Across the nation, state and federal agencies are renewing their efforts to end the toxic legacy of per– and polyfluoroalkyl substances. 2021 saw a flurry of PFAS-related legislation and proposals from both California and the US Environmental Protection Agency (EPA) that is carrying over into 2022. To help breakdown the state and federal government’s response to widespread PFAS contamination, here is a snapshot of the latest news in the PFAS pipeline: 

Governor Newsom Signs New PFAS Bills and OEHHA Lists PFOS under Prop 65

Governor Newsom signed two major PFAS bills this fall on October 5th: AB 1200 and AB 652. Under AB 1200, or the California Safer Food Packaging and Cookware Act of 2021, no plant-based food packages with “intentionally added” PFAS may be sold or distributed after January 1, 2023. The law also requires cookware manufacturers to disclose if certain chemicals, including PFAS, are present in their products. A list of disclosed chemicals must be available online by January 1, 2023 and on the physical product by January 1, 2024. The law further prohibits manufacturers from claiming their products are free of a specific chemical, like PFOA, unless the product is also free of all chemicals in that class. 

A similar bill, AB 652, prohibits the sale or distribution of any new products that contain PFAS and are designed for children under 12 years old. The products affected by AB 652 include baby blankets, cribs, car seats, playpens, and highchairs. The new law, which goes into effect on July 1, 2023, does not include any electronic, medical, or adult products.

The state is also ramping up efforts to address individual PFAS chemicals in consumer products. Towards the end of December, the Office of Environment Health Hazard Assessment (OEHHA) designated PFOS as a carcinogen under Prop 65 and PFNA as a male reproductive toxicant under the same law. Any products containing PFOS or PFNA sold in California must now provide a “clear and reasonable” warning on the label or face hefty violation fees. 

Both the new bills and the OEHHA listings are big, but not unprecedented, steps towards addressing the widespread use of PFAS in consumer products. As time goes on, more and more PFAS are being phased out of consumer products across the country. Months before Governor Newsom put pen to paper, Vermont and Connecticut became the fourth and fifth states to ban PFAS in food packaging. Maine, which banned PFAS in food packaging back in 2019, passed a sweeping law that will phase out the use of PFAS in most consumer products by January 1, 2030. And California’s ban on PFAS-containing firefighting foams went into effect on January 1st this year. By following in the footsteps of prior legislation, California’s lawmakers aim to limit public exposure to these potentially toxic chemicals and prevent more chemically coated products from contaminating landfills and surface waters. 

EPA Publishes PFAS Strategic Roadmap

In mid-October, the EPA released their plan for researching, restricting, and remediating PFAS across the country. Key actions identified in the roadmap include: 

• Designating certain PFAS as “hazardous substances” under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act). On January 10, the EPA submitted a plan to the White House Office of Management and Budget that would designate PFOA and PFOS as CERCLA “hazardous substances.” The office has 90 days to oppose the EPA’s proposal before the agency can introduce the designation into the Federal Register for public comment. The agency is also developing an Advance Notice of Proposed Rulemaking (ANPR) to decide if other PFAS precursors or subgroups should be similarly designated. Under the superfund law, the EPA would have broad powers to clean up contamination sites and levy fines from polluters. Should the EPA finalize CERCLA regulations, the new rule would heavily impact many processors, products, downstream manufacturers, and waste management and wastewater facilities. So far the EPA seems on-track with their projected schedule and the notices should be available for public comment soon.

• Establishing national drinking water regulations and health advisories for certain PFAS. The EPA plans to set a National Primary Drinking Water Regulation (NPDWR) for PFOA and PFOS. The NPDWR will provide a legally enforceable national standard for contaminant levels and treatment techniques. Once the draft finishes the review process this year, the EPA will make the final ruling in the Fall of 2023 and set the nation’s first federal PFAS drinking water regulations. In addition, the EPA is publishing a final toxicity assessment for GenX and five other PFAS. The GenX assessment will help the agency create a non-regulatory health advisory report for both GenX and PFBS in the spring.

• Publishing a national PFAS testing strategy. The EPA is developing a national testing strategy to bridge toxicity data gaps and prioritize regulating high-risk PFAS or PFAS classes. The agency plans to exercise their authority under TSCA (Toxic Substance Control Act) to require PFAS manufacturers to conduct and fund the studies. The first round of testing orders will likely be issued over the next few months and the agency has scheduled a suite of TSCA actions throughout 2022.

• Increasing PFAS reporting to the Toxic Release Inventory (TRI). The EPA is seeking to increase PFAS reporting mandated by the 2020 NDAA (National Defense Authorization Act). The agency’s proposed rulemaking, expected in the spring, would categorize PFAS on the TRI list as “Chemicals of Special Concern” and remove special exemptions (i.e., de minimis eligibility) for supplier notification requirements. The agency also automatically added four more PFAS to the TRI List for the 2022 Reporting Year, as mandated by the 2020 NDAA.

• Expanding PFAS testing during the Unregulated Contaminant Monitoring Rule (UCMR) 5. UCMR is an important tool for gauging the prevalence and concentration of emerging contaminants in water systems. The final rule for UCMR 5 was published at the end of 2021, significantly expanding the number of drinking water systems participating in the program. All public water systems serving 3,300 or more people and 800 smaller representative systems will be responsible for collecting samples from January 2023 through December 2025. The EPA will also prioritize additional PFAS for inclusion in UMCR 6.

• Restricting PFAS discharges through Effluent Limitations Guidelines (ELG) and the National Pollutant Discharge Elimination System (NPDES). After conducting a multi-industry study, the EPA is establishing an action timeline for restricting PFAS discharges from multiple industry categories. Similarly, the EPA is leveraging the NPDES program to reduce PFAS discharges and obtain more information about sources of PFAS pollution. The agency expects to make significant headway into both ELG regulatory work and NPDES monitoring over the next three years.

EPA Initiates Rulemaking for PFAS Under the Resource Conservation and Recovery Act (RCRA)

In response to a petition from Governor Michelle Lujan Grisham of New Mexico, the EPA is initiating two rulemakings. The agency plans to classify four PFAS––PFOA, PFOS, PFBS, and GenX––as Hazardous Constituents under RCRA. RCRA gives the EPA the authority to control hazardous waste from “cradle to grave.” In other words, the agency can set regulations, guidelines, and policies to ensure the safe management and cleanup of listed hazardous waste. But before the EPA can add PFAS to the Hazardous Constituents list, the agency must evaluate existing data and establish a record to support the proposed rule. Should the agency finalize the ruling, the listing would be an important first step for regulating PFAS as hazardous waste. 

The second rulemaking will clarify the RCRA Corrective Action Program’s authority to require investigation and cleanup for all waste that meets the statutory definition of hazardous waste. Under the new rule, the EPA can clean up emerging contaminants like PFAS through the RCRA corrective action process.

2021 was a busy year for state PFAS legislation and 2022 is promising more federal follow-up on national regulations. Moving forward, testing will provide essential data to lawmakers responsible for legislating and regulating PFAS; which is why Babcock Laboratories, Inc. is invested in providing high-quality analytical data to our clients utilizing cutting-edge PFAS testing technologies. News breaks almost daily about regulatory responses to PFAS contamination and Babcock Labs endeavors to help keep our clients up-to-date with the latest information. For more insights into PFAS legislation or for details about PFAS testing, contact Babcock Labs.