Update—Beyond the Roadmap: Additional PFAS Developments

(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.

EPA Designation of Certain PFAS as RCRA “Hazardous Constituents”
On October 26, 2021, the EPA announced an upcoming rulemaking that would enable the Agency to invoke its authority under RCRA to facilitate the remediation of sites contaminated with certain PFAS. RCRA is the federal statute that regulates hazardous wastes, and EPA’s proposal is to list four PFAS chemicals—PFOA, PFOS, perfluorobutane sulfonic acid (PFBS) and GenX (a PFOA-free alternative used for the synthesis of fluoropolymers, such as Teflon)—as “hazardous constituents” in 40 CFR Part 261, Appendix VIII, pending the collection and analysis of health and safety data.

The rulemaking is significant on several counts. Of most immediate relevance, releases of wastes containing hazardous constituents at treatment, storage and disposal facilities are subject to RCRA corrective action requirements. RCRA corrective action can be onerous compared to other environmental remedial programs in terms of the performance standards that responsible parties must meet, the duration of time necessary to achieve closure and complete post-closure care obligations, and the level of financial assurance that must be retained during the life of a project. In this connection, the announcement of the rule on PFAS designation as a hazardous constituent coincided with another proposed rule announcement that would clarify a longstanding discrepancy in the scope of EPA’s RCRA corrective action authority by tying the program to the more expansive definition of “hazardous waste” at Section 1004(5) of the statute1 as opposed to the definition given in EPA’s implementing regulations.2 This clarification would facilitate EPA’s authority to require the investigation and remediation of sites contaminated by releases of waste containing emerging contaminants, such as PFAS.

Equally important, yet somewhat more removed in terms of timing, designation as a hazardous constituent is a necessary first step to the subsequent classification as a listed hazardous waste. Such classification would depend on the generation and analysis of additional data and would only apply to specific waste streams. The listed waste streams would be subject to the full suite of RCRA’s “cradle-to-grave” regulations regarding hazardous waste generation, management and disposal. Due to the extent of data required to be analyzed in order to reclassify a hazardous constituent as a hazardous waste, a listed hazardous waste designation is not something that realistically would be achieved in the short term, even if the proposed designation of the four PFAS as hazardous constituents were to be finalized expeditiously.

A hazardous waste listing even would have implications beyond RCRA itself. Notably, the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA or “Superfund”) definition of “hazardous substance” includes by reference all RCRA “hazardous wastes.” Thus, assuming that the proposed rule was to be finalized, sites contaminated by releases of wastes containing the four PFAS would fall within the ambit of Superfund and its cost recovery mechanisms.

EPA Technical Review of PFOA and PFOS
On November 16, 2021, the EPA requested that its Science Advisory Board (SAB) review four draft papers and recently accumulated data on the health and environmental impacts caused by these chemicals. The draft papers and data indicate that negative health effects may occur at much lower levels of exposure to PFOA and PFOS than previously understood and that PFOA is a likely carcinogen. Generally speaking, SAB review informs EPA’s establishment of non-binding health advisory levels and enforceable regulatory criteria, such as maximum contaminant levels, for given chemicals.

The information in the papers currently under review suggests that EPA ultimately may seek to regulate these two chemicals in the environment at concentrations below the current 70 parts per trillion (ppt) advisory level that has been in effect since 2016. The 70-ppt advisory level is already orders of magnitude lower than the regulatory criteria that EPA has established for other harmful chemicals, including volatile organic compounds, which are regulated at the level of parts per million or parts per billion. An even lower threshold of regulation would exacerbate the well-known difficulties of PFAS remediation, which is difficult to accomplish due to the particular physical and chemical properties of these chemicals. As such, it could increase the liabilities of parties engaged in cleaning up sites contaminated with these two PFAS.

Steps Toward Federal Regulation of PFAS Air Emissions
The past year has been notable in terms of EPA taking preliminary steps to initiate the regulation of PFAS emissions under the Clean Air Act, and recent developments stand to advance that objective. Indeed, the subject of PFAS air emissions gained prominence in 2020 due to media coverage of the emissions problems at the waste incinerator in the Cohoes, New York.

In 2021, EPA issued the first air emissions test method (OTM-45) designed specifically to sample for PFAS material. This action represents an important step toward the Roadmap’s calls for the development of a technical foundation for regulating PFAS emissions into the ambient air. As explained in an earlier Pillsbury alert, the Roadmap further raises the possibility of EPA designating certain PFAS as Hazardous Air Pollutants (HAPs) under the Clean Air Act, a move that would result in emission limits for PFAS being written into air permits and addressed in state implementation plans.3

Although the Roadmap raises the issue of a HAP designation only as an option available to EPA, pending federal legislation stands to provide a firm legal mandate. Specifically, the Prevent Release of Toxics Emissions, Contamination, and Transfer Act, or Protect Actwhich was introduced in the U.S. Senate on October 19, 2021 (S.B. 2994), contains provisions that would require EPA to add PFOS, PFOA, PFBS and GenX to the list of Hazardous Air Pollutants under Section 112 of the Clean Air Act. The bill has been referred to the Senate Committee on Environment and Public Works, where it is currently under review.

