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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.

Minnesota is seeking public comment on the development of new rules to implement recent state legislation prohibiting offers to sell, the sale, and/or distribution of any product or product component containing any intentionally added per- and polyfluoroalkyl substances (PFAS)in the state of Minnesota, regardless of whether the product is intended for industrial, commercial, or consumer use. The law (Minnesota Session Law – 2023, Chapter 60, Article 3, Section 21, codified as Minn. Stat. § 116.943, and referred to as “Amara’s Law”) casts a wide regulation net and falls in line with Minnesota’s history of regulations addressing intentionally added PFAS in products. The law includes a provision that allows for the use of PFAS in such products, if the use is currently unavoidable, and the Minnesota Pollution Control Agency’s (MPCA) current public comment period is seeking input on what uses of intentionally added PFAS will qualify as “currently unavoidable uses.”

Continue Reading MPCA Seeks Comments on Currently Unavoidable Uses of Intentionally Added PFAS

With the publication of two new proposed rules on February 8, 2024, EPA has taken the first step under its PFAS Strategic Roadmap to bring PFAS compounds under the umbrella of the Resource Conservation and Recovery Act (“RCRA”).  These proposals are designed to accomplish both short- and long-term objectives.  In the short-term, EPA’s proposals will make PFAS compounds subject to corrective action authorities at RCRA hazardous waste facilities.  This means that if a release occurs at such facilities, the owner or operator must investigate whether the contamination includes PFAS and, if so, remediate the contamination along with other hazardous constituents. In the long term, EPA’s proposals set the stage to list nine PFAS compounds as RCRA hazardous wastes. 

Continue Reading EPA Sets the Stage to List PFAS as a Hazardous Waste

As regulation of per- and polyfluoroalkyl substances (PFAS) continues to develop at the state and federal level, an issue of significant concern is the potential for product packaging made with PFAS to impart or “leach” those PFAS into the products contained within. In a prior article in this space, Taft’s Environmental practice group outlined a recent EPA order requiring a manufacturer of fluorinated high-density polyethylene (HDPE) containers designed to hold various liquid products to cease producing such packaging using PFAS, out of concern for the risk of PFAS leaching into the products. Now, at least one state legislature is taking up the issue in an effort to prevent products containing PFAS as a result of leaching from entering commerce in that state.

Continue Reading Proposed Vermont Legislation Seeks to Address PFAS Risks Associated with Fluorinated HDPE Packaging