PFOS – PFAS

May 2, 2024 by Brad A. Molotsky

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. 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.

April 13, 2023 by Brad A. Molotsky

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.

February 1, 2023 by Lindsay Brown

New Jersey and PFAS Regulation — What’s Come Before and What Does 2023 Have in Store?

From 2018 through 2020, the New Jersey Department of Environmental Protection (the Department or NJDEP) adopted a suite of new rules to address certain per- and polyfluoroalkyl substances (PFAS), specifically, PFOA, PFOS and PFNA, under multiple Department programs. Since that time, the Department continued to advance additional measures targeting these compounds under the auspices of its regulatory and enforcement authorities. More recently, the New Jersey Legislature has taken aim at these and other PFAS, expanding the scope of certain existing laws and introducing a collection of new bills regulating the use, detection and research of PFAS throughout the State. Here’s an overview of the current regulation of PFAS in New Jersey and what to expect in 2023.

Drinking Water Maximum Contaminant Levels

New Jersey was at the forefront of regulating PFAS in drinking water, being one of the first states to propose and adopt regulations setting a maximum contaminant level (MCL) for PFNA (13 parts per trillion (ppt)) in 2019, followed closely by the adoption of MCLs for PFOA (14 ppt) and PFOS (13 ppt) in 2020. These regulations require public water systems to routinely monitor for these contaminants, notify their customers of any violation within 30 days of determining that a violation has occurred, and report MCL violations to the public in their annual Consumer Confidence Reports.

Because the current New Jersey MCL regulations apply to public water systems only, New Jersey also expanded the testing of private wells under the Private Well Testing Act (PWTA), to address PFOA, PFOS and PFNA. The PWTA requires the testing of private potable wells prior to closing the sale of the property and also requires landlords to test private potable wells every five years and provide those test results to their tenants. As of December 2021, PFOA, PFOS and PFNA were added to the PWTA list of water quality parameters required to be tested.

New Jersey’s MCLs for PFOA and PFOS could change in 2023. The United States Environmental Protection Agency (US EPA) anticipates issuing a proposed National Primary Drinking Water Regulation for PFOA and PFOS in 2023. The proposal, which is expected in March, will include a maximum contaminant level goal (which is unenforceable) and an enforceable standard, which may be an MCL or a required treatment technique. In the event the US EPA adopts an MCL for PFOA or PFOS that is lower than the standard adopted by New Jersey, the US EPA MCL will apply (as would any treatment technique that it may require). US EPA anticipates finalizing the drinking water regulation by year-end. Continue reading “New Jersey and PFAS Regulation — What’s Come Before and What Does 2023 Have in Store?”

January 15, 2023January 15, 2023 by Brad A. Molotsky

PFAS – Pennsylvania DEP Adopts new limits on 2 PFAS Chemicals – Required Testing, Reporting and Treatment

Earlier this past week, the Pennsylvania Department of Environmental Protection (“DEP”) adopted new limits on two classes of PFAS chemicals.

Pennsylvania joins a growing list of states that have implemented limits and, in some cases, bans, on certain types of PFAS and PFOS chemicals. According to the new rule, Pennsylvania will now mandate that all public and private drinking water treatment facilities in the Commonwealth, together with schools and healthcare facilities, and commercial bottled water plants, will all be required to test their water for PFAS and PFOS, report the findings and treat affected water for the chemicals present above the new maximum contaminant levels (MCLs).

Pennsylvania’s new regulations will restrict the PFAS compounds PFOS (perfluoro-octane sulfonic acid) at 14 parts per trillion, and PFOA (perfluorooctanoic acid) at 18 parts per trillion.

Studies have indicated that over 97% of all humans have PFAS compounds in their blood stream that bio accumulates over time.

For decades, PFAS chemicals have been widely used in consumer products such as cosmetics, personal care products, furniture stain resistant applications, carpet stain guard, flame retardant fire fighting foam (including foam used at all airports in the US), non-stick cookware, flame-retardant clothing, weather resistant outdoor clothing, some food packaging, as well as in firefighting foam used at current and decommissioned military bases.

