The risks associated with PFAS-containing materials are expanding into new areas, as litigation and regulatory enforcement actions continue to rise. Recent trends suggest that employers who provide fire protection gear to their employees and contractors may find themselves facing potential liabilities.
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.
In the last eight months, the attorneys general of North Carolina, California, Wisconsin and Illinois have sued various primary manufacturers of per- and polyfluoroalkyl substances (PFAS), as well as over a dozen secondary manufacturers of PFAS-containing products. Each lawsuit alleges that the manufacture and distribution of PFAS and PFAS-containing products has led to widespread environmental contamination and harmful exposure.
Given the ubiquity of PFAS in commercial products, the expectation is that U.S. regulation of PFAS and liability risks associated with PFAS will be of interest to a wide array of Japanese businesses, including specialty chemical companies, industrial manufacturers, oil and gas operations, and trading companies. This below article briefly describes PFAS, the types of products that include it, the recent wave of litigation involving PFAS contamination, which has involved settlements approaching $1B, and developments in the federal and state regulation of these tenacious chemicals. We then discuss some specific scenarios in which these developments may affect Japanese corporations. The article ends with the recommendation that businesses that manufacture, distribute, use or dispose of PFAS or products containing PFAS should stay abreast of these developments and develop proactive strategies to minimize their potential liability.