Duane Morris Kicks Off PFAS Webinar Series

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.

For More Information

If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. MillsBrad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

PFAS Listed in EPA’s National Enforcement and Compliance Initiatives

On August 17, 2023, the United States Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“EPA”) listed “Addressing Exposure to Per- and Polyfluoroalkyl Substances” (“PFAS”) as one of six new National Enforcement and Compliance Initiatives (“NECIs”) for FY 2024-2027. The NECIs are the issues that EPA has recognized as particularly urgent and challenging, which require additional resources and consideration on a national level.

While the EPA and State agencies have been taking actions and developing a regulatory framework to address PFAS contamination and exposure, listing PFAS as an NECI marks EPA’s intention to increase these efforts and prioritize the use of time, money and resources. Continue reading “PFAS Listed in EPA’s National Enforcement and Compliance Initiatives”

EPA Looking to Expand PFAS Substances Regulated under Superfund

2,014,777 Chemical Images, Stock Photos & Vectors | Shutterstock

On September 6, 2022, the United States Environmental Protection Agency (“USEPA”) had previously issued a notice of proposed rulemaking to designate two (2) specific PFAS substances, known as perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA hazardous substances. We have previously blogged about this Notice and it can be found on our website if of interest. The comment period to that proposed rulemaking has now closed and USEPA is presently evaluating comments received.

In the meantime, however, USEPA is considering a new initiative to expand the list of Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) regulated PFAS beyond PFOA and PFOS to include seven (7) additional PFAS, their salts and precursors and, possibly, certain categories of PFAS.

In a pre-publication notice issued by the USEPA on April 13, 2023 (to be published in the Federal Register on that same date), USEPA announced its intention to consider expansion of its CERCLA hazardous substances list developed under potentially to include seven (7) additional per- and polyfluoroalkyl substances (PFAS) on that list.

As set forth in the pre-publication notice, additional PFAS under consideration for regulation includes:

Perfluorobutanesulfonic acid (PFBS), CASRN 375-73-5;
Perfluorohexanesulfonic acid (PFHxS), CASRN 355-46-4;
Perfluorononanoic acid (PFNA), CASRN 375-95-1;
Hexafluoropropylene oxide dimer acid (HFPO-DA), CASRN 13252-13-6 (sometimes called GenX);
Perfluorobutanoic acid (PFBA) CASRN 375-22-4;
Perfluorohexanoic acid (PFHxA) CASRN 307-24-4; and
• Perfluorodecanoic acid (PFDA) CASRN 335-76-2.

Take Aways:

USEPA will also be giving consideration to the precursors to PFOA, PFOS, and other PFAS listed above as well as whether USEPA should take action to designate whole categories of PFAS based on shared characteristics among the PFAS listed in those categories.

To these ends, USEPA is seeking a variety of data sources and information to assist them is deciding whether to expand the CERCLA list. The Comment period will run until approximately July 6, 2023 (i.e., sixty (60) days from publication in the Federal Register which is anticipated on April 13, 2023).

Duane Morris has an active PFAS Team to help organizations and individuals plan, respond to, and execute on your PFAS issues and initiatives. We would be happy to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you. For more information or if you have any questions about this post, please contact Lori Mills, the author, or Lindsay Brown, Sharon Caffrey, Brad A. Molotsky, Alice Shanahan,  Seth Cooley, Alyson Walker Lotman, Kelly Bonner, Sharon Caffrey or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.

EPA Now Taking Comments on Its PFAS Enforcement Discretion Policy

On September 6, 2022, the U.S. Environmental Protection Agency (EPA) issued its proposed rulemaking to designate certain per- and polyfluoroalkyl substances (PFAS) as Hazardous Substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which would have a significant legal impact across the country and create potential liability for PFAS release and/or contamination for a broad set of entities in numerous industries. Accordingly, the EPA has been developing an enforcement discretion policy and recently concluded two public listening sessions to seek stakeholder input on concerns about CERCLA enforcement for PFAS contamination. The EPA will review and consider the input received as it finalizes the CERCLA PFAS enforcement discretion policy.

Read the full text of this Alert on the Duane Morris LLP website.

EPA to Host CERCLA PFAS Enforcement Listening Sessions

The EPA has announced that it will host two public listening sessions “to seek individual input on concerns about enforcement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for per- and polyfluoroalkyl substances (PFAS) contamination.”

According to the EPA’s announcement, the sessions will focus on “enforcement policy related to responsible parties’ financial obligations under PFAS contamination response actions.”  The input will be considered by the Agency in drafting a CERCLA PFAS enforcement discretion policy.  That policy is intended to clarify when EPA intends to use its CERCLA enforcement authorities or its CERCLA enforcement discretion, to the extent PFAS cleanup enforcement efforts occur under CERCLA.  According to the EPA:

The policy will take into account various factors, such as EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment, and EPA’s intention to not focus on pursuing entities where factors do not support taking an enforcement action.

The announcement does not provide any insight into what the EPA considers to be “significant amounts of PFAS” or what other “various factors” will be considered when deciding whether to take an enforcement action.  Presumably, these factors will be discussed at the listening sessions.

These listening sessions are not intended to seek comment on EPA’s perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) hazardous substance designation rulemaking process. That rulemaking comment period has closed.  The EPA has yet to issue a final rule on the matter, although the fact that EPA is working on a CERCLA PFAS enforcement discretion policy hints that the rule may be coming soon.

The sessions are scheduled for Tuesday, March 14, 2023 from 1:00 p.m. to 3:00 p.m. (EST) and Thursday, March 23, 2023, from 10 a.m. to noon (EST).  The sessions will also be recorded and made available on the EPA’s enforcement webpage.

You can register for the sessions using the links on this WEBSITE.   You can also submit written remarks on or before March 31, 2023 using the links on that same page.

Check back after the session dates for a summary of the discussion!

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress