On July 24, 2024, Environmental Health Perspectives (EHP) published a study relating to the presence of per- and polyfluoroalkyl substances (PFAS) in pesticide products. PFAS are a class of manmade chemicals used for decades in industrial/consumer products because of properties like resistance to heat, fire, stains, and water. PFAS have been linked to serious health concerns, such as cancer, and have been detected in water, soil, air, food, household and workplace materials, and human blood across the world.

The study concludes that nearly 25% of all U.S. pesticide active ingredients are organofluorines (organic compounds that contain a carbon–fluorine bond) and 14% are PFAS. PFAS are a type of organofluorine or fluorinated molecule. For “active” ingredients approved by EPA within the last 10 years, the study finds that 61% are organofluorines and 30% are PFAS. For “inert” pesticide ingredients approved by EPA, the study finds a seemingly limited presence of PFAS but notes there is a significant lack of information on this issue. Furthermore, the study finds that leaching of PFAS from fluorinated containers into pesticide products is a significant contributor to the presence of PFAS in pesticides. Study, p. 1.

In light of the foregoing, the authors of the study make several recommendations, including: (1) more stringent government agency risk assessment for fluorinated pesticides; (2) transparent disclosure of inert ingredients on pesticide labels; (3) a phase-out of post-mold fluorination of plastic containers; and (4) environmental monitoring and biomonitoring of all PFAS pesticides to gather timely data on their bioaccumulation and potential impact on human and ecosystem health. Id.

The Study’s Findings

The authors state they designed their study to analyze the various ways pesticide products can include PFAS, the extent of PFAS contamination in pesticide products, and the associated implications of PFAS in pesticide products on human health and the environment. Id. at p. 2.

The authors studied 471 unique and conventional active ingredients for pesticides registered by EPA and found that 23% of these ingredients are organofluorines and 14% meet the Organisation for Economic Cooperation and Development’s (OECD) definition for PFAS. OECD defines PFAS as “fluorinated substances that contain at least one fully fluorinated methyl or methylene carbon atom (without any H/Cl/Br/I atom attached to it).” A New OECD Definition for PFAS. This definition includes almost any chemical with at least one perfluorinated methyl or perfluorinated methylene group. The authors also studied 54 conventional active ingredients approved in the last 10 years, finding that 61% of these ingredients are organofluorines and 30% meet OECD’s definition of PFAS. Study, p. 3.

Through a public records request to EPA, the authors of the study learned that EPA previously identified 24 approved inert ingredients as PFAS or suspected PFAS. The authors found that EPA cancelled 12 of these ingredient approvals and that one ingredient did not have any carbon-fluorine bonds, concluding that 11 currently approved inert pesticide ingredients contain organofluorines. Of these 11 organofluorine inert ingredients, the authors found that 8 meet the OECD definition of PFAS. Id. at p. 4.

The study also analyzes the presence of PFAS in pesticides through leaching from fluorinated high-density polyethylene (HDPE) containers. The study notes that EPA found that fluorinated HDPE containers can leach perfluorinated carboxylic acids (PFCAs), a subset of PFAS, into pesticides stored in such containers. The authors conclude that roughly 20% to 30% of all hard plastic containers used in the agricultural sector are fluorinated. Id. at p. 6.

The authors also studied the consequences of PFAS in pesticides, finding that: (1) negative impacts to the immune system is one of the most significant adverse effects to humans from PFAS exposure; (2) PFAS is highly stable in the environment and will persist in the environment essentially forever; (3) PFAS active ingredients are present throughout the country in streams, lakes, and rivers; and (4) PFAS active ingredients can contaminate drinking water. Id. at pp. 6-10.

The Study’s Recommendations

In light of its findings, the study recommends the following:

  1. The practice of post-mold fluorination of plastic containers should be discontinued and substituted with other options that do not use fluorine or an in-mold fluorination process found not to produce PFAS;
  • The U.S. and other countries should require disclosure of all pesticide ingredients on pesticide labels and safety data sheets (SDSs);
  • EPA should issue a data call-in for any pesticide ingredients that do not have immunotoxicity studies;
  • All PFAS pesticides should be evaluated for environmental persistence, and the most persistent PFAS pesticides should be mitigated/replaced;
  • The U.S. should expand environmental monitoring and biomonitoring programs to include all PFAS pesticides;
  • EPA should assess the cumulative impacts from fluorinated degradants common to active ingredients and how fluorinated pesticides can impact total fluorine in the environment and food. Id. at p. 10.

This study highlights the growing public awareness and concern regarding the presence of PFAS in pesticide products and the associated impacts to human health and the environment. For further information regarding PFAS in pesticides, contact a member of Taft’s Environmental group.  

