Year in Review: 2024 Federal PFAS Roundup

At a Glance

• Environmental Protection Agency (EPA) designated two PFAS as Hazardous Substances under CERCLA and established first-ever federal PFAS drinking water standards.
• EPA increased reporting obligations related to PFAS.
• EPA provided additional time to report under TSCA Section 8(a)(7).
• EPA finalized new test methods for 40 PFAS and adsorbable organic fluorine (AOF).
• Food and Drug Administration increased inspections and raised concerns about potential PFAS in seafood.
• General Services Administration banned the use of PFAS in the cleaning equipment used by federal contractors.
• Department of Defense provided themselves a one-year waiver from the prohibition of using PFAS-containing aqueous film-forming foam (AFFF) by October 1, 2024.

For the second year in a row, 2024 was a banner year for the regulation of per- and polyfluoroalkyl substances (PFAS) at the federal level. Various federal agencies, including the Environmental Protection Agency (EPA), Food and Drug Administration (FDA), and Department of Agriculture (USDA), undertook actions related to PFAS.

EPA Actions on PFAS in 2024

First Hazardous Substance Listing for PFAS

On May 8, 2024, the EPA finalized a groundbreaking rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund law). This rule established EPA jurisdiction to require investigation and remediation of PFOA and PFOS, which also will impact permitting, testing and reporting. While the regulation did not itself set clean-up standards, the new Federal Drinking Water Standards (see below) and stricter state standards likely will become de facto groundwater clean-up standards at Superfund Sites. Although the regulation is being appealed, EPA is already requiring additional investigation at many sites.

In addition to the CERCLA rule, on February 8, 2024, EPA proposed listing 9 PFAS, including their salts and structural isomers, as hazardous constituents under the Resource Conservation and Recovery Act (RCRA). This proposal was in response to three petitions EPA received under RCRA.

First Federal Drinking Water Standards

On April 26, 2024, the EPA finalized the first national drinking water regulation for PFAS. This regulation sets drinking water standards for PFOA, PFOS, perfluorohexane sulfonic acid (PHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA) and perfluorobutane sulfonic acid (PFBS). The regulation significantly impacts public water systems (PWSs) and requires substantial new sampling, public information dissemination and compliance within five years. The standards are very low and, as noted above, these may become clean-up standards for groundwater at Superfund sites and also may encourage states to lower their drinking water and/or groundwater clean-up standards. On a related point, on September 3, 2024, the Department of Defense (DOD) published guidance incorporating EPA’s drinking water regulations into their clean-up standards.

Expanded Reporting Requirements

On January 11, 2024, EPA finalized a significant new use rule (SNUR) that requires any company that wishes to manufacture or import any of the 329 PFAS listed as inactive to submit a significant new use notice (SNUN) to EPA before manufacturing or importing the PFAS. Of note, unlike other regulations that EPA completed this year, this rule does have an exemption for impurities, byproducts not used for commercial purposes, and imported or processed PFAS-containing articles.

EPA expanded reporting requirements through the Toxic Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA) and Pollution Prevention Act (PPA). As a reminder, in 2023, EPA removed the de minimus exemption and identified all listed PFAS as “chemicals of special concern,” thereby lowering the reporting threshold to 100 pounds.

On May 17, 2024, EPA added 7 PFAS to TRI Reporting Year (RY) 2024 for a total of 196 reportable PFAS.

On October 18, 2024, EPA proposed adding 16 additional PFAS and 15 PFAS categories to the TRI. The creation of categories requires reporting by any company manufacturing processing or using any combination of PFAS chemicals within a single category greater than 100 pounds.

Finally, just after the New Year on January 3, 2025, EPA announced they added 9 PFAS to TRI RY 2025 for a new total of 205 reportable PFAS.

Starting the Process to Restrict the Use of PFAS

On July 10, 2024, EPA granted a petition from several nonprofits to establish regulations under Toxic Substances Control Act (TSCA) Section 6 prohibiting the manufacture, process, use, distribution in commerce, and disposal of 3 PFAS (PFOA, PFNA, and PFDA) formed during the fluorination of plastic containers.

