software development.

Under the rule, persons that manufacture or have manufactured or imported PFAS and PFAS-containing articles in any year since Jan. 1, 2011, are required to report to EPA PFAS uses, production volumes, byproducts, disposal, exposures, and existing information on environmental or health effects. The reporting rule is intended to allow EPA “to better characterize the sources and quantities of manufactured PFAS in the United States.”

In the direct final rule extending the reporting deadlines, EPA indicated that it did not anticipate receiving adverse comments on the extensions but, if it did, it would withdraw the direct final rule allowing for the extension. The direct final rule is open for comment through Oct. 7, 2024. Given that the EPA identified that a five percent reduction to the TSCA program’s 2024 budget was resulting in the EPA making “difficult choices” on priorities, it is not clear how the agency would achieve the software deployment by Nov. 12, 2024, if it withdraws the direct final rule due to adverse comments.

Under the EPA’s definition of PFAS, the EPA has identified at least 1,462 PFAS for possible reporting under TSCA. This extension, if it holds, will allow more time for manufacturers to gather the necessary information to be ready for reporting submissions on July 11, 2025. The additional time will also allow for more outreach to these manufacturers to ensure that those affected by the reporting requirements are aware of them and able to familiarize themselves with the applicable requirements.

New Jersey, North Carolina, and New Mexico are urging the U.S. Environmental Protection Agency (EPA) to add four PFAS chemicals—PFOA, PFOS, PFNA, and GenX—to the list of Hazardous Air Pollutants (HAPs) under the Clean Air Act. The Petition highlights the environmental and health risks posed by PFAS, particularly their persistence in the atmosphere and potential to contaminate soil and water.

While these chemicals are best known for their contamination of drinking water, the release of PFAS into the air has become an increasing concern. According to the Petition, airborne PFAS can settle on land or water bodies, leading to the same contamination problems seen in groundwater, but over potentially wider areas.

The Petition and Its Key Points

The Petition outlines the dangers of PFAS emissions from industrial sources and requests that the EPA formally recognize them as HAPs under the Clean Air Act. If this request is approved, industries that release PFAS into the atmosphere would be subject to stricter regulations aimed at controlling and reducing emissions. Specifically, these industries would have to adopt Maximum Achievable Control Technology (MACT) standards, requiring them to limit emissions to the lowest feasible levels using the best available technology.

The Petition highlights that airborne PFAS emissions contribute to widespread environmental contamination, affecting both air and water quality. It also stresses that these pollutants do not break down naturally and can travel significant distances, leading to far-reaching impacts. Listing PFAS as HAPs would require industries to report their emissions, install advanced emission control technologies, and undergo more rigorous permitting processes.

Health and Environmental Impact

The health risks associated with PFAS exposure are well-documented, including cancer, liver toxicity, and developmental issues in children. In particular, PFOA and PFOS—two of the four PFAS named in the petition—have been studied extensively and are linked to severe long-term health effects. GenX and PFNA, though less widely studied, are believed to pose similar risks.

By tackling PFAS through the lens of air pollution, the Petition takes a broader view of the risks these chemicals pose, recognizing that PFAS emissions can contribute to contamination beyond localized water sources. The states argue that regulating PFAS emissions under the Clean Air Act is a necessary step in protecting public health and preventing the chemicals from entering the environment through multiple pathways.

Overall, the Petition underscores the urgency of addressing PFAS pollution from all angles, including air emissions, and represents a new frontier in the regulation of PFAS. The Petition highlights the growing concern regarding the presence of PFAS in more than just drinking water and the associated impacts to human health and the environment. For further information regarding PFAS in pesticides, contact a member of Taft’s Environmental group. 

EPA is requiring additional testing at sites subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) five-year review based on PFAS standards issued under the Safe Drinking Water Act (SDWA).

In April 2024, EPA finalized a rule designating two of the most studied and prevalent PFAS,  Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS), as hazardous substances under CERCLA. The rule was published May 8, 2024, and became effective July 8, 2024. 40 CFR § 302.4(a). As a consequence of the designation, owners or operators of a facility or vessel where PFOA or PFOS are released are responsible for the reporting, investigation, remediation, and monitoring requirements under CERCLA.

An important issue raised by the designation is whether previously remediated sites will be reopened for testing of PFOA and PFOS. In a question and answer document EPA released with the finalized rule, EPA stated it would not require sampling from National Priority List (NPL) sites that are designated final or deleted. However, it left the door open to evaluating PFAS levels at sites subject to five-year reviews.

