PFAS Legislative & Regulatory Developments Fourth Quarter 2024

[co-author: Leigh Logan]

Per- and polyfluoroalkyl substances (PFAS) are a large class of synthetically created organic chemical compounds that have been at the forefront of complex environmental and legal issues in recent years. While many PFAS chemicals have been found to persist in the environment and/or in human bodies for an extended period of time, there continues to be much unknown about the majority of discrete PFAS chemicals. Moreover, regulation of the class proves difficult since there is no single agreed-upon way to characterize the toxicological profile of these compounds.

As a result, there is a wide diversity of legal and regulatory approaches to PFAS across the federal government and many states. We track and monitor PFAS developments at both the federal and state level, and the information below summarizes some of the key legislative and regulatory PFAS developments that occurred in the last quarter of 2024. We will continue to monitor federal and state legislation, rulemakings and proposals as related to PFAS, and we will provide regular updates to our PHast Track blog. We also provide bespoke summaries to stakeholders interested in particular PFAS compounds or specific issues. Please be sure to subscribe to the PHast Track blog if you would like to keep abreast of the latest developments in the PFAS space and reach out to the authors if you have any questions about how they may impact your company or business.

1. Legislative: Federal

   House Bill 5009. U.S. House Bill 5009, also known as the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025 (NDAA FY 25), was signed into law—Public Law 118-159—on December 23, 2024. In the law’s nearly 800-pages, PFAS is named in only one provision, which amends a section originally contained within the NDAA for FY 2018 (Public Law 115-91), and was most recently amended by NDAA for FY 2024 (Public Law 118-31). Namely, the clause authorizes the secretary of the U.S. Department of Defense (DOD) to provide up to $5 million to the secretary of Health and Human Services to fund a study and assessment on the human health implications of PFAS contamination in drinking water, groundwater and any other sources of water or exposure pathways. NDAA FY 25 amends this provision to allow for the $5 million authorization to also occur during FY 2025. While not specifically naming PFAS, NDAA FY 25 also includes a provision that requires the DOD to procure, to the fullest extent feasible, cleaning products that are identified under the U.S. Environmental Protection Agency’s (EPA) Safer Choice program. The Safer Choice program was created to allow for consumers and purchasers for facilities to find cleaning products and detergents that are made with chemical ingredients that are deemed safer. In August 2024, the EPA updated its Safer Choice and Design for the Environment Standard, which now prohibits intentionally added PFAS from being introduced into the primary packaging of Safer Choice products.

2. Regulatory: Federal

   Final National Ambient Water Quality Criteria. On October 7, 2024, the EPA announced the availability of three documents with PFAS-related recommendations related to aquatic life. Specifically, pursuant to Clean Water Act (CWA) section 304(a), which directs the EPA to develop and publish water quality criteria, the EPA released the following:

   • Final Recommended Freshwater Aquatic Life Ambient Water Quality Criteria and Acute Saltwater Aquatic Life Benchmarks for Perfluorooctanoic Acid (PFOA)
   • Final Recommended Freshwater Aquatic Life Ambient Water Quality Criteria and Acute Saltwater Aquatic Life Benchmarks for Perfluorooctane Sulfonate (PFOS)
   • Final Acute Freshwater Aquatic Life Benchmarks for Eight Data-Limited PFAS: PFBA, PFHxA, PFNA, PFDA, PFBS, PFHxS, 8:2 FTUCA, and 7:3 FTCA.

   The EPA’s final criteria for PFOA and PFOS include criteria for both acute and chronic water column values for freshwaters, as well as chronic criteria for fish and invertebrate tissue. Due to data limitations, the EPA’s recommendations do not include final criteria values for saltwater organisms, but they do provide benchmark values, pursuant to CWA section 304(a)(2). For the additional eight PFAS addressed in its third report, the toxicity data to support criteria recommendations is limited, so the EPA stated that it used the best available data on the effects of these PFAS in order to formulate freshwater acute benchmarks. According to the EPA, its water quality criteria recommendations and benchmark values are not legally binding, but they can be relied upon by states and tribes when developing their own water quality criteria.

   Additional PFAS Proposed for TRI. On October 8, 2024, the EPA published a proposed rule to add 16 individual PFAS and 15 PFAS categories to the Toxics Release Inventory (TRI) list of chemicals for which facilities are required to report pursuant to section 313 of the Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. 11023(c). The addition of PFAS compounds to the TRI became a requirement with the passage of NDAA FY 2020 (Public Law 116-92), which included certain PFAS substances and provided requirements for later additions to occur at the beginning of each calendar year. For both the individual and categorical PFAS listed in this proposed rule, the EPA proposes a reporting threshold of 100 pounds and that all be designated as chemicals of special concern. The proposed rule also seeks to reclassify other individually listed PFAS that are currently a part of the TRI to become part of the proposed PFAS chemical categories in order to streamline reporting. Lastly, the EPA requested feedback on what events might trigger the automatic addition of PFAS pursuant to the framework provided in NDAA FY 2020. Comments on the proposed rule were due December 9, 2024.

