In a step toward increased regulatory attention on so-called forever chemicals, California Governor Gavin Newsom recently signed into law two bills requiring manufacturers to limit the amount of per-and poly-fluoroalkyl substances (PFAS) in particular products.
Read the full Alert on the Duane Morris LLP website.
The U.S. Environmental Protection Agency (EPA) is proposing to add 16 individually listed per- and polyfluoroalkyl substances (PFAS) and 15 PFAS categories―representing more than 100 individual PFAS―to the Toxics Release Inventory (TRI) list of toxic chemicals subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA). In addition, EPA is proposing to reclassify over 35 previously listed PFAS into these chemical categories, which will impact the calculation of reporting thresholds for the reclassified chemicals.
Read the full Alert on the Duane Morris website.
The U.S. Environmental Protection Agency announced that it is amending the Toxic Substances Control Act regulation requiring manufacturers (including importers) to report certain data on perfluoroalkyl and polyfluoroalkyl substances (PFAS). Under the amendment, the data submission period will now begin July 11, 2025, instead of November 12, 2024. For any reporter who is reporting exclusively pursuant to § 705.18(a) (article importers), and is also considered a small manufacturer under the definition at 40 CFR 704.3, the submission period shall end July 11, 2026. For all other reporters, the submission period shall end January 11, 2026.
A prepublication copy of the rule amendment can be found here.
SB 2902 defines “firefighting personal protective equipment” broadly to include clothing and wearable items, jackets, pants, footwear, gloves, helmets and respiratory equipment and restricts intentionally added PFAS in these items.
SB 2902, in Section 245, originally required manufacturers of PPE containing PFAS to provide written notice to the purchaser of PPE that the PPE contains PFAS, the reason the PPE contains PFAS and the specific PFAS chemicals within the product.
The revisions to SB 2902 struck Section 245 and replaced it with a blanket prohibition which states that “a manufacturer or other person who sells firefighting personal protective equipment…shall NOT manufacture, knowingly sell, offer for sale, distribute for sale or distribute for use in the commonwealth any firefighting personal protective equipment containing intentionally added PFAS.”
The Act is to take effect on January 1, 2027. The Act passed the Legislature and has been sent to the Governor for signature. As of August 8, 2024 the Governor has not yet signed the Bill.
Green Sprouts – If signed by the Governor, Massachusetts would join with other states in outright banning PFAS in personal protective equipment, and join a growing trend of states that have chosen to eliminate the additive use of PFAS in PPE.
About Duane Morris:
Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We counsel clients on their concerns and objectives and how new rules, regulations and rulings might apply to them.
For More Information:
If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. Mills, Brad A. Molotsky, David Amerikaner, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.
On May 8, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The final rule, which EPA announced on April 17, 2024, and which will take effect July 8, 2024, is the first time EPA has ever invoked CERCLA Section 102 to designate a new substance as a hazardous substance via regulation. The publication of the rule starts the clock for any challenges to the rule, giving industry and other parties 90 days from publication to file any applicable legal challenges. Publication also triggers a congressional review period under the Congressional Review Act, giving Congress 60 “legislative days” to review the rule. EPA’s decision to release the rule now is noteworthy in that the review period likely will expire before the general election in November and potential changes in control of the House, Senate and White House.
The full Alert is available here.
In early 2022, the Governor of Maryland signed SB 273/HB 275, Chapter 138, 2022 into law (the “22 Act”) to regulate per- and polyfluoroalkyl substances (PFAS) in several categories of consumer products. For the 22 Act –
[https://mgaleg.maryland.gov/2022RS/Chapters_noln/CH_139_sb0273e.pdf]
The 22 Act became operational on January 1, 2024 and focuses on the following key areas:
The 22 Act defines PFAS as “a class of fluorinated organic chemicals that contain at least one fully fluorinated carbon atom”.
In addition to the 22 Act, on May 9, 2024, the Governor signed HB 1147 (Chapter 488) (the “24 Act”) into law to regulate lead and PFAS chemicals in playground surfacing materials (artificial turfs), which further adds to the impact of the 22 Act noted above.
The 24 Act amends Code of Maryland Environment Title 6 by adding subtitle 16A -‘Playground Surfacing Materials’.
https://mgaleg.maryland.gov/2024RS/Chapters_noln/CH_488_hb1147t.pdf
According to the definitions in the 24 Act, ‘PFAS chemicals’, ‘Playground’ and ‘Playground surfacing materials’ have the following meanings:
The 24 Act requires that from and after October 1, 2024, that playground surface materials NOT contain any intentionally added PFAS. Moreover, the 24 Act prohibits a person from installing, supplying, selling, soliciting, or offering for sale playground surfacing materials that contain a certain concentration of lead or a component product, material, or substance to which PFAS chemicals were previously intentionally added for certain purposes and also prohibits a county, municipality, or unit of local government from adopting any ordinance, rule, or regulation related to playground surfacing materials that is less stringent than of the 24 Act.
Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.
