Given the ubiquity of per- and polyfluoroalkyl substances (PFAS), new and different aspects of liability continue to trend. While many of the lawsuits involve allegations of environmental contamination or personal injury resulting from the impairment of public water systems, the landscape has expanded to other areas.
On August 17, 2023, the U.S. Environmental Protection Agency (EPA) released preliminary results from the fifth Unregulated Contaminant Monitoring Rule (UCMR) under Section 1445(a)(2) of the Safe Drinking Water Act (SDWA). The UCMR provides a mechanism for the EPA to collect data regarding impacts to public water systems from “emerging contaminants,” for which the SDWA does not otherwise require sampling and mitigation. The purpose of the UCMR is to allow the agency to collect data regarding the scope and magnitude of impacts to potable water supplies that can serve as the basis for science-based decisions regarding future regulations. Notably, the EPA has indicated that it will interpret the data obtained from the fifth UCMR—or UCMR 5, as it is called—with an eye toward environmental justice.
On June 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) for 18 chemicals derived from the recycling of plastic wastes. 88 Fed. Reg. 39804 (2023). The chemicals were the subjects of premanufacture notifications (PMNs) submitted in 2015 and 2019 and of subsequent consent orders issued by the EPA under the authority of TSCA 5(e) and effective on August 25, 2022. The chemicals include naphtha blends and other pyrolysis oils.
On September 14, join Reza Zarghamee and Aimee Ghosh for a free, one-hour webinar as they cover U.S. regulatory/state developments related to PFAS, the importance of insurance as a possible tool for offsetting PFAS-related liabilities, and the unorthodox climate surrounding federal legislation regarding the chemicals.
In April 2023, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on the designation of seven PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This NPRM followed a proposed rule released in August 2022, which would designate the two most ubiquitous PFAS—PFOA and PFOS—as hazardous substances.
From a stream of legal challenges, to ever-expanding regulations on things like cosmetics and drinking water, PFAS are the “forever chemicals” keeping companies and consumers on high alert. While industries scramble to remove the synthetic compounds from products, scientists are researching new techniques for scrubbing PFAS from the environment. There is money to be had for those who can find a more streamlined method of purging the substances—the U.S. Army Corps of Engineers has an $800 million contract on the table for the handling, destruction and replacement of PFAS-laden fire-fighting foam—leaving technology companies racing to create solutions. The three main PFAS cleaning techniques currently relied upon can be very effective but are also costly and may leave questionable byproducts in their wake.
On April 13, 2023, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on seven potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (See Addressing PFAS in the Environment, 88 Fed. Reg. 22399, Apr. 13, 2023.)
On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act of 2022 (MoCRA) into law. (See Consolidated Appropriations Act, 2023, Pub. L. No: 117-328, § 3501-06.) MoCRA substantially expands the authority of the Food and Drug Administration (FDA) to promulgate new regulations over cosmetics and initiate enforcement against manufacturers and distributors of cosmetic products that present health risks. Most MoCRA provisions, including those dealing with facility registration and product listing, take effect on December 29, 2023, and existing facilities will have to register and comply with its product listing requirements as of this date.
Maine and Massachusetts have both joined the expanding number of states restricting or considering the restriction of PFAS-containing products.
Maine Regulators Propose Rules Providing Guidance on Newly Enacted Ban
The Maine Department of Environmental Protection has proposed a new rule intended to establish, in greater detail, the procedures necessary for compliance with Public Law c. 477, entitled “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” As discussed in a previous post, this law, which went into effect January 1, 2023, imposes reporting requirements for consumer products with intentionally added per- and polyfluoroalkyl substances (PFAS) and phases out products containing PFAS beginning with carpets, rugs and fabric treatments. The proposed regulation largely echoes the language of the statute itself but does provide new definitions material to the statute’s “currently unavailable use” exemption and elaborates on the required content of the statutorily prescribed notices regarding PFAS-containing products. A public hearing is being held on the proposed rule on April 20, 2023, with comments due May 19, 2023.
Parties interested in influencing or narrowing the scope of the Maine PFAS law may wish to consider the benefits of submitting public comments by this deadline.