Implications of Federal Court Order on Downstream PFAS Liabilities
In September 2021, the U.S. District Court for the Northern District of Georgia adjudicating the Jarrod Johnson v. 3M, et al., No. 4:20-cv-8-AT case ruled that primary manufacturers of PFAS are not liable under Georgia’s law of negligence for PFAS releases caused by downstream processors and disposal contractors. The case involved a class action lawsuit in which the plaintiffs alleged that carpet manufacturers in Dalton, Ga., and their chemical suppliers caused PFAS contamination in surrounding waterways and potable aquifers. (PFAS are used in the carpet industry for their ability to repel oil and water and for their heat- and chemical-resistant properties). The plaintiffs’ claims arose under the Clean Water Act and state common law theories of negligence, negligence per se, and nuisance. The relevant order was issued in response to the defendants’ motion to dismiss the claims, which the court denied on all counts, except with respect to the negligence claims brought against the primary PFAS manufacturers.

In dismissing these negligence claims, the court explained that the chemical manufacturers could not have foreseen how their products would be used and ultimately disposed of in the carpet manufacturing process. As such, the chemical manufacturers could not have acted negligently with respect to the discharge of contaminated wastewater into the waterways near Dalton.

While the court order doubtlessly came as welcome news to primary PFAS manufacturers such as Dupont and 3M, it may be an ominous indication of things to come for the broader class of companies involved in the secondary manufacture and processing of PFAS products, especially within jurisdictions that apply the law of negligence similarly to Georgia on the relevant details.4 To date, such companies have largely evaded large liabilities in toxic tort claims involving PFAS contamination—with Wolverine Worldwide being a notable exception—as plaintiffs have focused their efforts on primary manufacturers. Now, assuming that the Northern District of Georgia’s ruling is not successfully challenged and will be followed in other federal jurisdictions, it provides a clear incentive for prospective plaintiffs to pursue secondary manufacturers for negligence-related claims.5

State Attorneys General Urge Congress to Pass the PFAS Action Act
In April 2021, the House introduced the PFAS Action Act of 2021 (H.R. 2467), a comprehensive bill requiring EPA to take several significant regulatory actions relating to PFAS. Passed by the House with bipartisan support in July 2021, the bill has since been stalled in the Senate Committee on Environment and Public Works.

In November, attorneys general of eighteen states and the District of Columbia6 submitted a joint letter to the Committee urging passage of the bill. The letter emphasized seven legislative priorities in passing the bill: (1) designating PFAS as a “hazardous substances” under CERCLA; (2) designating PFAS as HAPs under the Clean Air Act and prohibiting PFAS incineration; (3) establishing national primary drinking water regulations for PFAS and regulating PFAS discharges; (4) providing funding to drinking water suppliers for PFAS remediation in drinking water supplies; (5) providing funding to states for PFAS contamination remediation; (6) making PFAS medical screenings more widely available; and (7) prohibiting the use and limiting the storage of firefighting foam containing PFAS at federal facilities.

Although the attorneys general acknowledge that some of these priorities are in the queue to be addressed by EPA, as reflected in the PFAS Strategic Roadmap and other recent activities, they urge congressional action to expedite these regulatory changes, citing “[t]he serious public health threats posed by PFAS contamination and the significant budgetary impacts incurred by our states….” Legislation is needed, they state, to ensure that the urgent need to address PFAS is met timely and with sufficient appropriations. If passed, the already increased regulatory activity around PFAS could become even more expedited, overriding the self-imposed timelines EPA has established for itself.

Taken together with EPA’s recent issuance of its PFAS Strategic Roadmap, the developments discussed here bespeak the dynamic state of PFAS regulation and a potential widening of PFAS-related liabilities. Businesses with potential nexuses to PFAS may wish to consider ways in which they can stay abreast of the rapidly changing legal landscape and both proactively assess and, perhaps, mitigate their PFAS-related liabilities. Pillsbury environmental attorneys have extensive experience dealing with PFAS, including assisting companies respond to governmental information requests and subpoenas, developing PFAS-specific sampling plans, and helping companies obtain regulatory approvals for PFAS.

1 “[A]a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed…” 42 U.S.C. §6903(5)).
2 “A solid waste, as defined in § 261.2, is a hazardous waste if: (1) It is not excluded from regulation as a hazardous waste under § 261.4(b); and (2) It meets any of the following criteria 40 C.F.R. § 261.3: (i) It exhibits any of the characteristics of hazardous waste… (ii) It is listed in subpart D of this part… (iv) It is a mixture of solid waste and one or more hazardous wastes listed in subpart D of this part….” 40 C.F.R. § 261.3(a)).
3 Only three states have proposed or final PFAS air emissions: Michigan (for PFOA and PFAS), New Hampshire (for ammonium perfluorooctanoic, which can disassociate into PFOA) and New York (proposed for PFOA).
4 Given variations in state laws, the precedential value of a federal district court order in a case applying Georgia law would be less in a jurisdiction that espoused different elements or standards for negligence claims.
5 The U.S. District Court applies state law, which may vary slightly by jurisdiction.
6 New York, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Washington, and Wisconsin.