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Recent Developments in the Regulation of PFAS

In response to the growing concern regarding per – and polyfluoralkyl substances (“PFAS”), the federal government and California have taken recent actions to regulate PFAS.  

By way of background, PFAS are man-made chemicals used for decades and found in many different commercial, industry, and consumer products such as non-stick cookware and water repellent clothing. PFAS are known as “forever chemicals” because they do not readily breakdown. PFAS are found in the soil, groundwater, and air across the United States. Studies suggest that PFAS exposure may result in adverse health effects in humans and animals. 

On October 18, 2021, the United States Environmental Protection Agency (“EPA”) announced its PFAS Strategic Roadmap, which set forth EPA’s proposal to address PFAS. On August 26, 2022, EPA took significant action under its PFAS Strategic Roadmap by issuing its long-awaited notice of proposed rulemaking to designate two of the most commonly used PFAS (PFOS and PFOA, including their salts and structural isomers) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act or CERCLA. According to EPA’s press release, the “rulemaking would increase transparency around releases of these harmful chemicals and help to hold polluters accountable for cleaning up their contamination.”

The proposed rule, among other things, would require reporting of releases of PFOA and PFOS that meet or exceed a pre-established “reportable quantity.” EPA anticipates that even though required reporting may not lead to cleanup actions, it will encourage better waste management and treatment practices by facilities handling PFOA and PFOS. EPA published the Notice of Proposed Rulemaking in the Federal Register on September 6, 2022, which starts a 60-day comment period.  After responding to stakeholder comments, the proposed rule could become final.

Not to be outdone, the California legislature passed its own PFAS legislation, AB 2247, on August 30, 2022. The law will require manufacturers to collect information on and publicly disclose products or product components containing PFAS that are sold or imported into California. Under the law, manufacturers must publicly register such products on or before July 1, 2026.  Subsequently, they must register products sold or imported into the state during the prior calendar year by July 1 of each year. 

The California law defines “manufacturer” broadly to include entities that “import” the PFAS-containing products or are the “first domestic distributer of the product in the state.” Consistent with other California compliance laws such as California’s Proposition 65, the PFAS law exempts state and local agencies from compliance.

These actions are just the latest in the growing tide of PFAS regulation.  As emerging contaminants of concern, we expect other states to eventually follow California’s lead in the heightened regulation of PFAS. Companies that manufacture, sell or import PFAS-containing products should carefully follow these developments to ensure compliance with the law.