Five-year reviews are required when a remedial action results in any hazardous substances, pollutants, or contaminants remaining at the site “above levels that allow for unlimited use and unrestricted exposure.” 42 USC § 9621(c); 40 CFR § 300.430(f)(4)(ii). The purpose of the review is to “assure that human health and the environment are being protected by the remedial action being implemented.” 42 USC § 9621(c). As part of the review, EPA ultimately issues a “protectiveness statement” describing the extent to which the remedies are still protective and whether any additional remedies are needed.

EPA has indicated it may expand the risk assessment for a site when there is a new exposure pathway, a new potential contaminant of concern, or an unanticipated byproduct of the remedy. The risk assessment determines the risks to human health and the environment by contaminants at a site and informs the development of response actions. 40 CFR § 300.430(d)(1). By expanding the risk assessment, the agency would take a fresh look at the site to determine if any further remedial actions are necessary to protect human health and the environment.

EPA has required PFAS testing at many sites subject to five-year review in the past. However, recent EPA actions have changed the scope of the five-year review for PFAS contaminants in two major respects: (1) the designation of PFOA and PFOS as hazardous substances under CERCLA lowers the threshold finding EPA is required to make before initiating a removal action; and (2) the setting of maximum contaminant levels (MCLs) and maximum contaminant level goals (MCLGs) of certain PFAS under the SDWA has established a potential cleanup standard.

Threshold Finding

EPA’s authority to remedy a site depends on the nature of the contaminants and the threat to public health and the environment. Whereas a release or threatened release of a hazardous substance triggers a removal action when there is a “threat to public health or welfare of the United States or the environment,” a finding of “imminent and substantial danger to the public health or welfare” is required upon the release or threatened release of a pollutant or contaminant. 40 C.F.R. § 300.415(b)(1); 42 USC § 9604(a)(1). So, the threshold finding for hazardous substances requires only a “threat”, while pollutants or contaminants require “imminent and substantial danger”. Thus, the threshold finding for hazardous substances is much lower than for pollutants or contaminants.

Sites with PFOA and PFOS could be subject to removal actions at a much higher rate than before. Other PFAS chemicals could also be subject to removal actions, but EPA would have a higher bar to meet. Also, exceedances of the drinking water standards may serve to justify a finding of a “threat” or “imminent and substantial danger” to public health or welfare.

Cleanup Standards

Under CERCLA, the remedial action chosen for the site is required to attain the “legally applicable or relevant and appropriate standard, requirement, criteria, or limitation” (ARAR) under any federal environmental law, including the SDWA. 42 USC § 9621(d)(2). Where “appropriate under the circumstances,” the MCLG is required. Id. In April 2024, EPA finalized the National Primary Drinking Water Regulation (NPDWR) for PFOA, PFOS, Perfluorohexane sulfonate (PFHxS), Perfluorononanoic acid (PFNA), and Hexafluoropropylene Oxide Dimer Acid (HFPO-DA, or GenX) pursuant to the SDWA. This regulation set MCLs and MCLGs for each of the listed PFAS chemicals, as well as a hazard index for mixtures.

EPA now has cleanup standards for the five PFAS chemicals addressed in the NPDWR. Whether the MCLs or MCLGs are appropriate will depend on the unique circumstances of each site.

EPA Five-Year Reviews

In conducting five-year reviews since the CERCLA rule went into effect, EPA regional offices have cited the MCLs as a basis for further testing. For example, at the 57th and North Broadway Streets Superfund Site in Sedgwick County, Kan., additional sampling was recommended in light of the MCLs based on the site’s history of automotive salvage, oil refining, and production of industrial finishes and coatings.

Even where PFAS concentrations at a site are above the MCLs, a response action is not automatically triggered. At the Saco Tannery Waste Pits Superfund Site in York County, Maine, EPA noted that while groundwater PFAS concentrations were above the MCLs, EPA did not identify any of the PFAS as contaminants of concern. EPA indicated that it will conduct a remedial investigation to determine if a PFAS source exists on the site and if there is any migration to private wells. At the Baird & McGuire Superfund Site in Norfolk County, Mass., EPA noted that groundwater PFAS levels exceeded the MCLs but issued a short-term protective determination based on the groundwater controls in place at the site. EPA wanted to conduct further PFAS testing to determine the extent of PFAS contamination.

Based on the above sampling of five-year reviews, EPA is gathering more information to determine the extent and impact of PFAS contamination at various sites. It is unclear when and if exceedances of the MCLs will trigger additional remedies, and whether EPA will require sites to meet the MCLs. Generally, additional remedies will not be necessary if the current remedies are adequately addressing PFAS as well as other contaminants. However, additional remedies may be required if the current remedies are not sufficiently containing a PFAS source.