While the new DEP regulations set the MCLs for these chemicals for the first time in Pennsylvania, critics have pressed for a lower MCL, for more PFAS compounds to be regulated and for private wells to be protected.

New Jersey recently proposed a 4-bill set of additional PFAS restrictions and already restricts PFAS at 13 parts per trillion for PFOS and PFNA, and 14 parts per trillion for PFOA. Delaware is also considering regulations akin to Pennsylvania’s and has proposed implementing its own MCLs.

At the federal level, the Environmental Protection Agency is continuing to study PFAS and had set a federal health advisory level for PFAS, but unlike the PA MCLs, the federal advisory is just that, advisory, and, as such, is not per se actionable. As part of its ongoing effort to study and limit the effects of PFAS, in June, 2022, the EPA revised its prior advisory guidance set in 2016 at 70 parts per trillion down to .004 parts per trillion, after announcing the compounds were more concerning than EPA had previously thought.

Key Take Away – Pennsylvania joins a growing list of states that are actively reviewing and setting standards on what is acceptable and not in drinking water, soil, products, food packaging, and other consumer products. The new PA rule will require testing, reporting and treatment for affected water which exceeds the noted standard.

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 discussion 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 Lindsay Brown, Brad A. Molotsky, Alyson Walker Lotman, Alice Shanahan, Seth Cooley, 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.

January 11, 2023 by Brad A. Molotsky

PFAS – Request for Public Comment on Data Collection regarding “Human Health Effects of Drinking Water Exposures to Per-and Polyfluoroalkyl Substances: A Multi-Site Cross Sectional Study”

Earlier this week, the Agency for Toxic Substances and Disease Registry (“ATSDR”) issued a notice – “Proposed Data Collection Submitted for Public Comment and Recommendations”.

The notice was published in the Federal Register on January 11, 2023 by Jeffrey M. Zirger, Lead, Information Collection Review Office, Office of Scientific Integrity, Office of Science, Centers for Disease Control and Prevention (the “Notice”).

ATSDR is asking the general public and other federal agencies to comment on a continuing information collection as required by the Paperwork Reduction Act . This notice requests comment on a proposed information collection project entitled “Human Health Effects of Drinking Water Exposures to Per- and Polyfluoroalkyl Substances (PFAS): A Multi-Site Cross-Sectional Study (the Multi-Site Study)”. The goal of the research is to develop and deploy sound study methods to better determine if and how drinking water exposure to PFAS is related to health outcomes.

ATSDR is particularly interested in comments that will help:

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

2. Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to be collected;

4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses; and

5. Assess information collection costs.

Per the Notice, ATSDR seeks to cumulatively enroll approximately 9,100 participants (7,000 adults and 2,100 children and their parents) from communities exposed to PFAS-contaminated drinking water. In total, each recipient will attempt to meet a target recruitment of 1,000 adults and 300 children. Annualized estimates are 3,033 participants (2,333 adults and 700 children). Over the first three years of the five-year cooperative agreement program, the recipients have enrolled over 3,000 adults and over 300 children (as of 11/17/2022). The enrollment of children has been especially challenging during and following major closures and access to schools and other educational facilities due to the COVID-19 pandemic.

Further, according to the Notice, the main goal of the cross-sectional study is to evaluate associations between measured and reconstructed historic serum levels of PFAS including PFOA, PFOS, and PFHxS, and selected health outcomes. The health outcomes of interest to the ADSDR include lipids, renal function and kidney disease, thyroid hormones and disease, liver function and disease, glycemic parameters and diabetes, as well as immune response and function in both children and adults. In addition, the study has been designed to investigate PFAS differences in sex hormones and sexual maturation, vaccine response, and neurobehavioral outcomes in children. In adults, additional outcomes of interest by the ATSDR include cardiovascular disease, osteoarthritis and osteoporosis, endometriosis, and autoimmune disease.

To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7118; Email: omb@cdc.gov

If interested in the full text of the Notice, please see attached: http://www.gpo.gov/fdsys/pkg/FR-2023-01-11/html/2023-00333.htm

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 discussion 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 Lindsay Brown, Brad A. Molotsky, Alyson Walker Lotman, Alice Shanahan, Seth Cooley, 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.