By Taylor Holcomb & Travis Wussow

This year, there have been a number of significant legal developments on the regulation of PFAS (per- and polyfluoroalkyl substances). Expect more as the year unfolds.

New studies that show the presence of PFAS in common household products are being released each week, along with new stories covering challenges faced by municipal water suppliers in addressing these compounds. Although research is ongoing, some studies have linked PFAS with a number of health concerns, and these compounds do not easily break down in nature. As such, PFAS in the environment carries a big price tag. Earlier this year, DuPont de Nemours finalized a $1.2 billion settlement with cities and water utilities across the country. A few weeks later, 3M finalized a similar settlement between $10.5 and 12.5 billion. 3M has announced that it will exit manufacturing of PFAS by 2024. The funds for both of these settlements will go to PFAS filtration systems at drinking water systems.

PFAS can be found in common household goods like nonstick pans, water-resistant clothing, and even pizza boxes, and have been found in drinking water and surface water across the country. PFAS have also been used in firefighting foam at military installations. In short, PFAS appear to be ubiquitous, and so there isn’t an industry that shouldn’t be paying attention to PFAS regulatory developments.

Due to the emerging issues and heightened public attention around PFAS, EPA in 2021 announced a whole-of-government strategic roadmap on addressing PFAS. The roadmap lays out a three-pronged approach: adding new restrictions on air and water emissions of PFAS and new regulations for PFAS disposal; expanding remediation and cleanup of existing PFAS contamination; and funding PFAS research to better understand these compounds and their impact on health and the environment.

EPA has continued to issue new rules to implement this strategic roadmap. These include the following:

• Superfund Designation: EPA designated two PFAS—PFOA and PFOS—as hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as the Superfund law. This designation provides landowners with tools to speed up remediation and cleanup and exposes those responsible for PFAS contamination to significant new liability under the “polluter pays” principle. As PFAS are found in a wide variety of contexts, this raises new questions for landfill operators, who are passive recipients of these goods. The rule also triggers new PFAS release reporting obligations. The rule went into effect on July 8, 2024.
• Interim Guidance on PFAS Disposal: EPA issued interim guidance on the destruction and disposal of PFAS (excluding household items). The guidance points to three disposal methods that have a lower potential for release and that EPA considers more protective technologies: (1) underground injection in Class I nonhazardous or hazardous injection wells; (2) hazardous waste landfills, with a recommendation for Subtitle C landfills with high quantities of waste; and (3) thermal treatment in permitted hazardous waste combustors. EPA notes in its interim guidance, however, there may be limited availability of Class I injection wells, and additional research needs to be conducted with respect to air emissions from thermal treatment of PFAS.
• Drinking Water Standards: EPA issued new standards for PFAS in drinking water, which will require public water systems to reduce levels of PFAS across the country. EPA has not issued a new drinking water standard since the 1990s. The Bipartisan Infrastructure Law included $1 billion in funding to assist states and territories with reducing PFAS levels. Under these new standards, public water systems must complete initial monitoring by 2027 to determine baseline levels and implement solutions to bring PFAS levels into compliance with the new standards by 2029.

These are just a few of 2024’s PFAS regulatory developments, and more PFAS-related regulations are expected in the coming months.  In the meantime, Jackson Walker is advising clients managing PFAS contamination issues and seeking to understand the implications of these new regulations for their operations. If you have questions or concerns about these issues, please reach out to Taylor Holcomb or Travis Wussow.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For questions related to water quality regulation, environmental litigation, and toxic tort, please contact Taylor Holcomb, Travis Wussow, or a member of the Environment & Natural Resources practice.

Meet Taylor

Meet Travis

Travis Wussow is a regulatory and governmental affairs lawyer with extensive experience solving complex regulatory and public policy problems. As an advisor and advocate, Travis assists clients in navigating and shaping their regulatory landscape, helping them maintain compliance while advancing their broader strategic goals. His extensive public policy experience spans healthcare, technology, education, constitutional law, and international human rights. This diverse background allows him to bring a unique perspective to his practice.