For More Information:
If you have any questions about this post, please contact Lindsay Ann Brown, Lori A. Mills, Kelly Bonner, Brad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.
In 2019, Governor Ned Lamont held a bill signing ceremony at the edge of the Farmington River in Windsor to commemorate the adoption of a new state law banning the use of firefighting foam and food packaging that contains per- and polyfluoroalkyl substances. Commonly known as PFAS, the large group of man-made “forever chemicals” are used in a variety of materials and products around the world.
Specifically, per the Governor’s office, Public Act 21-191, An Act Concerning the Use of PFAS Substances in Class B Firefighting Foam, banned the use of PFAS-containing firefighting foam, or “AFFF,” effective October 1, 2021. Thereafter, AFFF was no longer permitted for use in training activities. Additionally, the law also phased out PFAS-containing food packaging by the end of 2023. The Act is now operative on both fronts and has taken hold.
The Act was an attempt to operationalize the Governor’s 2019 PFAS Action Plan: with a stated goal to minimize future releases of PFAS to the environment, and minimize human health risk for Connecticut residents caused by PFAS. The action plan was developed by the Connecticut Interagency PFAS Task Force, which was established in 2019 by Governor Lamont and led by the Department of Energy and Environmental Protection and the Department of Public Health, with assistance from many other agencies, including the state Department of Emergency Services and Public Protection.
Public Act 21-191 makes mandatory a takeback program the Department of Energy and Environmental Protection had already been engaged in to collect AFFF foam from municipal fire departments at no charge. The takeback program is funded by a $2 million allocation approved by the State Bond Commission in July 2020. As of late 2022, over 170 fire departments have requested pickups of their existing foam inventories. A total of 50 municipalities have completed the takeback program, with more than 6,000 gallons of PFAS-containing foam collected thus far.
Connecticut’s Public Act 21-191 is being used as a model in other states looking to reduce and/or eliminate PFAS in fire fighting foam and in food packaging. The Act gave various manufacturers time to modify their approach to including PFAS in their products and now, 4 years later, the applicable bans are being enforced in fire fighting foam and in food packaging.
Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.
For More Information:
If you have any questions about this post, please contact Lindsay Ann Brown, Lori A. Mills, Kelly Bonner, Brad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.
On May 1, 2024, Colorado enacted the “Perfluoroalkyl and Polyfluoroalkyl Chemicals Consumer Protection Act” (the “PPCCA“) to establish a regulatory scheme that prohibits the sale or distribution of certain products that contain intentionally added perfluoroalkyl and polyfluoroalkyl chemicals (PFAS).
The full bill – SB 081 can be found here https://legiscan.com/CO/text/SB081/2024
As of January 1, 2024, the PPCCPA, restricts the sale and distribution of each of the following products in Colorado if the products contain intentionally added PFAS chemicals:
In addition, after January 1, 2024, a manufacturer of cookware sold in Colorado that contains intentionally added PFAS chemicals in the handle of the product or in any product surface that comes into contact with food, foodstuffs, or beverages is required to:
Further, per the PPCCA, after January 1, 2024, a manufacturer of cookware is prohibited from making a statement that the cookware is free of PFAS chemicals unless no individual PFAS chemical is intentionally added to the cookware.
On and after January 1, 2025, the sale or distribution in Colorado of any products in the following product categories is prohibited if the products contain intentionally added PFAS chemicals:
On and after January 1, 2027, the sale or distribution in Colorado of any of the products in the following product categories is prohibited if the products contain intentionally added PFAS chemicals:
Moreover, manufacturers and distributors should also be aware that the PCCAA includes products that do not contain intentionally added PFAS chemicals in the definition of “environmentally preferable products” for the purposes of state agency procurement.
The PPCCA also:
Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.
For More Information:
If you have any questions about this post, please contact Lindsay Ann Brown, Lori A. Mills, Brad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.
Earlier this week, I had the pleasure of moderating our inaugural webinar session on PFAS – PFAS What You Need to Know. I was joined by fellow Partner Lindsay Brown of our Cherry Hill office, Larry Gottlieb, President and Chief Innovation Officer at ResinTech, and Colleen Costello and Thomas Geiger of Sanborn.
We spent the hour discussing many things PFAS related including, that in the panelists experience, the number of people and the knowledge base and visibility of PFAS in the environment and in products we use in our offices and homes has increased markedly in the last 3-5 years. Despite this consumer and legal focus in the PFAS arena, it was felt that the medical profession, as a whole, has not focused on the impact to their patients and how to treat PFAS in the blood stream as of yet in an adequate way.
We reviewed how PFAS is a man-made substance that was created in the United States in a lab in the 1930’s and that it worked for its intended purpose – meaning, it is a very strong chemical and has incredibly strong bonds; it repels water as it was intended and it works well. The unintended consequences of how far reaching the chemicals would flow and how quickly they would move in water and how they would find their way into various products in the home and the work place and what lingering health impacts to fish, animals and humans is still playing itself out in numerous studies that have been conducted over the last 7 years and counting. A massive uptake in litigation and class action lawsuits have proliferated over the past decade against the original 20 manufacturers of PFAS and these numbers continue to rise.
