Category: Chemicals

8 Things to Know About AFFF Lawsuits

Thousands of individual lawsuits have been consolidated into multidistrict litigation (MDL) against the corporations that make aqueous film forming foam (AFFF), a type of firefighting foam that was filled with per- and poly-fluoroalkyl substances (PFAS), synthetic chemicals that are now known to be dangerous to human health.

Here are 8 things that you should know about the AFFF firefighting foam lawsuits, according to mass tort lawyer Dr. Nick Oberheiden.

1. AFFF Caused Lots of Chemical Contamination

AFFF is one of the types of foam that firefighters use to put out flames. There are two classes of AFFF firefighting foam:

  1. Class A, which is used for combustible fires, like for wood or paper
  2. Class B, which is used for ignitable liquids like oil, gas, or jet fuel

Class A firefighting foams rely primarily on the water in the foam to put out the flames, though they are still substantially more effective than just using straight water. They have far fewer chemicals in them and are used more often than Class B foams.

Of Class B foams, there are two types:

  1. Foams that have fluorine in them
  2. Foams that do not have fluorine in them

Both foams work the same basic way: By blanketing flammable liquids, they prevent the fuel from catching fire and extinguish any lit fuels by suffocating the flames of the oxygen that they need in order to keep burning. This works far better than water for these types of fires, as the flaming liquids are lighter than water and would float on its surface and continue to burn.

AFFF, however, is a fluorinated type of foam. That fluorine comes in the form of a PFAS compound. There are hundreds of types of these compounds, but they are all based on one of the strongest chemical bonds in organic chemistry; the one between fluorine and carbon.

2. PFAS Chemicals are Everywhere

While PFAS chemicals have been used in firefighting foam since the 1970s, when the U.S. Navy worked in collaboration with the giant chemical corporation 3M to produce a foam that could quickly put out fires on vessels, PFAS compounds have been used in a wide variety of other capacities since the 1940s. A very versatile chemical compound, PFAS chemicals were used to:

  • Prevent or remove stains
  • Suppress or resist heat
  • Waterproof materials or make them water resistant
  • Contain grease or oil

As a result, PFAS chemicals have been added to a huge array of consumer products that span nearly every industry, including:

  • Food packaging and wrapping
  • Pizza boxes
  • Raincoats
  • Water resistant clothing and shoes
  • Non-stick cookware
  • Carpeting
  • Paint
  • Wood stain, varnish, and lacquer

In recent decades, though, researchers have noticed that the sheer ubiquity of these chemicals could pose a threat: The carbon-fluorine bond that these synthetic compounds are based on does not break down naturally, leading to PFAS being dubbed “forever chemicals.” Every piece of PFAS that is produced will continue to be a PFAS until something is done to break it down artificially, like putting the chemical into water and then superheating the water well past its boiling point.

3. PFAS Chemicals are Dangerous

It was not until relatively recently that the public learned two things about these PFAS chemicals:

  1. They had contaminated soil and groundwater across the country, and
  2. They were connected to numerous different medical conditions, including several types of cancers.

The strong chemical bond between carbon and fluorine that was fundamental to PFAS meant that, as it was used or disposed of, it would not break down. Instead, PFAS chemicals would just build up in the soil where they were dumped or would contaminate the groundwater in that soil. Eventually, PFAS chemicals found their way into drinking water and water for crops and animals. From there, it got into the food system.

It was not until the 2000s that this became apparent to the public. By then, there had been nearly 60 years of PFAS buildup.

Around this time, medical researchers also discovered that exposure to PFAS chemicals could lead to PFAS contamination in the bloodstream, which could cause a host of serious medical conditions. While research is still being done to find out what, exactly, PFAS chemicals does in the human body and which medical conditions it can cause, PFAS contamination has been linked to increased risks for:

  • Pregnancy issues, including:
    • Fetal death
    • Birth deformities
    • Hypertension
    • Preeclampsia
    • Low birth weight
    • Developmental delays in young children
  • Liver damage
  • Liver cancer
  • Testicular cancer
  • Thyroid cancer
  • Kidney cancer
  • Prostate cancer
  • Fertility problems
  • A dysfunctional immune system, including decreased effectiveness of vaccines
  • Hormonal imbalances
  • Obesity
  • High cholesterol

These are some serious medical conditions that could end up being fatal. Anyone who was exposed to PFAS chemicals, including those in AFFF, are at risk of developing them and can talk to an AFFF lawyer about filing an AFFF firefighting foam lawsuit.