On July 22, 2024, the Center for Food Safety and several other entities submitted a petition to EPA relating to the potential presence of per- and polyfluoroalkyl substances (PFAS) in pesticide products registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The petition cites to studies and reports showing the presence of PFAS in registered pesticide products, EPA’s finding that PFAS can leach into pesticide products from fluorinated pesticide containers, and EPA’s acknowledgement of human health and environmental dangers associated with PFAS exposure. The petition requests that EPA take a broad range of actions to address the potential presence of PFAS in FIFRA-registered products, their active/inert ingredients, and fluorinated containers. The requested relief includes cancellation and/or suspension of existing pesticide ingredients alleged to be PFAS, updating regulatory definitions to more specifically define/address PFAS content, and expanded consideration of PFAS impacts during the pesticide registration process.

Why are the Petitioners Focused on PFAS?

PFAS are a group of manmade chemicals that have been used for decades in industrial/consumer products because of properties like resistance to heat, fire, stains, and water. However, PFAS have been linked to serious health concerns, such as cancer, and have been detected in water, soil, air, food, household and workplace materials, and human blood across the world.

Petitioners allege that EPA has approved “hundreds” of pesticide ingredients that qualify as PFAS, despite acknowledging that PFAS is a public health and environmental concern. Center for Food Safety Demands EPA Act to Protect Public Health and Environment from PFAS Chemicals in Pesticides. Petitioners also allege that EPA previously identified issues with leaching of PFAS chemicals from fluorinated high-density polyethylene (HDPE) containers into the pesticides packaged in those containers. Petition, p. 77.

What Actions Do Petitioners Request from EPA?

To address concerns about the alleged presence of PFAS in pesticides, petitioners request EPA take the following actions:

  1. Cancel registrations for all pesticide products containing active/inert ingredients that qualify as PFAS pursuant to FIFRA § 136d(b), in accordance with the United States Geological Survey (USGS) definition for PFAS (found at 15 U.S.C. § 8931(2)(B), and state-based definitions of PFAS, and refrain from approving future registrations that meet these definitions.
  1. Suspend registrations for all pesticide products containing active/inert ingredients that qualify as PFAS under 15 U.S.C. § 8931(2)(B), pending completion of cancellation proceedings under FIFRA.
  1. Amend 40 CFR § 158.300 (Product Chemistry Definitions) to define PFAS as “a class of fluorinated organic chemicals that contain at least one fully fluorinated carbon atom.”
  1. Amend 40 CFR § 165.25 (Nonrefillable Container Standards) to prohibit use of fluorinated HDPE, polyethylene, and polypropylene containers. Petitioners allege that these storage containers contain PFAS as a result of the fluorination process and leach those PFAS into pesticides. Id. at pp. 4-10.

As alternatives to petitioners’ requests in (1) and (2) above, petitioners request that EPA:

  1. Amend 40 CFR § 152.112 to explicitly require EPA to consider the long-term impacts of PFAS chemicals on human health and the environment.
  1. Amend 40 CFR § 158.630(d) to require registrants to submit data on the persistence of their PFAS ingredients in the environment as well as other toxicity data specific to PFAS chemicals.
  1. Create a Guidance Document for PFAS in Pesticides that (i) recommends reporting any PFAS contamination in pesticides to EPA as part of FIFRA reporting obligations, (ii) specifies that EPA finds PFAS contamination “toxicologically significant”, requiring registrants to report contamination to EPA immediately, and (iii) provides guidance to risk assessors for evaluating the potential risk of PFAS in pesticides to the environment and public health. Id.

This petition highlights growing public awareness and concern of PFAS exposure and associated health risks from pesticide use. For further information on PFAS and EPA pesticide regulations, contact a member of Taft’s Environmental group.

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On August 8, 2024, the Coosa River Basin Initiative (CRBI), an environmental organization based in Georgia,  and the City of Calhoun, Georgia (the City), announced that they had reached a proposed settlement in a citizen suit case involving alleged violations of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) focused solely on the City’s land application of PFAS-containing biosolids.

CRBI, through its counsel at Southern Environmental Law Center, filed a complaint in the U.S. District Court for the Northern District of Georgia on March 7, 2024, against the City and the owner of property used for land application of the City’s biosolids. The Complaint included the following alleged CWA violations:

  • The City’s land application of PFAS-contaminated biosolids onto land that was hydrologically connected to navigable waters through groundwater was the “functional equivalent” of discharging PFAS directly into navigable waters without an NPDES permit;
  • That PFAS are a toxic pollutant and that the City, therefore, violated its existing NPDES permit by failing to “take all reasonable steps to minimize or prevent any discharge or sludge disposal which might adversely affect human health or the environment,” provide notice to downstream users and take reasonable steps to prevent injury when a toxic substance has been discharged, and enforce noncompliance with any applicable pretreatment standard or requirement.
Continue Reading Settlement Reached in Biosolids Focused PFAS Litigation
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On May 1, 2024, Colorado became the thirteenth state to pass legislation banning per- and polyfluoroalkyl substances, commonly referred to as PFAS. The move comes shortly after PFAS received exceptional public attention when EPA finalized its first-ever national drinking water standards for six PFAS this past April. The release of these new standards now requires states and industry to act quickly and strategically on plans to restrict PFAS from water systems. For Colorado, multiple areas across the state detected PFAS in the water beyond EPA limits when EPA required water systems across the nation to test for dozens of PFAS last year.