On September 30, 2024 EPA requested comment on the granting of the petition, including to what extent are PFOA, PFNA and PFDA used in fluorinated containers, what alternatives exist and measures to address the risk from the chemicals. Comments were due by November 29, 2024 and EPA received over 60 comments.

Relief for Companies Importing PFAS-Containing Products

On September 28, 2023, the EPA finalized the PFAS TSCA Section 8(a)(7) reporting rule, requiring companies that manufacture or import over 1,400 different PFAS or products containing PFAS between January 1, 2011, and December 31, 2022, to report. Originally, reports were due by May 8, 2025, but on September 5, 2024, the EPA extended the deadline to January 11, 2026, due to the anticipated volume of reports.

New Preliminary Effluent Guidelines Program Plan

On December 18, 2024, the EPA published its 16th preliminary effluent guidelines program plan (Preliminary Plan 16), outlining plans for establishing effluent limitations guidelines (ELGs) and pretreatment standards for industrial wastewater discharges of PFAS and other chemicals. EPA is accepting public comments on Preliminary Plan 16 until January 17, 2025. The plan includes detailed studies on PFAS discharges from sectors such as battery manufacturing, centralized waste treatment, oil and gas extraction, and facilities processing raw PFAS into commercial products.

Increased Testing Requirements

In January 2024, the EPA finalized testing Method 1633 and Method 1621 to test for 40 PFAS and adsorbable organic fluorine (AOF). The EPA has proposed updating Method 1633 (to be called Method 1633A) and adding Method 1621 and Method 1633A to allowable testing methods under the Clean Water Act. These new methods are utilized by states, federal governments and companies to determine PFAS levels at various facilities.

These methods — which were already being used by some States and companies — will become more widely used and could impact potential PFAS liability. The methods are likely to be required in CERCLA investigations (and under state programs), even though the CERCLA hazardous substance listing is limited to PFOS and PFOA .

Actions by Other Federal Agencies on PFAS

FDA Evaluates PFAS in Food and Medical Devices

On March 20, 2024, FDA issued a new import alert that allows FDA to detain certain food imports without physical examination due to PFAS concerns. FDA found that samples from canned clams from China likely are a health concern. However, FDA did not set levels for most chemicals including PFAS in food.

On November 20, 2024, the FDA published a request for information (RFI) on PFAS in seafood with the comment period closing on February 18, 2025. The FDA seeks information on PFAS concentrations in seafood, the environment, processing water and mitigation strategies.

USDA Provides Grants for PFAS Research in Agriculture

The USDA continues to offer grants and funding to study PFAS in the agriculture sector, with the goal of understanding and eventually eliminating PFAS contamination.

GSA Removes PFAS from Federal Contracting

On April 8, 2024, the U.S. General Services Administration (GSA) and EPA jointly directed federal agencies to prioritize purchasing PFAS-free products. Contractors are required to use products certified to ecolabels and cleaners and hand soaps without intentionally added PFAS.

DOD Provides Themselves an Additional Year to Remove PFAS from Firefighting Foam

Section 322(c) of the National Defense Authorization Act (NDAA) for fiscal year 2020 prohibits the Department of Defense (DOD) from using fluorinated aqueous film-forming foam (AFFF) for fighting fires by October 1, 2024. Section 322 also allows DOD to provide itself two one-year waivers from the prohibition.

On August 2, 2024, DOD submitted letters to the house and senate congressional committees advising that DOD decided to use their first one-year waiver on the prohibition to ensure protection of life and safety. DOD explained that although it identified PFAS-free AFFF and have installed it in 1,500 facilities and 6,000 mobile assets, due to the complexity, time-consuming, and supply-constrained nature of the project, DOD is unable to prohibit the use of all fluorinated AFFF by October 1, 2024.