4. These Cases Involve Yet Another Corporate Cover-Up

As lawsuits over PFAS exposure started to get filed in the 2000s, it quickly became clear that the large corporations who had filled our world with PFAS-heavy products had long known the risks associated with them.

PFAS manufacturer DuPont, one of the largest chemical producers on the planet, instructed its workers to only handle PFAS chemicals with extreme care as early as 1961. PFAS manufacturer 3M had discovered that the company’s PFAS chemicals were inside fish that swam in the water near one of its plants in the 1970s. In the 1980s, DuPont suddenly moved all of its female employees out of the production facility that handled PFAS chemicals – several female DuPont employees in the facility had given birth to children with serious deformities.

In spite of these warning signs, these major corporations continued to dispose of PFAS materials however they wanted to – whether that meant dumping it into the water, burying it in the ground, or burning it into the air. They also continued making new products with PFAS chemicals in them, including AFFF firefighting foam in the 1970s, which was then used by military and civilian firefighters both to put out real fuel fires and to train in putting them out. This continued for three decades, with firefighters pumping PFAS-heavy foam onto airport tarmacs and training areas on military bases across the country, deeply contaminating the soil and nearby waterways and exposing the firefighters to dangerous amounts of PFAS chemicals.

The corporate cover-up would have continued, if it were not for two things. First, in 1998, the U.S. Environmental Protection Agency (EPA) learning of an internal study at one of the major PFAS manufacturers that had found that the offspring of pregnant lab rats who had been exposed to PFAS chemicals were almost guaranteed to die within days. Second, the first class action against the PFAS manufacturer Chemours reached a temporary settlement for $71 million and funding for the C8 Science Panel to research the dangers posed by PFAS chemicals. When the Panel started to publish its findings, Chemours quickly settled the case permanently for $671 million.

5. Other PFAS Lawsuits Have Recovered Billions, and That is Just for Clean Up 

Since that first class action settled, many, many more lawsuits have been filed over PFAS contamination. These lawsuits have targeted the major corporations that have manufactured PFAS products, including:

  • 3M
  • DuPont
  • Chemours
  • BAFS

All told, these MDLs and class actions have settled for over $11 billion. There are two things about these PFAS lawsuits are important to know:

  1. They are confined to compensating for cleanup and decontamination costs, and
  2. They apply to general PFAS products, not specifically to AFFF.

This first point is crucial. The plaintiffs in these huge lawsuits have been water districts that have demanded compensation for the costs of upgrading their filtration equipment and the decontamination of their water and soil. None of the $11 billion is earmarked for the inevitable medical conditions that all of that prior PFAS contamination will cause.

6. AFFF Firefighting Foam: Class Action or MDL? AFFF Lawsuits the First to Allege Personal Injuries and Losses

Now, though, an AFFF firefighting foam MDL includes personal injury claims for medical and financial losses by victims of AFFF exposure for the first time. So you have time to file an AFFF lawsuit and join the MDL.

MDL No. 2873 consolidated hundreds of these AFFF firefighting foam cases in the U.S. District Court for South Carolina in January, 2019. This MDL covers individual victims who have suffered from one of the medical conditions associated with PFAS exposure, who need medical monitoring after being exposed to the chemicals, or who have suffered a financial loss for the diminution in the value of their property due to PFAS contamination. The cases are limited to PFAS exposure from contaminated groundwater near military bases, airports, and other industrial sites due to the use of AFFF that contain either of the two main types of PFAS chemicals used in AFFF:

  1. Perfluorooctanoic acid (PFOA)
  2. Perfluorooctane sulfonate (PFOS)

When it was first consolidated into an MDL, there were around 500 cases. Since then, it has exploded to over 9,000 claims by July, 2024, with much of the growth coming in recent months.

7. Status and Future of the AFFF MDL

MDLs like this one have become the preferred way to handle mass tort situations: Cases where the misconduct of one or a small handful of companies have led to hundreds or thousands of people suffering in similar or identical ways. By consolidating all of the cases together for pre-trial procedures, like the gathering of evidence and summary judgment motions, the cases can move forward far more efficiently than if they were all on their own.