It is important to note that the MCLs will not be the appropriate standard in most circumstances. Whether the MCLs are appropriate depends on the circumstances at the site, but any remedy must at least assure “protection of human health and the environment.” 42 USC § 9621(d)(1). MCLs set the standard for PFAS levels in drinking water, so they would not properly apply to PFAS concentrations in soil. Similarly, the MCLs would not apply to water that is not going to be used as drinking water.

Past and current owners and operators of industrial properties should be aware that EPA may use the MCLs as the benchmark for PFAS concentrations at many sites, potentially leading to the reopening of previously remediated sites. For help navigating federal and state PFAS laws, contact a member of Taft’s Environmental group.

On July 24, 2024, Environmental Health Perspectives (EHP) published a study relating to the presence of per- and polyfluoroalkyl substances (PFAS) in pesticide products. PFAS are a class of manmade chemicals used for decades in industrial/consumer products because of properties like resistance to heat, fire, stains, and water. PFAS have been linked to serious health concerns, such as cancer, and have been detected in water, soil, air, food, household and workplace materials, and human blood across the world.

The study concludes that nearly 25% of all U.S. pesticide active ingredients are organofluorines (organic compounds that contain a carbon–fluorine bond) and 14% are PFAS. PFAS are a type of organofluorine or fluorinated molecule. For “active” ingredients approved by EPA within the last 10 years, the study finds that 61% are organofluorines and 30% are PFAS. For “inert” pesticide ingredients approved by EPA, the study finds a seemingly limited presence of PFAS but notes there is a significant lack of information on this issue. Furthermore, the study finds that leaching of PFAS from fluorinated containers into pesticide products is a significant contributor to the presence of PFAS in pesticides. Study, p. 1.

In light of the foregoing, the authors of the study make several recommendations, including: (1) more stringent government agency risk assessment for fluorinated pesticides; (2) transparent disclosure of inert ingredients on pesticide labels; (3) a phase-out of post-mold fluorination of plastic containers; and (4) environmental monitoring and biomonitoring of all PFAS pesticides to gather timely data on their bioaccumulation and potential impact on human and ecosystem health. Id.

The Study’s Findings

The authors state they designed their study to analyze the various ways pesticide products can include PFAS, the extent of PFAS contamination in pesticide products, and the associated implications of PFAS in pesticide products on human health and the environment. Id. at p. 2.

The authors studied 471 unique and conventional active ingredients for pesticides registered by EPA and found that 23% of these ingredients are organofluorines and 14% meet the Organisation for Economic Cooperation and Development’s (OECD) definition for PFAS. OECD defines PFAS as “fluorinated substances that contain at least one fully fluorinated methyl or methylene carbon atom (without any H/Cl/Br/I atom attached to it).” A New OECD Definition for PFAS. This definition includes almost any chemical with at least one perfluorinated methyl or perfluorinated methylene group. The authors also studied 54 conventional active ingredients approved in the last 10 years, finding that 61% of these ingredients are organofluorines and 30% meet OECD’s definition of PFAS. Study, p. 3.

Through a public records request to EPA, the authors of the study learned that EPA previously identified 24 approved inert ingredients as PFAS or suspected PFAS. The authors found that EPA cancelled 12 of these ingredient approvals and that one ingredient did not have any carbon-fluorine bonds, concluding that 11 currently approved inert pesticide ingredients contain organofluorines. Of these 11 organofluorine inert ingredients, the authors found that 8 meet the OECD definition of PFAS. Id. at p. 4.

The study also analyzes the presence of PFAS in pesticides through leaching from fluorinated high-density polyethylene (HDPE) containers. The study notes that EPA found that fluorinated HDPE containers can leach perfluorinated carboxylic acids (PFCAs), a subset of PFAS, into pesticides stored in such containers. The authors conclude that roughly 20% to 30% of all hard plastic containers used in the agricultural sector are fluorinated. Id. at p. 6.

The authors also studied the consequences of PFAS in pesticides, finding that: (1) negative impacts to the immune system is one of the most significant adverse effects to humans from PFAS exposure; (2) PFAS is highly stable in the environment and will persist in the environment essentially forever; (3) PFAS active ingredients are present throughout the country in streams, lakes, and rivers; and (4) PFAS active ingredients can contaminate drinking water. Id. at pp. 6-10.

