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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.

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On June 15, 2022, the EPA released drinking water health advisory levels for four per- and polyfluoroalkyl substances (PFAS): PFOA, PFOS, PFBS and GenX. The announcement reflects the Biden administration’s continued push to regulate PFAS.

In requesting information from its Scientific Advisory Board (SAB) on PFOA and PFOS last fall, the EPA signaled that it would seek to regulate these two chemicals at concentrations below the existing advisory levels of 70 parts per trillion (ppt). The revised advisory levels for these two substances confirm that suspicion and present new technical challenges in PFAS detection and treatment, as do the new advisory levels for PFBS and GenX.

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(Note: This update involves recent developments on a topic covered in a December 2021 client alert.)

As advised in part by the Biden Administration, developments in the regulation of per- and polyfluoroalkyl substances (PFAS) continue to unfold. Not only did the EPA release its PFAS Strategic Roadmap in October, but it has proposed a potentially significant rulemaking under the Resource Conservation and Recovery Act, initiated a scientific review of the adequacy of its current health advisory level for the two most studied PFAS—perfluorooctanoic (PFOA) acid and perfluorooctane sulfonic acid (PFOS)—and taken steps toward establishing a technical foundation for regulating PFAS air emissions under the Clean Air Act. (Additional impetus for the last action derives from pending congressional legislation.) Additionally, a recent federal court decision in the Northern District of Georgia stands to increase the liability exposure of secondary manufacturers and processors of PFAS products in connection with toxic tort suits involving negligence claims. Meanwhile, state attorneys general are urging continued congressional effort to pass a comprehensive PFAS bill that would expedite and fund several of the PFAS regulatory actions contemplated by EPA.

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Federal efforts to regulate per- and polyfluoroalkyl substances (PFAS) have continued in recent months. Most notably, on October 21, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) released its PFAS Strategic Roadmap. This document promises to establish a comprehensive, whole-of-agency approach to regulating PFAS, by building off the Trump EPA’s 2019 PFAS Action Plan and related federal initiatives. The Roadmap reflects EPA’s intent to regulate a broader range of activities than those contemplated in the 2019 Action Plan, as well as to accelerate the implementation of activities identified in the earlier Agency document.

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In recent years, per- and polyfluoroalkyl substances or, as they are more commonly known, “PFAS,” have been the subject of high-profile litigation and heightened scrutiny by federal and state governments as concerns rise about the risks they present to human health and the environment. This trend is of significant interest to the specialty chemical industry, as well as to manufacturers, importers, and end-users of various chemical products, and treated equipment and parts, because PFAS embodies a vast array of synthetic chemicals—over 7,000, according to some sources—that may be unknowingly present in a company’s products or operations. Moreover, because PFAS regulation is a relatively recent phenomenon, many companies may not know or fully appreciate their nexus to PFAS.

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The term “phthalate” denotes a class of chemicals that have been used since the 1920s to improve the flexibility and durability of plastic. Accordingly, phthalates can be found in hundreds, if not thousands, of everyday products, ranging from food packaging to toys, medical devices, construction materials, textiles, cosmetics, soaps, and fragrances. Their ubiquity has led some to nickname them the “Everywhere Chemical.”

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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.

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The Implications on EPCRA Reporting
The National Defense Authorization Act for Fiscal Year 2020 (NDAA) required that the U.S. Environmental Protection Agency (EPA) add certain poly- and perfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI). EPA’s final rule adding these PFAS to the TRI toxic chemicals list took effect on June 22, 2020. This marks the implementation of another important facet of EPA’s February 2019 PFAS Action Plan, which announced the agency’s intent to address the human health and economic impacts from PFAS in the environment.

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On February 20, 2020, the U.S. Environmental Protection Agency (EPA or the Agency) took another step toward tightening its regulation of a wide range of several thousand synthetic chemicals known as perfluoroalkyl substances (PFAS) by issuing a pre-publication notice of a proposed regulatory determination to develop drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). PFOA and PFOS are among the two most-studied PFAS chemicals, and although they have been largely phased out in the United States, they remain a focus of regulatory attention due to their persistent, bioaccumulative and toxic properties, which also are shared by other PFAS. PFAS, as a whole, have come under increasing regulatory scrutiny due to recent high-profile litigation involving companies such as 3M and Wolverine Worldwide.

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The U.S. Environmental Protection Agency (EPA) has taken another step toward regulating perfluoroalkyl substances (PFAS). Specifically, on February 20, 2020, the EPA issued a pre-publication version of a Supplemental Proposed Rule that could affect a host of businesses that traditionally have not had to concern themselves with Toxic Substances Control Act (TSCA) compliance and enforcement. The proposal concerns a subcategory of PFAS known as “Long-Chain Perfluoroalkyl Carboxylates and Perfluoroalkyl Sulfonates” (collectively, LCPFAC) under TSCA. Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), two of the most problematic PFAS substances, are among the chemicals that would be regulated.

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