   PFAS Ineligibility for TSCA Exemptions. On December 18, 2024, pursuant to its authority under section 5 of the Toxic Substances Control Act (TSCA), the EPA issued a final rule amending procedural regulations for the review of new chemicals. According to the agency, these changes will align with the amendments to TSCA’s new chemicals review provisions contained within the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Public Law 114-182), which was enacted in June 2016, and will increase the EPA’s efficiency in its chemical review processes. Further, the final rule also amends various regulations related to low volume exemptions (LVEs) and low release and exposure exemptions. The most notable of these amendments is making PFAS categorically ineligible for the LVEs, thereby requiring all new PFAS compounds to be reviewed through the EPA’s full pre-manufacture notice process. The EPA notes that at the time of finalizing this rule, it is “not revoking previously granted LVEs for PFAS.” However, it may use its authority as allowed by law to later review previously granted LVEs for PFAS on a case-by-case basis to determine if the LVE should be revoked. This final rule becomes effective on January 17, 2025.

   Draft Health Human Criteria for Waterbodies. On December 26, 2024, the EPA published notice of its draft recommendations for human health criteria (HHC) in waterbodies for three specific PFAS: (1) PFOA; (2) PFOS; and (3) PFBS. Issued pursuant to its authority under CWA section 304(a), the EPA stated that it developed these draft recommendations using the latest scientific knowledge available regarding the human health effects, exposure information and bioaccumulation potential of these three PFAS. According to the EPA, while its recommended criteria do not impose legally binding requirements, once the recommendations are finalized, states and tribes can rely on the EPA’s recommended criteria to develop their own water quality standards. Using its EPA 2000 Methodology guidance, the EPA developed two HHC values for each PFAS—the “water + organism” HHC and the “organism only” HHC. The water + organism HHC values are as follows: PFOA – 0.0009 ng/L; PFOS – 0.06 ng/L; and PFBS – 400 ng/L; and the organism only HHCs are the following: PFOA – 0.00036 ng/L; PFOS – 0.07 ng/L; and PFBS – 500 ng/L. The EPA will accept comments on the draft recommendations through February 24, 2025.

   2023 TRI Data Published. On October 31, 2024, the EPA released updated TRI data for calendar year 2023. The data updates preliminary results that were published in July 2024 and provide information about toxic chemical waste management and releases that occurred at more than 20,000 industrial and federal facilities in the United States. Specific to PFAS, the data show that during 2023, 61 facilities submitted 168 TRI reporting forms for 46 discrete PFAS, culminating in the management of over 1.5 million pounds of production related PFAS waste.

   EPA PFAS Strategic Roadmap Third Progress Report. In November 2024, the EPA released its third report outlining the progress the agency has made with respect to its previously published PFAS Strategic Roadmap (October 2021). The roadmap was published as part of the Biden administration’s “whole-of-government strategy to protect communities from the impacts of forever chemicals.” The third progress report details many of the EPA’s activities for 2024; the following are some highlights:

   Drinking Water:

   • The EPA finalized the National Primary Drinking Water Regulation (NPDWR) in April 2024, setting legally enforceable drinking water standards for six PFAS compounds: PFOA, PFOS, PFHxS, PFNA, HFPO-DA individually and PFAS mixtures containing two or more of PFHxS, PFNA, HFPO-DA and PFBS.
   • Pursuant to the Fifth Unregulated Contaminant Monitoring Rule (December 2021), the EPA is continuing to collect information about 29 PFAS compounds in drinking water; the rule requires sample collection on the named contaminants between 2023 and 2025, which is being conducted on more than 10,000 water systems.
   • The EPA announced $6.2 billion in funding as provided by the Infrastructure Investment and Jobs Act (Public Law 117-58, 135 Stat. 429) to address emerging contaminants in drinking water, with $1 billion being dedicated to address PFAS and emerging contaminants in small or disadvantaged communities.

   Cleanup of PFAS Contamination:

   • In May 2024, the EPA finalized its rule designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This designation will allow for cost recovery and enforcement actions at sites where PFOA and PFOS have been released, as allowed under CERCLA.
   • The EPA proposed two rules under the Resource Conservation and Recovery Act (RCRA) in February 2024. The first proposes to add nine PFAS to the RCRA regulations as hazardous constituents, and the second proposes amending the definition of hazardous waste as applicable to remediation at permitted hazardous waste treatment, storage and disposal facilities.

   Improving Chemical Safety:

   • The EPA issued a final significant new use rule in January 2024 that prevents entities from the manufacture or processing of 329 PFAS identified as inactive on the TSCA Inventory without EPA review and risk determination.
   • In January 2024, seven additional PFAS were added to the TRI, bringing the total number of PFAS compounds to be reported for the 2024 reporting year to 196.
   • In September 2024, the EPA issued a notice seeking public comment and information on the manufacture and prevalence of certain PFAS—PFOA, PFNA, PFDA—during the fluorination of high-density polyethylene and other plastic containers, which will assist the agency in promulgating rules under TSCA section 6.