The Study’s Recommendations

In light of its findings, the study recommends the following:

  1. The practice of post-mold fluorination of plastic containers should be discontinued and substituted with other options that do not use fluorine or an in-mold fluorination process found not to produce PFAS;
  • The U.S. and other countries should require disclosure of all pesticide ingredients on pesticide labels and safety data sheets (SDSs);
  • EPA should issue a data call-in for any pesticide ingredients that do not have immunotoxicity studies;
  • All PFAS pesticides should be evaluated for environmental persistence, and the most persistent PFAS pesticides should be mitigated/replaced;
  • The U.S. should expand environmental monitoring and biomonitoring programs to include all PFAS pesticides;
  • EPA should assess the cumulative impacts from fluorinated degradants common to active ingredients and how fluorinated pesticides can impact total fluorine in the environment and food. Id. at p. 10.

This study highlights the growing public awareness and concern regarding the presence of PFAS in pesticide products and the associated impacts to human health and the environment. For further information regarding PFAS in pesticides, contact a member of Taft’s Environmental group.  

On July 22, 2024, the Center for Food Safety and several other entities submitted a petition to EPA relating to the potential presence of per- and polyfluoroalkyl substances (PFAS) in pesticide products registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The petition cites to studies and reports showing the presence of PFAS in registered pesticide products, EPA’s finding that PFAS can leach into pesticide products from fluorinated pesticide containers, and EPA’s acknowledgement of human health and environmental dangers associated with PFAS exposure. The petition requests that EPA take a broad range of actions to address the potential presence of PFAS in FIFRA-registered products, their active/inert ingredients, and fluorinated containers. The requested relief includes cancellation and/or suspension of existing pesticide ingredients alleged to be PFAS, updating regulatory definitions to more specifically define/address PFAS content, and expanded consideration of PFAS impacts during the pesticide registration process.

Why are the Petitioners Focused on PFAS?

PFAS are a group of manmade chemicals that have been used for decades in industrial/consumer products because of properties like resistance to heat, fire, stains, and water. However, PFAS have been linked to serious health concerns, such as cancer, and have been detected in water, soil, air, food, household and workplace materials, and human blood across the world.

Petitioners allege that EPA has approved “hundreds” of pesticide ingredients that qualify as PFAS, despite acknowledging that PFAS is a public health and environmental concern. Center for Food Safety Demands EPA Act to Protect Public Health and Environment from PFAS Chemicals in Pesticides. Petitioners also allege that EPA previously identified issues with leaching of PFAS chemicals from fluorinated high-density polyethylene (HDPE) containers into the pesticides packaged in those containers. Petition, p. 77.

What Actions Do Petitioners Request from EPA?

To address concerns about the alleged presence of PFAS in pesticides, petitioners request EPA take the following actions:

  1. Cancel registrations for all pesticide products containing active/inert ingredients that qualify as PFAS pursuant to FIFRA § 136d(b), in accordance with the United States Geological Survey (USGS) definition for PFAS (found at 15 U.S.C. § 8931(2)(B), and state-based definitions of PFAS, and refrain from approving future registrations that meet these definitions.
  1. Suspend registrations for all pesticide products containing active/inert ingredients that qualify as PFAS under 15 U.S.C. § 8931(2)(B), pending completion of cancellation proceedings under FIFRA.
  1. Amend 40 CFR § 158.300 (Product Chemistry Definitions) to define PFAS as “a class of fluorinated organic chemicals that contain at least one fully fluorinated carbon atom.”
  1. Amend 40 CFR § 165.25 (Nonrefillable Container Standards) to prohibit use of fluorinated HDPE, polyethylene, and polypropylene containers. Petitioners allege that these storage containers contain PFAS as a result of the fluorination process and leach those PFAS into pesticides. Id. at pp. 4-10.

As alternatives to petitioners’ requests in (1) and (2) above, petitioners request that EPA:

  1. Amend 40 CFR § 152.112 to explicitly require EPA to consider the long-term impacts of PFAS chemicals on human health and the environment.
  1. Amend 40 CFR § 158.630(d) to require registrants to submit data on the persistence of their PFAS ingredients in the environment as well as other toxicity data specific to PFAS chemicals.
  1. Create a Guidance Document for PFAS in Pesticides that (i) recommends reporting any PFAS contamination in pesticides to EPA as part of FIFRA reporting obligations, (ii) specifies that EPA finds PFAS contamination “toxicologically significant”, requiring registrants to report contamination to EPA immediately, and (iii) provides guidance to risk assessors for evaluating the potential risk of PFAS in pesticides to the environment and public health. Id.

This petition highlights growing public awareness and concern of PFAS exposure and associated health risks from pesticide use. For further information on PFAS and EPA pesticide regulations, contact a member of Taft’s Environmental group.

