PFAS (Per-and Polyfluoroalkyl Substances)

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

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

Over the last several weeks, appellate courts in two states have issued decisions with varying impacts on per- and polyfluoroalkyl substances (PFAS) regulations at the state level. In New Jersey, the New Jersey Appeals Court has upheld the strict PFAS drinking water standards promulgated by the New Jersey Department of Environmental Protection in an opinion issued Aug. 3, 2023. In contrast, just yesterday, a Michigan appeals court invalidated the PFAS drinking water standards issued by the Michigan Department of Environment, Great Lakes, and Energy (EGLE).Continue Reading Michigan Court of Appeals Decision Upends State’s Regulation of PFAS in Drinking Water

Recent research conducted by the United States Geological Survey (“USGS”) determined that at least 45% of the tap water in the United States is projected to contain at least one type of per- and polyfluoroalkyl substances (“PFAS”). The USGS’s study assessed over 700 private and public tap water supplies in the United States, though they believe that the lack of detailed information about PFAS exposure in unregulated private wells may impact their projected estimated of PFAS-impacted tap water.

USGS’s research compared human PFAS exposures in 716 different locations, with 269 unregulated private wells, and 447 regulated public-supply tap water sources analyzed across the US from 2016–2021. The study found estimated median cumulative concentrations being similar among private wells and the public-supply. USGS has determined that the results are definitive evidence that further assessments of the health risks of PFAS as a class of contaminant, and in combination with other co-occurring contaminants (meaning other contaminants which are likely to be present alongside PFAS), are necessary.Continue Reading Recent United States Geological Survey Finds Over 45% of Tap Water Contaminated by 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