U.S. EPA and California Move Towards Comprehensive PFAS Regulation

In last year’s update, we provided an overview of federal and California regulatory actions designed to protect public health and the environment from the impacts of per- and polyfluoroalkyl substances (PFAS). These actions affected a wide variety of stakeholders within the regulated community, including owners of PFAS-contaminated properties, water purveyors, sellers of products containing PFAS, and industries that utilize PFAS in their operations. Since that update, there have been significant developments, especially at the federal level, where the U.S. Environmental Protection Agency (EPA) has proposed several rules and regulatory actions involving PFAS under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA) and the Toxic Substances Control Act of 1976 (TSCA). Some of these developments indicate a shift in the regulatory posture from non-enforceable advisories to more mandatory compliance mechanisms.

Meanwhile, California’s Legislature recently enacted and the Governor signed into law two bills pertaining to PFAS. AB 1817 (Ting) prohibits the manufacture, distribution, or sale within the state of any new textile article containing certain PFAS beginning January 1, 2025. AB 2771 (Friedman) prohibits the manufacture, distribution, or sale of any cosmetic product in the state with “intentionally added” PFAS, also beginning on January 1, 2025.

Proposed CERCLA Regulation

On September 6, 2022, EPA published in the Federal Register a proposed rule to designate two widely used and heavily-studied PFAS compounds – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – as “hazardous substances” under CERCLA, also known as the Superfund law. CERCLA authorizes the federal government to investigate, remove and remediate releases of hazardous substances to the environment, and it imposes liability for the costs of such activities on “potentially responsible parties” including current owners and operators of sites where the releases occurred, past owners and operators of sites where disposal of hazardous substances occurred, persons who arranged for the disposal of a hazardous substance at a site, and persons who transported a hazardous substance to a site. CERCLA liability is strict – i.e., liability arises without fault – and liability to the government and non-liable private parties is generally joint and several, so that each individual liable party can be held responsible for all of the investigation, removal, and remediation costs.

By David Cooke, Kamran Javandel, Daniel Warren Allen Matkins

Source: https://www.jdsupra.com/legalnews/u-s-epa-and-california-move-towards-3573153/