While the panelists pointed out that due to the danger of the chemicals, some PFAS have been phased out, they also noted that according to the National Institute of Environmental Health there are over 12,000 different types of PFAS – including PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid – an 8-carbon chain), many of which continue to be unregulated at the federal and state level.
We discussed various industries that have utilized PFAS in their products or in their manufacturing processes in the past including fire fighting foam, fire protection equipment, plastic manufacturing, synthetic fiber manufacturing, metal finishing and coating, textile mills, furniture manufacturing, leather and tanning operations, paper manufacturing, at airports, and in various consumer goods including cosmetics, fabric treatments, dental floss, toothpaste, toilet paper, ski wax and cookware, grease resistant paper, microwave popcorn bags, pizza boxes, candy wrappers as well as in resistant coatings on carpet, upholstery and furniture and plastic wrapping for food.
So what is the big deal? The group discussed that the big deal is that the PFAS family of chemical compounds do not degrade in the environment, whether in water or in soil and are now found in fish, animals and humans around the globe. Given its strength, PFAS tends to bioaccumulate in humans and animals – meaning it does not leave our blood stream once it enters it and it accumulates as we continue to be exposed to more and more PFAS.
Some of the potential health impacts that the National Institute of Health and the EPA have focused on include developmental delays, hormonal imbalances, birth defects, testicular and kidney cancers, liver issues and endocrine disruption.
The panel discussed how PFAS has historically been measured, where it has been measured at all. In many chemicals, measurements are done in part per million (PPM) or, in some instances, parts per billion (PPB) but that the EPA has determined that quantities of PFAS that exceed 4 part per trillion (PPT) are dangerous to humans if consumed in drinking water. A useful analogy provided by the panel is that we are talking about a danger level at a tea spoon worth of PFAS in 20 Olympic sized pools was
While awaiting EPA regulations on drinking water standards, many states enacted their own standards of 50 PPT or 15-20 PPT and these states will now need to re-evaluate and revise their standard in light of the recently announced EPA standard of 4 PPT. States that have no PFAS standard will now also be subject to the federal standard of 4 PPT.
We also discussed that under the Toxic Release Inventory (TRI) Reporting requirements, new reporting obligations have been enacted which are now in effect and which will require 189 different PFAS to report under its required reporting regime. Historically, reporting was triggered from 100 pounds of PFAS or more but, starting in 2025, 7 new PFAS constituents have been added to the list of “chemicals of special concern” where no de minimis quantity exemption will apply. Other reporting rules for PFAS under the Toxic Substances Control Act of 1976 (TSCA) have also been implemented which will require certain importers and manufacturers of products with PFAS in the products to review their records and look back to 2011 and report on the amount of PFAS being used in such products.
Furthermore, we chatted about remediation techniques, including trapping PFAS at receptors and point sources to limit the amount of PFAS escaping into our ground water, as well as the “pump and treat technique” of such water and how to address impacted group water via granular activated carbon (GAC) and via ion exchange (IX) but, that these techniques, while very efficient at trapping the PFAS, do not eradicate it rather they merely separate it from the impacted water. To truly eradicate the PFAS and not create off gassing into the air that will then likely impact surrounding soil around the off gassing, one would need to incinerate the PFAS to a temperature of approximately 1750 F (noting most incinerators do not get close to this temperature) in order to cause the PFAS to break down into its constituent elements of carbon and fluorine. Not to give up hope, many technologist are focusing on how to remove the PFAS from various media (i.e., water, soil, etc.), and then how to destroy the PFAS in bulk using innovative techniques that include plasma, hot plasma, supercritical water oxidation (SCWO) and ionic gasification.
We wrapped up the hour touching on how the EPA has just, as of last week, declared certain PFAS to be a “hazardous substance” under CERCLA and, with this designation, under the law, strict liability will attach to the producer or seller of the product or for the owner of the site or building or use of the site or building that has the PFAS issue, irrespective of fault. As such we all agreed that a focus on risk mitigation, insurance, allocation of who bears what risk in a sale, lease, purchase and product delivery system are key areas to consider as the law continues to evolve and class action lawsuits continue to proliferate in the arena.
For more information on PFAS, the panel’s favorites include WQA.org, the EPA’s PFAS site and PFAS toolkit, the ITRC guide on PFAS and the NJDEP site and its PFAS tab.
Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.
If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. Mills, Brad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.
On April 8, 2024, EPA Administrator Michael Regan signed a final rule setting limits for six PFAS in drinking water. The rule, which will become effective 60 days after publication in the Federal Register, establishes maximum contaminant levels (MCLs) for PFOA (4 ppt), PFOS (4 ppt), PFHxS (10 ppt), PFNA (10 ppt) and HFPO-DA (10 ppt), and will use a hazard index MCL of 1 to regulate mixtures of PFHxS, PFNA, HFPO-DA and PFBS. The rule will preempt any state standards that are less stringent than the new EPA rule.
The full Alert on this new rule is available HERE.
