As federal regulators continue to grapple with the complexities of per- and polyfluoroalkyl substances (PFAS), a recent webinar hosted by Venable highlighted policy developments and the uncertainty looming over future regulatory action. The discussion, led by members of the firm's Environmental, Legislative and Government Affairs, and Products Liability and Mass Torts practice groups—Jim Barnette, Allison Foley, Jim Reilly, and Julie Michalski—outlined a range of legislative and regulatory measures implemented over the past decade, including a TSCA reporting rule for manufacturers and importers of PFAS, the Biden administration's recent hazardous substance designation for certain PFAS under CERCLA, and new drinking water standards.
As discussed on the webinar, the fate of these policies remains uncertain in light of the recent presidential transition, evolving priorities of the new Congress, and looming workforce reductions and budget cuts.
Legislative Efforts and Challenges
Jim Barnette and Jim Reilly traced the legislative history of PFAS regulation, noting that bipartisan efforts in the Senate have yielded some progress, though momentum has been inconsistent. They pointed to the 2019 PFAS Action Act, which initially sought broad hazardous substance designations and other regulatory actions targeting PFAS before ultimately narrowing in scope and stopping short of passage. Panelists discussed legislators' use of must-pass legislation like the annual National Defense Authorization Act to effect tailored PFAS measures and provided an update on ongoing efforts by Senator Shelley Moore Capito and others to find common ground on PFAS issues.
Allison Foley provided an update on requirements and implementation of key Biden-era PFAS rules, including discussion of current legal challenges to the rules. Rules discussed included the listing of PFOA and PFOS as CERCLA hazardous substances; the establishment of maximum contaminant levels (MCLs) for PFOA, PFOS, and other PFAS under the Safe Drinking Water Act; and the upcoming deadline by which parties that manufactured or imported PFAS between 2011 and 2022 must report PFAS information to EPA under TSCA Section 8(a)(7).
State-Level Regulation and Policy Gaps
Julie Michalski discussed the additional complexity resulting from state legislative and regulatory actions to address perceived federal regulatory gaps, with at least 30 states enacting their own PFAS-related laws and more expected to follow. The panelists emphasized that while federal policy remains in flux, states like California, Maine, and Minnesota have already moved forward with bans on PFAS in certain consumer products.
Industries affected by federal regulation are closely monitoring developments, particularly regarding liability considerations under CERCLA, and regulatory obligations such as the TSCA reporting rule, which relate to activity from over a decade ago. These and other PFAS-focused rules could give rise to significant compliance considerations and potential liability, even for unwitting users, purchasers, or "passive receivers" of PFAS or PFAS-containing materials or articles. As the Biden-era rules face legal challenges and uncertainty lingers regarding fate of PFAS rules under the Trump EPA, stakeholders across industries are seeking strategies for navigating this complex and evolving regulatory PFAS landscape.
To learn more about upcoming webinars or watch past recordings from our monthly series, Navigating PFAS: Legal Perspectives, click here. Learn more about Venable's services and capabilities at our PFAS and Emerging Contaminants page.