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On August 26, 2022, the US Environmental Protection Agency (EPA) announced proposed rulemaking to designate two types of per- and poly-fluoroalkyl substances (PFAS) as “hazardous chemicals” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

PFAS are a class of man-made chemicals widely used as surfactants in industrial and consumer products, including but not limited to: firefighting foam, cosmetics, clothing, cookware, and carpeting. They are known for their bio-persistence, and, unlike most other chemicals, do not “break down” in the human body when consumed. The EPA’s proposal specifically applies to perfluorooctanoic acid (PFOA), and perfluorooctanessulfonic acid (PFOS), two of the most commonly used types of PFAS.

In the news release announcing the proposed rulemaking, the EPA states that its proposal “is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment.” The EPA goes on to claim: “PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.”

While the language used by the EPA and other regulators strongly suggests to the public there is a medical consensus that PFAS exposure causes cancer and other adverse health effects, this is not the case. Despite the fact that PFAS have been widely and heavily used for decades in the United States, no epidemiological study to date has found a “causal effect”—versus an “association”—between PFAS exposure and cancer. A “causal effect,” in contrast to an “association,” is demonstrated where exposure to a particular substance shows a statistically significant increase in the number of certain health outcomes, such as cancer, as compared to what would be expected in a non-exposed population.

The EPA’s proposed designation of PFOA and PFOS as “hazardous substances” under CERCLA, if passed, is significant for a number of reasons. Companies who continue to manufacture and sell products containing PFOA or PFOS will be required to monitor and report releases of the chemical to the government, and will be regulated by the Department of Transportation under the Hazardous Materials Transportation Act.

Perhaps most significantly, designating both PFOA and PFOS as “hazardous” chemicals under CERCLA will lead to potentially limitless liability for some of the country’s biggest industries, including aviation, plastics, and oil. Under CERCLA, the Federal Government may order any party found responsible for contaminating land with a “hazardous” substance to pay for the costs of clean-up. The Federal government can—and more often than not does—cast a very wide net in assigning liability for the costs of remediating and/or removing hazardous substances from a designated site. For example, businesses or individuals may be apportioned liability under CERCLA simply for purchasing land known to be a source of prior contamination, for exercising “substantial control” over activities at the facility where the contamination occurred, or for transporting the hazardous substances. (Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp.
Continue Reading EPA Takes First Step to Designate PFAS as Hazardous Chemical Under CERCLA

Every year, the federal government passes the National Defense Authorization Act, allocating the budget for the Department of Defense (DoD). In this year’s bill, the US House of Representatives voted to require the DoD to monitor and reduce potential contamination by per- and poly-fluoroalkyl substances (PFAS). PFAS are a group of man-made chemicals commonly used as surfactants in both industrial and consumer goods, and are known for their extreme biopersistence. The widespread use of PFAS over the course of the past fifty years has led to groundwater contamination of varying degrees throughout the United States, including groundwater contamination near military sites where PFAS-containing products are frequently used as fire suppressants. Individuals who are exposed to high levels of products that contain PFAS—such as members of the military who regularly work with PFAS-containing fire suppressants—are reported to have higher levels of PFAS in their blood. Specifically, the bill addresses regulation and reporting of PFAS by the military.

Under the new bill, the DoD must report on (1) PFAS destruction alternatives to incineration, (2) sources of PFAS contamination at military sites and (3) the progress made by the DoD to replace PFAS in firefighting foam for military applications. Currently, the only fire suppressants that meet military performance standards contain PFAS. The legislation further requires the DoD to test PFAS in drinking water in department run schools. Finally, the DoD must track health problems of service members and veterans, provide blood testing to exposed service members, and notify service members and their families about their exposure to PFAS and the potential health risks.

If passed, the Environmental Protection Agency will publish criteria for water quality and set discharge limits for industrial uses of PFAS. The military would then be required to follow state clean-up regulations for PFAS contamination.

While this legislation has passed the House, it must still pass the Senate and be signed into law by the White House. If these provisions remain in the final bill, the effects will be immediately felt throughout the nation. Notably, the EPA will regulate how much PFAS can enter the environment moving forward, and require the military to remediate and develop alternatives. Recent pronouncements by the EPA regarding what it would view as “acceptable” levels in drinking water—which are near zero—suggest that, if and when this legislation is passed, the government sector, private sector and the military will be engaged for years to come in extensive and costly remediation efforts nationwide.
Continue Reading US House Passes Legislation Requiring Extensive Reporting of PFAS by Department of Defense

Massachusetts has officially joined the growing coalition of states—including Colorado, Wisconsin, Michigan and Illinois—who have filed civil suit against the manufacturers and users of poly- and perfluoroalkyl (PFAS) chemicals, also known as “forever chemicals.” On May 25, 2022, Massachusetts Attorney General Maura Healey filed suit against 13 manufacturers of PFAS in firefighting foam. Seeking “costs to clean up and remove, restore, treat, and monitor PFAS contamination and an order requiring the manufacturers to reimburse the state for the damages its products caused,” the suit follows on the heels of last month’s recommendation by the Massachusetts PFAS Interagency Task Force to ban the sale of products with knowingly-added PFAS by 2030, regulate PFAS chemicals as a class and increase public awareness through education. Filed directly in the US District Court for South Carolina, the state’s suit is destined to join the ever-growing number of cases currently consolidated under MDL No. 2873 In re Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.

While damages were not explicitly stated in the filing, Massachusetts Governor Charlie Baker has been quoted as saying, “Since taking office, our administration has provided over $110 million in funding to address PFAS contamination.” Massachusetts’ entry into PFAS litigation is but one of many signals of the ever-increasing concern amongst municipalities and states regarding the long-term cost of PFAS regulation and remediation. While several states have seen success in bringing claims, the total cost of nationwide remediation is unknown.

Unlike the last major wave of state action against the tobacco industry, however, the gathering wave of litigation against the PFAS industry is complicated by the fact that the federal government required many of the products at issue—such as firefighting foam—to incorporate the exact same chemicals the states now allege are unreasonably dangerous.
Continue Reading Massachusetts Files Suit Against PFAS Manufacturers