EPA Substantially Expands Inclusion of PFAS Chemicals in Final List of Contaminants for Regulatory Consideration

November 2, 2022

Today, the U.S. Environmental Protection Agency (EPA) published the Final Fifth Drinking Water Contaminant Candidate List (CCL 5). The CCL is a list of known or anticipated drinking water contaminants, not currently subject to EPA regulations, that may require future control. The Safe Drinking Water Act (SDWA), as amended in 1996, requires the EPA to publish the CCL every five years. The latest update includes a substantial expansion of per- and polyfluoroalkyl substances (PFAS), a significant first step in evaluating drinking water contaminants for SDWA regulation.

What are PFAS?

PFAS are a variety of manufactured chemicals used in industry and consumer products. Many PFAS have beneficial qualities like being water, oil, or heat resistant, which makes them ideal for food packaging, water or stain-resistant fabrics, fire extinguishing foams, non-stick cookware, cosmetics, and more. A common characteristic is that PFAS break down slowly and can accumulate in people, animals, and the environment over time. Although the long-term health effects of PFAS are unknown, research indicates the chemicals are potentially toxic. Exposure to PFAS may lead to adverse health outcomes like developmental delays, behavioral changes, reproductive harm, and an increased risk of some cancers.

Recent developments

Since 2012, the California Environmental Protection Agency (CalEPA) has coordinated with the US EPA and other governmental agencies regarding PFAS concerns. On August 26, 2022, the US EPA proposed designating the two most common PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as Hazardous Substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund. The U.S. EPA’s proposed rule would, among other things, require entities to report releases of PFOA and PFOS exceeding the reportable quantity and provide a significant new avenue for expensive multi-party litigation involving alleged contamination.

In California, the Office of Environmental Health Hazard Assessment (OEHHA) has added several PFAS to the list of chemicals known to the State of California to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). Other California agencies looking to monitor or regulate PFAS include the State Water Resources Control Board and the Department of Toxic Substances Control. Most recently, California Governor Gavin Newsom signed California bills AB 1817 and AB 2771, which will restrict PFAS in clothing, textiles, and cosmetics beginning January 1, 2025.

How Hartman King PC Can Help

Recent interest in PFAS by government entities and environmental advocacy groups has resulted in increased regulatory enforcement and environmental and tort lawsuits. If you are subject to litigation or need advice concerning regulatory compliance and cleanup, the Top Environmental Lawyers at Hartman King PC can help. We actively represent numerous clients in litigation, permitting, compliance, and enforcement defense matters involving PFAS and other contaminants, in addition to real estate transactions involving contaminated property.

For more information on the US EPA’s Final Fifth Drinking Water Contaminant Candidate List (CCL5), click here.

For more information on our environmental law services, please get in touch with us at: [email protected].

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