Three notable settlements from June 2023 highlight the immense scale of liability for primary manufacturers of per- and polyfluoroalkyl substances (PFAS).
Posted
PFAS and the Challenge of Cleaning Up “Forever”
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.
Posted
EPA Continues the Beat with an Advanced Notice of Proposed Rulemaking for Additional CERCLA Hazardous Substance Designations for PFAS
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.)
Posted
Concerns Over PFAS Contribute to New Federal Legislation Expanding FDA’s Authority Over Cosmetics
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.
Posted
Update: Maine and Massachusetts Consider PFAS Legislation
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.
Posted
EPA Proposes Stringent Regulation of PFAS in Drinking Water
On March 14, 2023, the EPA proposed a National Primary Drinking Water Regulation under the Safe Drinking Water Act to establish Maximum Contaminant Levels (MCLs) for six per- and polyfluoroalkyl substances (PFAS):
- Perfluorooctanoic acid (PFOA)
- Perfluorooctane sulfonic acid (PFOS)
- Perfluorononanoic acid (PFNA)
- Hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX)
- Perfluorohexane sulfonic acid (PFHxS)
- Perfluorobutane sulfonic acid (PFBS).
The EPA anticipates finalizing the regulation by the end of 2023. Although the science around PFAS is still evolving, the EPA has touted the proposed rule as an essential measure that “will prevent thousands of deaths and reduce tens of thousands of serious PFAS-attributable illnesses.”
Posted
North Carolina, California, Wisconsin and Illinois Sue Companies over PFAS “Forever Chemicals” Contamination
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.
Posted
Numerous States Begin to Impose Notification Requirements and Prohibitions on Products Containing “Intentionally Added” PFAS
In all, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington have placed or soon will be placing prohibitions on the distribution of per- and polyfluoroalkyl substances (PFAS) in food packaging containers, cookware and, in other cases, a wide range of products under the authority of consumer protection laws. Companies across the supply chain will be impacted by these regulations. Industry has criticized the state laws as overreaching, particularly considering the inability of certain state agencies to enforce these laws effectively.
Posted
Industry Awaits as the TSCA PFAS Reporting Rule Looms
Per- and polyfluoroalkyl substances (PFAS) continue to garner regulatory attention at the federal and state levels. One of the regulatory milestones set forth in the Biden EPA’s 2021 PFAS Strategic Roadmap was the finalization and implementation of a one-time reporting rule that the Agency had proposed in June 2021 under TSCA Section 8(a)(7). This rule will require manufacturers, including importers, of PFAS to provide EPA with certain information regarding their introduction of PFAS into commerce, as well as on the resulting exposure to and downstream uses of such PFAS. Although the public comment period on this rule has long since closed, we are only months away from the targeted date by which EPA has promised to publish the final regulation. Specifically, EPA must promulgate the final rule by January 1, 2023. Thereafter, subject businesses must submit the requisite information to EPA within six months following the effective date of the final rule.
Posted
Proposed Rule to Designate Two PFAS Chemicals as Hazardous Substances Stands to Up the Ante for Site Remediation
On Friday, August 26, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of a long-awaited proposed rule to designate two of the most-studied per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In an accompanying statement, EPA indicated that the proposed rule will be published in the Federal Register within the next few weeks. That publication will commence a 60-day public comment period. EPA appears to be targeting final rule promulgation by Summer 2023.