Even though the MDL was formed over two years ago now, the AFFF litigation is still in its early stages. The defendant corporations, all of whom manufactured and sold AFFF firefighting foams, will advance numerous legal defenses to avoid accountability for their conduct or to at least mitigate the damage of a judgment or the amount of a settlement. Some of the defenses that we will likely hear are:

  • The medical condition a particular person suffered was caused by something else
  • Some other AFFF manufacturer was responsible for a particular area of contamination
  • Plaintiffs waited too long to file their claims and the statute of limitations has expired
  • The company’s version of AFFF has less PFAS chemicals in it than others

In the meantime, a growing body of medical literature is connecting PFAS exposure and contamination to serious medical issues. We may even see new medical conditions getting linked to AFFF and the toxic chemicals in it.

As evidence is gathered, settlement talks will begin. If these prove to be fruitless, the court will schedule bellwether trials. These are individual cases that are representative of the rest of the cases in the MDL that are brought through a jury trial. The outcome of those trials are then used to inform further settlement discussions, which nearly always resolve the MDL outside of the courtroom.

8. How This Will Likely End

PFAS lawsuits have been equated to the Big Tobacco Settlement, when cigarette companies settled a class action against them for huge sums. In both cases, the large corporations knew that the products that they were selling were likely to cause life-threatening medical conditions, but continued to sell them and took affirmative actions to cover up evidence that there was any risk.

In the end, though, the most important factor will be the solvency of the defendant corporations that make AFFF. Some of them are substantially larger than others and will be better able to pay the huge settlements that we are likely to see. According to mass tort lawyer Dr. Nick Oberheiden, founding partner of the national law firm Oberheiden P.C. and leading attorney on AFFF cases, “As evidence is gathered, it will become more and more clear what the defendant corporations owe. If they are not able to pay it, they are more likely to extend this MDL to the bellwether trial stage in a risky attempt to avoid settling and try to beat it, altogether. Another option that they would have in this situation is to file for bankruptcy and create a victim’s trust fund, much like asbestos companies did in order to resolve the class action against them for causing mesothelioma.”

Oberheiden P.C. © 2024
For more news on Aqueous Film Forming Foam Litigation, visit the NLR Health Law & Managed Care  section.

White House OSTP Releases PFAS Federal R&D Strategic Plan

The White House Office of Science and Technology Policy (OSTP) announced on September 3, 2024, the release of its Per- and Polyfluoroalkyl Substances (PFAS) Federal Research and Development Strategic Plan (Strategic Plan). Prepared by the Joint Subcommittee on Environment, Innovation, and Public Health PFAS Strategy Team (PFAS ST) of the National Science and Technology Council, the Strategic Plan provides a federal strategy and implementation plan for addressing the strategic areas identified in the 2023 Per- and Polyfluoroalkyl Substances (PFAS) Report (PFAS Report). The Strategic Plan is intended to be a companion document to the PFAS Report. The activities described in the Strategic Plan are reviewed through the Office of Management and Budget (OMB) annual budget process and subject to available resources.

Background

As reported in our March 16, 2023, blog item, the PFAS Report provides an analysis of the state of the science of PFAS and information that will be used to direct the development of a federal strategic plan. The PFAS Report focuses on the current science of PFAS as a chemical class, identifies scientific consensus, and portrays uncertainties in the scientific information where consensus is still sought. The PFAS Report identifies four key strategic areas that, when addressed, will generate actionable information to address PFAS: removal, destruction, or degradation of PFAS; safer and environmentally friendlier alternatives; sources and pathways of exposure to PFAS; and toxicity of PFAS. The gaps and opportunities identified in the PFAS Report were used to develop the Strategic Plan.

Strategic Plan

Based on the four strategic areas presented in the 2023 PFAS Report, the PFAS ST identified four strategic goals that will drive federal research and development (R&D) efforts regarding PFAS:

  • Provide relevant, high-quality scientific data that increase the understanding of PFAS exposure pathways to inform federal decisions that reduce risks to human health and the environment;
  • Effectively and equitably communicate federal work and results regarding PFAS R&D through engagement with impacted communities and federal, Tribal, state, and local agencies;
  • Identify research and technologies to address PFAS contamination and mitigate the adverse impacts on communities; and
  • Generate information that facilitates informed procurement decisions by federal agencies, manufacturers, and consumers regarding products that contain or use PFAS and PFAS alternatives to reduce adverse human health and environmental effects.