3. Regulatory: States

   Minnesota. On November 18, 2024, the Minnesota Pollution Control Agency (MPCA) published a request for comments on a planned new rulemaking, PFAS in Products Reporting and Fee Rule. MPCA previously published two separate rules in September 2023—one related to PFAS reporting and another for PFAS fees. This second request for comments combines the 2023 proposed rules, which, according to MPCA, will ensure that the fee process is directly incorporated into the PFAS reporting system that is being established in the state. Pursuant to the passage of Minnesota House Bill 2310, an omnibus appropriations bill related to the environment and natural resources that included provisions to establish a reporting rule and prohibitions on the sale of products containing intentionally added PFAS (Minn. Stat. § 116.943 (2023)), the primary purpose of this rulemaking is to enable MPCA to collect information from manufacturers about their products containing intentionally added PFAS that are sold, offered for sale or distributed in Minnesota. The law requires manufacturers to report their information to the agency on or before January 1, 2026. Comments on the rulemaking were due by December 19, 2024.

   New Mexico. In October 2024, the New Mexico Oil Conservation Commission published a notice of public meeting and public hearing for November 12-15, 2024, to discuss a proposed rule to amend the commission’s regulations by prohibiting the use of PFAS and other undisclosed chemicals in oil and gas operations. The proposed amendments were petitioned by a nonprofit entity with the intent that a ban on the use of PFAS in downhole operations will “prevent the generation of PFAS-contaminated produced water and nondomestic waste.”

   North Carolina. On October 15, 2024, the North Carolina Department of Environmental Quality (DEQ) announced that its Division of Water Resources (DWR) has established interim maximum allowable concentration (IMACs) for eight PFAS chemicals in groundwater, effective immediately. Those PFAS include PFOA, PFOS, HFPO-DA, PFBS, PFNA, PFHxS, PFBA and PFHxA. The DWR received a private citizen request to develop IMACs in groundwater for these PFAS in July 2024. Pursuant to North Carolina’s Groundwater Quality Standards Rule, 15A NCAC 02L .0202(c), DWR reviewed the data supporting the request and later published notice of the intent to establish the requested IMACS on September 4, 2024. In October, DEQ stated that it concluded that the IMACs will be protective of public health and no revisions were necessary. Pursuant to state regulations, DWR has 12 months in which to make a recommendation to the Environmental Management Commission (EMC) on whether the IMACs should expire or be replaced by a new groundwater standard. Should DEQ initiate a rulemaking on any of the interim IMACs, it will undergo a formal rulemaking process as required by state law.

   Separate from the establishment of the IMACs described above, on November 1, 2024, EMC issued notice to amend the state’s Groundwater Quality Standards by proposing new standards for PFOA, PFOS and HFPO-DA. According to DEQ, the proposed standards complement the standards as established by EPA’s National Primary Drinking Water Regulation. The proposal was subject to public comment and public hearings that were held in both November and December 2024. If adopted, the proposed effective date will be July 1, 2025.

   North Carolina also announced a proposed rule on December 10, 2024, which would adopt the PFAS standards as finalized in EPA’s National Primary Drinking Water Regulation. A public hearing on the proposed rule was held on January 7, 2025, and public comments will be accepted through February 14, 2025.

   Oregon. On October 31, 2024, the Oregon Health Authority (OHA) Public Health Division issued a notice of proposed rulemaking to incorporate amendments to the state’s Toxic-Free Kids Act pursuant to the passage of House Bill 3043, signed into law in August 2023. The new law requires updates to the act’s reporting requirements, revises reporting deadlines, amends hazard assessment requirements and adds 10 chemicals to the list of chemicals designated as High Priority Chemicals of Concern for Children’s Health (HPCCCH). For the latter, PFOA will now be designated an HPCCCH, alongside PFOS, which was previously designated. The practical quantification limit for both chemicals will be set to 0.001 parts per million.

   Washington. The State of Washington Department of Ecology (DOE) released its report, the Draft Identification of Priority Consumer Products Report to the Legislature, in November 2024. State law, Chapter 70A.350 RCW, mandated DOE to implement a program that will identify and reduce toxic chemicals used in consumer products, the Safer Products for Washington program. Pursuant to the program, this report is the product of Cycle 2 of DOE’s priority product identification, and it outlines new consumer products that have been found to be “significant sources or uses of priority chemical classes.” For PFAS, DOE identified architectural paints and artificial turf as priority products that may be a source of or use these compounds. During Cycle 1.5, DOE identified PFAS-related priority products as cookware and kitchen supplies, hard surface sealers, floor waxes and polishes, and firefighting personal protective equipment. Cycle 1 has been completed with adopted rules and instituted restrictions on other priority products; those products for which the use of PFAS is restricted include aftermarket stain- and water-resistance treatments (began January 1, 2025); carpets and rugs (began January 1, 2025); and leather and textile furniture and furnishing intended for indoor use (beginning January 1, 2026). Reporting requirements are in place for leather and textile furniture and furnishing intended for outdoor use that use intentionally added PFAS (reporting deadline is January 31, 2025).