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Clayton Smith

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Clayton counsels a diverse range of clients on environmental compliance, permitting, and litigation matters.

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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

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

In June 2023, the U.S. Circuit Court for the Sixth Circuit declined to resolve a unique PFAS state-law issue in Admiral Insurance Co. v. Fire-Dex LLC when it rejected an insurer’s attempt to avoid coverage for per- and polyfluoroalkyl (PFAS) lawsuits and found that the U.S. District Court properly declined to exercise subject-matter jurisdiction over the dispute.

Background

In Admiral, the insurer (Admiral) brought suit in the U.S. District Court for the Northern District of Ohio seeking declaratory judgment determining that Admiral was not required to defend its insured, Fire-Dex, in a string of actions alleging injuries and damages, primarily cancer, caused by exposure to PFAS-containing products.Continue Reading 6th Circuit Declines to Resolve PFAS Coverage Dispute

In May 2023, the United States Environmental Protection Agency (EPA) announced the results of its analysis of ten different pesticide products sampled for the presence of per- and polyfluoroalkyl substances (PFAS). EPA’s sampling efforts were prompted by a highly publicized September 2022 third-party study that reported the presence of PFAS (in particular, perfluorooctanesulfonate (PFOS)) in six out of ten pesticide products sampled. The September 2022 study caused alarm as to the potential for unknown PFAS content or cross-contamination of certain pesticide products. However, EPA’s more recent sampling of ten pesticide products, using a new and purportedly more accurate sampling method, casts doubt on the prior sampling results since EPA did not detect PFAS in any of the ten pesticide products it sampled. EPA emphasized in its May 2023 announcement that it is confident in the results of its newer sampling method, which is specifically targeted to analyze for PFAS in pesticide products formulated with surfactants and non-volatile oils.

EPA obtained samples of the ten pesticide products from the third-party study author and from purchases of the same products on the open market. EPA evaluated the ten pesticide products using both EPA’s new method (the ACB Method) and the method used in the third-party’s earlier study (the Lasee Method). EPA did not detect any of the 29 additional PFAS for which EPA screened the pesticide products for (including PFOS), above the lab instrument’s detection limit of 0.2 parts per billion (ppb). Notably, EPA’s detection limit is 2,500 times more sensitive than the limit in the earlier third-party study. EPA requested additional information and raw data from the study author but did not receive anything other than the published results.Continue Reading EPA Sampling Raises Questions on Prior Detections of PFAS in Pesticide Products

EPA has released a newly developed and validated analytical methodology for testing pesticide products for the presence of per- and polyfluoroalkyl substances (PFAS). Referred to as the ACB Method, this new PFAS-detection method was developed by EPA’s Analytical Chemistry Branch (ACB). The ACB Method primarily differs from an alternative PFAS-detection method (the Lasee Method) in its approach to sample preparation. As background, the Lasee Method was introduced by Steven Lasee in November 2022 in his co-authored study titled “Targeted Analysis and Total Oxidizable Precursor assay of several insecticides for PFAS” in the Journal of Hazardous Materials.

The Lasee Method prepares a sample through dilution in a solvent/water solution to dilute the matrix using a single instrument for analysis. The ACB Method requires a more intense extraction to isolate PFAS compounds from the sample matrix before instrumental analysis, thereby reducing matrix interference and increasing the accuracy of PFAS detection. In short, EPA’s ACB Method is designed to eliminate interference from non-volatile oils and surfactants present in pesticide formulations that can result in false positive detections of PFAS. EPA’s verification analysis contains additional scientific details on the difference between the two methods and the significance of using EPA’s ACB Method when testing specific formulations.Continue Reading EPA Releases New Method of Testing for PFAS in Pesticide Products