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
US EPA Releases National Drinking Water Standards
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
MPCA Seeks Comments on Currently Unavoidable Uses of Intentionally Added PFAS
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
EPA Sets the Stage to List PFAS as a Hazardous Waste
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
Proposed Vermont Legislation Seeks to Address PFAS Risks Associated with Fluorinated HDPE Packaging
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
Closed Tennessee Landfill Sued Under the Clean Water Act for Alleged PFAS in Permitted Discharges
Environmental non-profit Tennessee Riverkeeper has filed a Clean Water Act (CWA) citizen suit against the City of Lebanon alleging unlawful discharges of multiple per- and polyfluoroalkyl substances (PFAS) from the City’s inactive municipal landfill. Riverkeeper acknowledges that the landfill has a valid NPDES permit that authorizes the discharge of treated leachate, but it nevertheless alleges that the discharges constitute a CWA violation because none of the PFAS are specifically listed as authorized “pollutants” in the facility’s permit.
Section 301(a) of the CWA generally prohibits the discharge of “any pollutant” from a point source into a water of the united states, except pursuant to a permit or in compliance with certain listed section of the CWA. “Pollutant” is defined expansively as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C.A. § 1362. Thus, potential liability is broad. But it is certainly not unlimited. In cases like this, where the defendant has a permit and is not alleged to be in violation of any specific discharge limit, a citizen suit claim could face a number of potential hurdles.Continue Reading Closed Tennessee Landfill Sued Under the Clean Water Act for Alleged PFAS in Permitted Discharges
US EPA Seeks to Eliminate PFAS From HDPE Plastic Containers
On December 1, 2023, the U.S. EPA ordered Inhance Technologies LLC (Inhance) to stop producing per- and polyfluoroalkyl substances (PFAS) as part of its fluorination of high-density polyethylene (HDPE) containers. According to the EPA, Inhance’s fluorination process enhances the barrier properties of plastic containers, but produces nine different types of PFAS.
Fluorinated HDPE containers are used for storing household products, pesticides, and other industrial goods. In 2019, the drinking water of the town Easton, Massachusetts, tested positive for PFOA, a type of PFAS, and was traced back to a mosquitocide used by state officials. In September 2020, the EPA determined that the PFAS found in the mosquitocide emanated from the product’s HDPE plastic container, which was fluorinated by Inhance. EPA later concluded that PFOA and other PFAS chemicals in containers fluorinated by Inhance can migrate into liquid products and continue migrating over time.Continue Reading US EPA Seeks to Eliminate PFAS From HDPE Plastic Containers
U.S. Department of Defense Warns Against Overbroad Regulation of PFAS
In an August 2023 report on per- and polyfluoroalkyl (“PFAS”) substance uses, the U.S. Department of Defense (“DoD”) argues that phasing out PFAS production may harm national security. This report comes after 3M announced it will phase out production of PFAS and PFAS-containing products by 2025. The report to the Committee on Armed Services of the House of Representatives and the Senate outlines the uses of PFAS that DoD believes are critical to domestic production of weapons and which DOD argues will be challenging and costly to find alternatives for.Continue Reading U.S. Department of Defense Warns Against Overbroad Regulation of PFAS
EPA Official Indicates PFAS Hazardous Substance Designation Under Superfund May Lead to Reopening Past Cleanup Actions
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
US Continues Disposing of PFAS Waste Despite Known Dangers
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