For several years, many in the legal and environmental communities have wondered what the reach of enforcement by the EPA might be if the agency were to determine that per- and polyfluoroalkyl substances (PFAS) were hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or, more informally known as Superfund). EPA proposed Superfund designations in 2022 for two PFAS (perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)). Superfund provides a mechanism for the EPA to force the parties responsible for the contamination at a designated Superfund site to either perform the cleanups with EPA oversight or reimburse the EPA if the EPA leads the cleanup activities. To date, EPA has identified nearly 200 Superfund sites where PFAS are present.

In October, as reported by Inside EPA, EPA’s chief of the Resource Conservation and Recovery Office’s cleanup programs branch, Charlotte Mooney, spoke about PFAS at Superfund sites at the Association of State and Territorial Solid Waste Management Officials’ annual conference. During that session, Mooney confirmed that the EPA’s proposed designation of PFAS as a hazardous substance could lead the agency to reopen sites where cleanup had previously been considered complete. Mooney stated the analysis would be done on a “case-by-case basis” but the criteria for that analysis has not been disclosed to date.

Continue Reading EPA Official Indicates PFAS Hazardous Substance Designation Under Superfund May Lead to Reopening Past Cleanup Actions

On November 17, the EPA paused its prior approval of up to 100 shipments of wastes containing per- and polyfluoroalkyl substances (PFAS) from the Chemours Netherlands B.V. facility in Dordrecht to the Chemours Fayetteville Works plant in North Carolina. The North Carolina Chemours plant has been the source of previous pollution.

This news comes on the heels of a new analysis of EPA data showing that over the last five years at least 60 million pounds of PFAS waste has been disposed of in the US. According to the author of the new analysis, Public Employees for Environmental Responsibility (Peer), the 60m pounds estimate is likely to be a “dramatic” undercount because PFAS waste is mostly “unregulated” in the US and companies are typically not required to record its disposal. As part of its analysis, Peer identified over 10,300 PFAS waste shipments between June 2018 and June 2023.

Continue Reading US Continues Disposing of PFAS Waste Despite Known Dangers

As the EPA nears finalizing recently proposed environmental regulations related to per- and polyfluoroalky substances (“PFAS”), corporate America waits with bated breath.

Businesses involved in the manufacturing and sale of PFAS or PFAS-containing products are closely monitoring the legal landscape surrounding PFAS litigation. With the pending multibillion-dollar settlements between 3M, DuPont-related entities, and U.S. public water providers, the public is finally becoming more aware of PFAS. Public sentiment is now turning towards holding companies traditionally associated with making PFAS (such as 3M and DuPont) responsible for addressing the environmental and public health concerns related to PFAS.

There is increasing concern, however, toward keeping a clear line between the manufacturers of PFAS, who understood the damage their products would cause, and the downstream businesses who purchased and used PFAS in their products. Often, these downstream businesses were unaware that their products contained PFAS, or they failed to fully appreciate all the risks associated with using PFAS in their products, because the makers of the PFAS historically withheld or covered up that information. Thus, over the last 70 years, PFAS made its way into thousands of products throughout the stream of commerce, including cosmetics, carpets, food packaging, and clothing, with many of the companies involved in making those products not realizing that PFAS might be involved.

Continue Reading Surge in PFAS Litigation Raises Bankruptcy Fears Among Downstream Users of PFAS

Less than one month ago, EPA released its final reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). A Taft PFAS Insights post on that rule is available here. Now, just a few short weeks after issuing that rule, which imposed a one-time reporting requirement for PFAS uses, production volumes, manufacturing byproducts, disposal practices, and PFAS exposures from 2011-2022, EPA is set to issue a final rule that amends reporting requirements for PFAS under the Toxics Release Inventory (TRI).

The TRI, created by the Emergency Planning and Community Right-to-Know Act (EPCRA), is a collection of information gathered from the reporting of toxic chemical releases and pollution prevention activities, as required of industrial and federal facilities. Facilities that manufacture, process, or otherwise use notable quantities of any of the over 780 TRI-listed chemicals must report annually the quantities of those chemicals released into the environment or otherwise managed as waste. The vast majority of the 189 chemicals in the PFAS family were added to the TRI list for the 2021 reporting period, and since that time facilities have been required to file an annual report for the TRI if they manufactured, processed, or otherwise used more than 100 pounds of those chemicals in the annual reporting period. Facilities that fell under that volume (the de minimis amount) were previously exempt from the PFAS reporting requirements.

Continue Reading Proposed EPA Rule Would Eliminate the De Minimis Exemption for Reporting PFAS Under the Toxics Release Inventory, and Would Require Disclosure of PFAS in Chemical Mixtures and Finished Products
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On October 17, California Attorney General Rob Bonta issued an Enforcement Advisory Letter indicating that the Attorney General’s office intends to bring enforcement actions against companies that fail to comply with California’s new law restricting the use of per- and polyfluoroalkyl substances (PFAS) in food packaging and requiring disclosure and labeling when PFAS are used in cookware products.