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On August 8, 2024, the Coosa River Basin Initiative (CRBI), an environmental organization based in Georgia,  and the City of Calhoun, Georgia (the City), announced that they had reached a proposed settlement in a citizen suit case involving alleged violations of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) focused solely on the City’s land application of PFAS-containing biosolids.

CRBI, through its counsel at Southern Environmental Law Center, filed a complaint in the U.S. District Court for the Northern District of Georgia on March 7, 2024, against the City and the owner of property used for land application of the City’s biosolids. The Complaint included the following alleged CWA violations:

  • The City’s land application of PFAS-contaminated biosolids onto land that was hydrologically connected to navigable waters through groundwater was the “functional equivalent” of discharging PFAS directly into navigable waters without an NPDES permit;
  • That PFAS are a toxic pollutant and that the City, therefore, violated its existing NPDES permit by failing to “take all reasonable steps to minimize or prevent any discharge or sludge disposal which might adversely affect human health or the environment,” provide notice to downstream users and take reasonable steps to prevent injury when a toxic substance has been discharged, and enforce noncompliance with any applicable pretreatment standard or requirement.
Continue Reading Settlement Reached in Biosolids Focused PFAS Litigation
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On May 1, 2024, Colorado became the thirteenth state to pass legislation banning per- and polyfluoroalkyl substances, commonly referred to as PFAS. The move comes shortly after PFAS received exceptional public attention when EPA finalized its first-ever national drinking water standards for six PFAS this past April. The release of these new standards now requires states and industry to act quickly and strategically on plans to restrict PFAS from water systems. For Colorado, multiple areas across the state detected PFAS in the water beyond EPA limits when EPA required water systems across the nation to test for dozens of PFAS last year.

Continue Reading Colorado Bans Forever Chemicals After EPA Sets New PFAS Water Standards

Since EPA announced a Final Rule designating certain per- and polyfluoroalkyl substances (PFAS) as hazardous substances, there has been ample national attention on what the legal and regulatory landscape would look like in restricting these dangerous substances. Various states have taken independent action to curtail the significant health and environmental risks posed by PFAS. Recently, Vermont moved to further restrict the prevalence of PFAS in products sold in their state.

Continue Reading Vermont Legislature Takes Action to Limit PFAS in Common Commercial Products

The State of Michigan recently took another step aimed at protecting the environment and public health from the impact of per- and polyfluoroalkyl substances (PFAS). Last week, State Rep. Penelope Tsernoglou (D-East Lansing) and Majority Floor Leader Abraham Aiyash (D-Hamtramck) introduced The Hazardous Products Act under House Bill 5657 (the “Legislation”), which would prohibit, the sale and distribution of products containing intentionally added PFAS by Jan. 1, 2027, including, without limitation, cookware, cosmetics, and children’s products. The Legislation would also prohibit the discharge or use of PFAS-containing class A or class B firefighting foam by Jan. 1, 2027. The Legislation has roughly 20 co-sponsors and was referred to the Michigan House’s Natural Resources Committee.

If enacted, the Legislation would ban the sale of products that contain intentionally added PFAS. The Legislation defines “PFAS” as a “perfluoroalkyl or polyfluoroalkyl substance that includes any member of the class of fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.” Under the Legislation, PFAS is intentionally added if the PFAS added by a manufacturer “has a functional or technical effect on a product, or a component thereof, or the manufacturing process. Intentionally added PFAS includes any PFAS that is a component or a breakdown product of an intentionally added chemical that has a functional or technical effect on the product, or a component thereof, or the manufacturing process.”

Continue Reading Michigan Takes Step to Limit PFAS Through Hazardous Products Act
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On April 10, 2024, U.S. EPA announced a National Primary Drinking Water Regulation (NPDWR) establishing legally enforceable Maximum Contaminant Levels (MCLs) and non-enforceable Maximum Contaminant Level Goals (MCLGs) for six per- and polyfluoroalkyl substances (PFAS) in drinking water under the Safe Drinking Water Act (SDWA).

The final rule requires public water systems to: (1) complete initial monitoring for these PFAS by 2027 and provide public notice of initial monitoring results beginning in 2027; (2) implement solutions by 2029 to reduce these PFAS if drinking water levels exceed the MCLs; and (3) starting in 2029, take action to reduce PFAS in response to violations of the MCLs and to provide public notice of any such violations. EPA PFAS NPDWR Summary.

A pre-publication version of EPA’s final rule is available here.

Continue Reading US EPA Finalizes New National Drinking Water Standards for Six PFAS