Dechert attorneys examine how states and others are taking environmental regulation into their own hands as the Environmental Protection Agency begins to talk about PFAS standards.
The Environmental Protection Agency's plan for regulating per- and polyfluoroalkyl substances suggests that part of the strategy will build on efforts initiated under the Biden and first Trump administrations.
Meanwhile, multiple states are focusing on state-level legislative protections against any potential federal rollbacks to regulating PFAS, known as "forever chemicals" due to their persistence in the environment. And these domestic developments come as the international community continues to evaluate permissible PFAS uses.
As a result, businesses should assess the use of PFAS in their supply chain and carefully evaluate their commercial exposure in states and foreign jurisdictions that are expanding their PFAS legislation and regulation as new regulations are proposed and implemented.
EPA's Plans
EPA Administrator Lee Zeldin announced April 28 that the strategy will include designating an agency lead for PFAS and providing "the foundation and investment necessary for a toolbox that will help states and communities dealing with PFAS contamination."
Beyond establishing the agency lead, Zeldin said the EPA also plans to develop effluent limitations guidelines for PFAS manufacturers and metal finishers, and pursue companies deemed responsible for PFAS releases. Zeldin also signaled its proposed initiatives likely will involve Congress and industry consultation.
While stakeholders wait to see how the EPA's announcements will develop into specific actions, one particular area of continued uncertainty relates to PFAS in drinking water. At the same time that it is advancing its plan, EPA is reviewing two rules advanced under the Biden administration that expanded PFAS regulation.
The rules relate to national primary drinking water regulation and health-based maximum contaminant level goals for certain PFAS compounds, and the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act.
Following its request to stay legal challenges to these two Biden-era actions to allow the new EPA leadership to review these rules, the EPA on May 14 announced that it would maintain the current national primary drinking water regulation for PFOA and PFOS and introduce a proposal to extend the compliance date to 2031.
At the same time, the EPA said it would rescind regulations and reconsider regulatory determinations for PFHxS, PFNA, HFPO-DA (commonly known as GenX), and the hazard index mixture of these three, plus PFBS, citing compliance with the Safe Drinking Water Act as its rationale.
While the legal challenges remain in abeyance until July 2 and July 21, 2025, the EPA said it will support the Department of Justice in defending the ongoing legal challenges to the PFAS national primary drinking water regulation as it pertains to PFOA and PFOS.
State Regulation Shift
California legislators in February introduced A.B. 794, which would allow the state water board to combat challenges to the existing federal regulation by allowing the board to follow the requirements regulating drinking water that were in place on Jan. 19—the day before President Donald Trump's inauguration. An amended version of this bill has passed committee and is proceeding to the state Assembly.
Connecticut's S.B. 733, introduced in January, seeks to create a maximum contaminant level of 20 parts per trillion and force public water suppliers who test above that level over any three-month period to undertake treatment procedures.
Pennsylvania H.B. 578, introduced in February, seeks to amend the commonwealth's safe drinking water act to hold that PFAS contamination don't exceed 10 parts per trillion, regardless of what levels the EPA may set in the future.
And a proposed Vermont law also introduced in February, H-0286, seeks to outlaw six different types of PFAS from being present in drinking water, while limiting many others to 20 parts per trillion.
With the future unclear for federal drinking water regulations, many states may take it upon themselves to follow the lead of these four states. The trends in regulation and litigation regarding PFAS contamination in drinking water and beyond require continued monitoring to ensure that stakeholders can meet their compliance obligations and assess potential consequences on business needs.
Outside of drinking water limitations, other states have passed new or additional PFAS legislation. Both New York and California now prohibit the sale of certain textiles containing various levels of PFAS. New Mexico will phase out and ultimately prohibit the sale of certain consumer products containing intentionally added PFAS and designate discarded firefighting foams containing PFAS as hazardous waste.
International Efforts
Canada announced earlier this year it will take steps to propose the addition of certain PFAS to the "toxic substances list" under the Canadian Environmental Protection Act, 1999.
The country identified a phased approach to "prioritize the protection of health and the environment while considering factors such as the availability of alternatives." The first phase will address PFAS in firefighting foams, and the second phase will address PFAS in products such as cosmetics, food packaging materials, and textiles. Canada also will require manufacturers to report the use of PFAS to its national pollutant release inventory.
The European Commission reportedly will propose a ban on using PFAS in consumer products with exemptions for essential industrial uses that are still to be determined. This follows a 2023 proposal to the European Chemicals Agency to restrict the use of approximately 10,000 PFAS prepared by authorities in Denmark, Germany, the Netherlands, Norway, and Sweden.
Looking Forward
While regulatory plans for PFOA and PFOS look to proceed as expected, uncertainty and divergence will likely persist as to other PFAS—such as PFHxS and PFNA. Businesses may find it prudent to match their diligence and compliance plans to the most restrictive state and foreign markets in which they operate.
Stakeholders also should assess existing supply contracts and insurance policies to ensure that they are adequately covered for an increasingly complex regulatory landscape.
Originally published by Bloomberg Law, 20 June 2025
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