PFAS

Earlier this week, the D.C. Circuit Court granted the Environmental Protection Agency (the “EPA”) a 60-day stay of litigation regarding the agency’s PFAS drinking water rule, allowing the Trump administration time to review the first of its kind federal drinking water PFAS regulation which previously set stringent limits on 6 PFAS in drinking water.

While this requested stay comes as no great surprise given the Administration’s commentary on the EPA, as PFAS has appeared at the State level to be a bit red and blue color blind, having the federal government pause and potentially take a step backwards in regulating PFAS in drinking water will put the state regulatory apparatus in a bit of a pause mode as well.

The U.S. Court of Appeals for the District of Columbia Circuit entered an order granting a motion filed earlier in the day by EPA in American Water Works Association (AWWA), et al. v. EPA, where the agency asked the court “to hold this matter in abeyance for 60 days to allow new Agency leadership to review the underlying rule.”  In English, give us some time to digest what the new Administration wants to do here on this front before proceeding with this litigation.

As requested, the Court granted the request and the consolidated case is “held in abeyance pending further order of the court,” the order says, directing EPA to file motions to govern future proceedings in the litigation by April 8.

As noted in the court filing, EPA’s Feb. 7 motion seeking the stay advised that new leadership at the agency “is in the process of familiarizing itself with the issues presented in this case and related litigation.” The motion was unopposed. The case is being briefed to the court.

Per Suzanne Yohannan of IWP News, the Safe Drinking Water Act rule, issued last April 2024, set first-time regulatory limits for PFAS in drinking water, establishing a maximum contaminant level (MCL) of 4 parts per trillion (ppt) individually for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), and an MCL of 10 ppt individually for hexafluoropropylene oxide dimer acid (HFPO-DA), more commonly referred to as a GenX chemical; perfluorononanoate (PFNA), and perfluorohexanesulfonic acid (PFHxS).

Opponents of the rule (i.e., chemical and manufacturing trade groups and various water utility groups) filed suit claiming that the EPA lacked authority in this arena and that its cost benefits analysis was flawed.

Green Sprouts – while the move by the Administration is not a surprise, given the collective red and blue state hodge podge of approaches at the State level, some clarity from the federal government on the science and on acceptable levels of PFAS, if any, in our drinking water would have been welcome. Pausing the implementation for 60-days to give the new Administration time to review the standard, if ultimately modified by the new Administration, would only be delaying what the States are looking for which is clarity of what is safe and acceptable levels of PFAS, if any, in drinking water. 

For More Information

If you have any questions about this Alert, please contact Brad A. Molotsky, Lindsay Ann Brown, Lori A. Mills, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

Reposting an Alert circulated last week on the EPA’s proposed rule:

The proposed rule “clarifies” that the PFAS chemical will be automatically added to the TRI list of chemicals as of January 1 regardless of whether the EPA has published a rule updating the TRI list.

On January 17, 2025, the U.S. Environmental Protection Agency (EPA) proposed a rule clarifying that the PFAS automatically added to the Toxics Release Inventory (TRI) list by the National Defense Authorization Act for Fiscal Year 2020 (NDAA) are effectively TRI-listed chemicals (i.e., “toxic chemicals”) as of January 1 of the applicable year. This means that all TRI requirements, including the supplier notification requirements, apply to these chemicals at that time, regardless of whether the EPA has issued a final rule adding the chemical(s) to the TRI list. This clarification, if approved, emphasizes the need for suppliers subject to the TRI supplier notification requirements to pay close (or even closer) attention to the triggers identified in the NDAA for adding PFAS to the TRI.

The NDAA automatically adds certain PFAS to the TRI list beginning January 1 of the year following the occurrence of certain EPA triggering activities listed in the NDAA. Since the enactment of the NDAA, each year the EPA has issued a final rule officially “adding” the PFAS to the TRI list. That final rule, however, often comes days, weeks or even months after January 1, creating some confusion in the regulated community as to when the chemicals are officially listed and subject to the TRI requirements. The proposed rule “clarifies” that the PFAS chemical will be automatically added to the TRI list of chemicals as of January 1 regardless of whether the EPA has published a rule updating the TRI list.

In terms of TRI chemical reporting, the proposed clarification changes little, as TRI reporting for any newly added chemical would not be due to the EPA until July 1 of the following year. Hence facilities will have time to assess the reporting impact of any PFAS that may have been added to the TRI, even if the EPA triggering activity occurred late in the year.

But for suppliers required to provide supplier notifications to their customers informing them of the presence of any toxic chemicals or mixtures in their product, the proposed rule highlights the importance of closely tracking any triggering activities by the EPA. If an EPA triggering activity occurs on December 31, the PFAS chemical at issue will be added to the TRI list the very next day,and suppliers will be required to ensure all shipments of products containing the newly added PFAS have an updated notification providing the required information about the chemical. When triggering events occur late in the year, suppliers may have little to no advance notice of the required change in their supplier notifications—unless they have been closely monitoring the EPA’s triggering activities.

Thus, suppliers are urged to diligently monitor the EPA’s trigging activities, now more than ever, so they are not caught off guard by late-year additions to the TRI list. The EPA triggering activities include:

1. Finalizing a toxicity value for the PFAS or class of PFAS.
2. Making a determination that a use of the PFAS or class of PFAS is a significant new use under TSCA Section 5(a)(2).
3. Adding the PFAS or class of PFAS to a list of substances covered by an existing significant new use rule.
4. Adding the PFAS or class of PFAS to the list of active chemical substances on the TSCA Inventory. See NDAA 2020 Section 7321(c)(1)(A).

Customers receiving supplier notifications should always pay careful attention to revisions in those notifications, which are either included in or attached to the product safety data sheets for those products. As we advised in a prior Alert, PFAS added to the TRI have been designated as chemicals of special concern. This means they have lower reporting thresholds and the de minimis exemption does not apply when determining reporting thresholds or notification requirements. This will result in more PFAS being identified in supplier notifications potentially triggering new or additional reporting requirements for the receiving facilities when their annual TRI reporting is due the following July.

Comments on the proposed rule must be received on or before February 18, 2025.

For More Information

If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. Mills, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

The U.S. Environmental Protection Agency announced that it is amending the Toxic Substances Control Act regulation requiring manufacturers (including importers) to report certain data on perfluoroalkyl and polyfluoroalkyl substances (PFAS). Under the amendment, the data submission period will now begin July 11, 2025, instead of November 12, 2024. For any reporter who is reporting exclusively pursuant to § 705.18(a) (article importers), and is also considered a small manufacturer under the definition at 40 CFR 704.3, the submission period shall end July 11, 2026.  For all other reporters, the submission period shall end January 11, 2026.  

A prepublication copy of the rule amendment can be found here.

On May 8, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The final rule, which EPA announced on April 17, 2024, and which will take effect July 8, 2024, is the first time EPA has ever invoked CERCLA Section 102 to designate a new substance as a hazardous substance via regulation. The publication of the rule starts the clock for any challenges to the rule, giving industry and other parties 90 days from publication to file any applicable legal challenges. Publication also triggers a congressional review period under the Congressional Review Act, giving Congress 60 “legislative days” to review the rule. EPA’s decision to release the rule now is noteworthy in that the review period likely will expire before the general election in November and potential changes in control of the House, Senate and White House.

The full Alert is available here.