Yet another new horizon looms for PFAS litigation. Numerous PFAS claims, like those involving deceptive trade practices due to PFAS in food packaging, seldom withstand a motion to dismiss, but the emergence of a novel liability theory could expose corporations to PFAS litigation of a different sort.
Abstract: This article provides overviews the status of PFAS regulation in the United States. Given the ubiquity of PFAS in commercial products, the expectation is that the United States’ 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. Indeed, it is to be understood that many businesses, including those that have never knowingly used PFAS in their operations, may have a nexus to PFAS without knowing that they do. This article briefly describes PFAS, the types of products that include it, the recent wave of litigation involving PFAS contamination, which has involved settlements above $10 billion, and developments in federal and state regulation of these chemicals. This is followed by a brief discussion of 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.
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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.
On October 2023, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register modifying reporting requirements for per- and polyfluoroalkyl substances (PFAS) in the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). (See 88 Fed. Reg. 74,360 (October 31, 2023).) Specifically, EPA proposed that PFAS compounds on the TRI should be classified as “chemicals of special concern.” Such classification would eliminate the availability of the de minimis exemption to TRI reporting (also known as Section 313 reporting) for both manufacturers and suppliers. It would also require the use of a specific reporting form for the listed PFAS substances (a Form A instead of a Form R).
On September 20, 2023, the Consumer Product Safety Commission (CPSC) published a Federal Register Notice to request information on PFAS from “all stakeholders such as consumers, manufacturers and importers, government agencies, non-governmental organizations, and researchers.” Written responses are due by November 20, 2023.
On November 15, 2023, join PFAS Insurance Recovery Taskforce members Tamara Bruno and Scott Greenspan for “PFAS Insurance Coverage: The Policyholder’s Roadmap to Recovery.”
During this PLI event, Tamara and Scott will explore the most significant court decisions on PFAS coverage issues, provide a guide to registrants on the major coverage issues raised by PFAS claims under legacy and current insurance policies, and offer strategies to policyholders for insurance recovery of PFAS claims.
To register, click here.
On September 28, 2023, the U.S. Environmental Protection Agency (EPA) finalized the long-awaited one-time reporting rule for per- and polyfluoroalkyl substances (PFAS) that the Agency had proposed in June 2021 under Section 8(a)(7) of the Toxic Substances Control Act (TSCA). The finalization of this rule is one of the regulatory milestones set forth in the Biden EPA’s 2021 PFAS Strategic Roadmap. This rule will require businesses to provide the EPA information regarding their manufacture or importation of subject PFAS, as well as, most importantly, articles including covered PFAS, since January 1, 2011.
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.