The California law, known as Assembly Bill 1200 (A.B. 1200), went into effect on January 1, 2023. The law prohibits businesses, including shops and restaurants selling take-out food, from distributing, selling, or offering for sale any “food packaging” that contains PFAS. “Food packaging” is broadly defined and includes take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays. The law also requires disclosure and labeling when PFAS are intentionally included in any “cookware” product that comes into contact with food or beverages. “Cookware” includes pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.

Continue Reading California Attorney General Reinforces Intent to Pursue Enforcement Actions Against Violators of New PFAS Content Law

The EPA released its final reporting and recordkeeping requirements for PFAS, scientifically known as per- and polyfluoroalkyl substances, under the Toxic Substances Control Act (TSCA) on September 28, 2023. According to EPA, the final rule is the result of a statutory mandate in the National Defense Authorization Act for Fiscal Year 2020, which amended TSCA to add Section 8(a)(7) and requires all manufacturers (including importers) of PFAS and PFAS-containing articles in any year since January 1, 2011, to submit to EPA information regarding PFAS uses, production volumes, byproducts, disposal, exposures, and existing information on environmental or health effects. The final rule’s purpose is to help EPA better characterize the sources and quantities of manufactured PFAS in the United States.

The final rule becomes effective 30 days after publication in the Federal Register. A pre-publication version is available here. For most companies, this one-time reporting will be due 18 months after the effective date. The reports must cover information in each year from 2011 through 2022.

Click here to read a summary of the final rule.

On September 20, 2023, the U.S. Consumer Product Safety Commission (CPSC) published a request for information (RFI) on per- and polyfluoroalkyl substances (PFAS). Federal Register. The CPSC seeks information from all stakeholders, such as consumers, manufacturers, importers, government agencies, non-governmental organizations, and researchers, regarding:

(1) PFAS used in commerce or consumer products,

(2) potential exposures associated with the use of PFAS in consumer products, and

(3) potential human health effects associated with exposures to PFAS from the use of consumer products.

Continue Reading Consumer Product Safety Commission Publishes Request for Information on PFAS in Consumer Products

On Sept. 8, 2023, the Michigan Attorney General’s office filed a lawsuit on behalf of the Michigan Department of Environment, Great Lakes and Energy (EGLE) against the Gerald R. Ford International Airport Authority (the Authority), the operator of the Gerald R. Ford International Airport in Kent County. The suit asserts claims under Part 31 and Part 201 of the Michigan environmental code.

EGLE alleged the presence of PFAS compounds in excess of Part 201 standards originating from operations at the Airport property and off-site in residential drinking water, streams, and groundwater nearby.

EGLE also alleged that the Authority exceeded permit limits for various non-PFAS compounds, that it failed to report other stormwater discharge sampling data, that it failed to submit certain monitoring reports in three successive years, and that PFOS detected also exceeded the Rule 57 (323.1057) Water Quality Values.

Continue Reading EGLE Sues Grand Rapids Airport Authority Over PFAS Discharge

The coalition of law firms, including Taft, working together to lead litigation and secure settlements on behalf of those harmed by PFAS chemical contamination has announced additional significant developments in the implementation of their new settlements with 3M and DuPont-related companies that will provide benefits of up to $13.6 billion for public water providers across the country. Taft partner Rob Bilott is one of the coalition’s lawyers and has been working on these PFAS issues for more than two decades when he brought the first PFAS case in the country in 1999.

On Aug. 29, 2023, the federal court in South Carolina overseeing the ongoing nationwide litigation over damage caused by PFAS in aqueous film-forming foam (AFFF) granted preliminary approval of the settlement with 3M, valued at up to $12.5 billion. This follows the Court’s similar preliminary approval of the settlement with DuPont and its related companies on Aug. 22, 2023, valued at an additional $1.185 billion. Together, these settlements represent the largest drinking water settlements in US history.

Continue Reading Additional Drinking Water Settlement Developments Announced by Taft and Lawyers Leading PFAS Litigation Nationwide

Taft is among a coalition of law firms that have been working together for over a decade to lead litigation and secure settlements on behalf of those harmed by PFAS chemical contamination. The coalition has announced two significant developments in the implementation of their new settlements with 3M and DuPont-related companies that will provide benefits of up to $13.6 billion for public water providers across the country. Taft partner Rob Bilott is one of the coalition’s lawyers and has been working on these PFAS issues for more than two decades when he brought the first PFAS case in the country in 1999.

On Aug. 22, 2023, the federal court in South Carolina overseeing the ongoing nationwide litigation over damage caused by PFAS in aqueous film-forming foam (AFFF) granted preliminary approval of the settlement with DuPont and its related companies. Bilott serves as the Court-appointed Advisory Counsel to the Plaintiffs’ Executive Committee in the AFFF multi-district litigation.

On Aug. 23, 2023, a new website for the DuPont and 3M settlements was published, available at www.PFASWaterProviderSettlement.com. The site provides additional information as to estimated ranges of potential recoveries by individual public water providers under both of the proposed settlements.

Read more here.