Continue Reading Colorado Bans Forever Chemicals After EPA Sets New PFAS Water Standards

Since EPA announced a Final Rule designating certain per- and polyfluoroalkyl substances (PFAS) as hazardous substances, there has been ample national attention on what the legal and regulatory landscape would look like in restricting these dangerous substances. Various states have taken independent action to curtail the significant health and environmental risks posed by PFAS. Recently, Vermont moved to further restrict the prevalence of PFAS in products sold in their state.

Continue Reading Vermont Legislature Takes Action to Limit PFAS in Common Commercial Products

The State of Michigan recently took another step aimed at protecting the environment and public health from the impact of per- and polyfluoroalkyl substances (PFAS). Last week, State Rep. Penelope Tsernoglou (D-East Lansing) and Majority Floor Leader Abraham Aiyash (D-Hamtramck) introduced The Hazardous Products Act under House Bill 5657 (the “Legislation”), which would prohibit, the sale and distribution of products containing intentionally added PFAS by Jan. 1, 2027, including, without limitation, cookware, cosmetics, and children’s products. The Legislation would also prohibit the discharge or use of PFAS-containing class A or class B firefighting foam by Jan. 1, 2027. The Legislation has roughly 20 co-sponsors and was referred to the Michigan House’s Natural Resources Committee.

If enacted, the Legislation would ban the sale of products that contain intentionally added PFAS. The Legislation defines “PFAS” as a “perfluoroalkyl or polyfluoroalkyl substance that includes any member of the class of fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.” Under the Legislation, PFAS is intentionally added if the PFAS added by a manufacturer “has a functional or technical effect on a product, or a component thereof, or the manufacturing process. Intentionally added PFAS includes any PFAS that is a component or a breakdown product of an intentionally added chemical that has a functional or technical effect on the product, or a component thereof, or the manufacturing process.”

Continue Reading Michigan Takes Step to Limit PFAS Through Hazardous Products Act
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On April 10, 2024, U.S. EPA announced a National Primary Drinking Water Regulation (NPDWR) establishing legally enforceable Maximum Contaminant Levels (MCLs) and non-enforceable Maximum Contaminant Level Goals (MCLGs) for six per- and polyfluoroalkyl substances (PFAS) in drinking water under the Safe Drinking Water Act (SDWA).

The final rule requires public water systems to: (1) complete initial monitoring for these PFAS by 2027 and provide public notice of initial monitoring results beginning in 2027; (2) implement solutions by 2029 to reduce these PFAS if drinking water levels exceed the MCLs; and (3) starting in 2029, take action to reduce PFAS in response to violations of the MCLs and to provide public notice of any such violations. EPA PFAS NPDWR Summary.

A pre-publication version of EPA’s final rule is available here.

Continue Reading US EPA Finalizes New National Drinking Water Standards for Six PFAS

On April 19, 2024, the U.S. Environmental Protection Agency (EPA) announced the pending publication of a final rule designating two widely used per-and polyfluoroalkyl substances (PFAS) chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

This announcement comes approximately a year and a half after EPA initially proposed the designation of PFOA and PFOS as CERCLA hazardous substances via EPA’s publication of its proposed rule in late 2022.

Continue Reading EPA Announces Final Rule Designating PFOA and PFOS as Hazardous Substances Under CERCLA

The coalition of law firms, including Taft, that have been working together for over a decade to lead litigation and secure settlements on behalf of those harmed by PFAS contamination, have announced another major settlement to address this “forever chemicals” contamination in U.S. drinking water supplies in the context of the ongoing multi-district litigation to address claims for damage from PFAS released from aqueous film-forming firefighting foam (the AFFF MDL). This latest settlement, reached with Tyco Fire Products LP (Tyco), a wholly-owned, indirect subsidiary of Johnson Controls, will provide an additional $750 million in settlement benefits, adding to the earlier announced settlements with 3M and DuPont-related companies, valued at up to over $13.5 billion for U.S. drinking water providers. Read more here.

On April 10, 2024, the U.S. EPA released its federally enforceable drinking water limits for certain toxic PFAS “forever chemicals” under the federal Safe Drinking Water Act. The final rule will “reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.”

Taft partner, author, and advocate Rob Bilott stated, “Today we can celebrate a huge victory for public health in this country. The U.S. EPA is moving forward to protect drinking water across the United States by adopting federally enforceable limits on some of the most toxic, persistent, and bioaccumulative chemicals ever found in our nation’s drinking water supply.” Read more here.

The final standard will be announced today at an event in Fayetteville, NC.