According to the Strategic Plan, the PFAS ST identified five R&D strategies within the strategic research areas that address the identified knowledge gaps. The R&D strategies and select tasks to achieve the objectives within each strategy include:

  • Understand PFAS exposure pathways to individuals and communities:
    • Further characterize potential PFAS exposures in the built environment, including schools, workplaces, and other indoor/household environments. According to the Strategic Plan, this would include the co-occurrence and use of consumer products and understanding the lifecycle of products with regard to PFAS exposure;
    • Initiate studies regarding PFAS co-exposure and potential interactions with other contaminants (including other PFAS) in environmental samples, such as nano- and microplastics, petroleum constituents, metals, pesticides, and pharmaceuticals;
    • Initiate and continue studies of the physical-chemical properties of PFAS and mixtures of PFAS;
    • Investigate additional pathways and routes of exposure, such as direct contact, dermal absorption, oral ingestion, and inhalation from indoor and outdoor environments (residential, consumer, and occupational exposures); and
    • Develop and support studies of PFAS exposures in indoor environments through collection of dust, air, consumer products, and other media where biomonitoring may also be conducted;
  • Address current PFAS measurement challenges through the development of standards, advanced sampling, and analytical methodologies:
    • Develop and refine analytical methods and data collection methods to evaluate PFAS content, migration, and emissions from consumer, commercial, and industrial products, and their impact on workplace and indoor environments;
    • Develop testing programs and methods related to quantifying PFAS content, migration, and emissions in animal/livestock feed, food and food packaging, indoor exposure (dust, home/office materials), workplace settings, and consumer products; and
    • Develop and validate real-time, rapid, and remote PFAS screening methods using analytical sensors, PFAS proxies, passive sampling devices, and other novel technologies for the detection of PFAS in media;
  • Understand the toxicological mechanisms, human and environmental health effects, and risks of PFAS exposure:
    • Develop scientifically supported classification schemes for PFAS with respect to adverse impacts on human health and the environment;
    • Develop and support research regarding the human toxicity and ecotoxicity testing of PFAS as mixtures with PFAS and other co-occurring chemicals;
    • Support research to understand further the mechanism of action of PFAS toxicity, advance development of adverse outcome pathways, and understand the impact of PFAS mixture toxicities when evaluating cumulative health effects;
    • Develop and support epidemiological studies designed to identify communities near significant sources of PFAS contamination that may have environmental justice concerns, including occupationally exposed populations and populations, communities, and/or lifestages that are more susceptible to PFAS exposure or adverse health outcomes;
    • Explore the development of a federal data-sharing strategy to use interagency toxicological and epidemiological data to determine human health endpoints of concern from PFAS exposure; and
    • Develop classification strategies that enable grouping of PFAS by hazard identification, exposure assessment, and dose-response studies in support of risk assessments;
  • Develop, evaluate, and demonstrate technologies for the removal, destruction, and disposal of PFAS:
    • Continue to support the foundational research that advances technologies for the destruction of PFAS by both thermal and non-thermal approaches;
    • Support the implementation of removal and destruction technologies that apply to discharge and releases at the point of manufacturing; and
    • Develop and implement models to evaluate technology performance, short-term and long-term costs, energy demands, scalability, and the composition of treated materials that are released to the environment;
  • Identify PFAS alternatives and evaluate their human health and environmental effects:
    • Engage with academic and private sector industrial researchers to support the development of novel, less toxic alternative chemistries and processes for sustainable PFAS alternatives;
    • Identify and evaluate critical and essential uses of PFAS within individual agencies and sectors;
    • Develop an interagency-aligned evaluation framework for prioritizing research on specific PFAS alternatives that includes considerations regarding sustainability; performance; viability and timeframe to transition; dependency on foreign sources of materials; criticality of the current product to national security, critical infrastructure, climate change mitigation, and public health; and criticality of the need for a replacement product or process;
    • Support research to advance sustainable manufacturing and circularity of PFAS-based processes and products to preserve current critical and essential uses, which will enable an orderly transition to PFAS alternatives in critical manufacturing sectors that are dependent on PFAS;
    • Develop a database of the current commercial inventory of alternative materials and products with relevant chemical and toxicological information, manufacturer production capacity, and performance comparison of the alternatives to PFAS-containing materials and products; and
    • Continue to assess human health and environmental effects posed by alternative materials and products for use in comparison to other product formulations, including PFAS-containing product formulations.

Commentary

Bergeson & Campbell, P.C. (B&C®) acknowledges that OSTP’s PFAS Strategy may benefit from the U.S. Environmental Protection Agency’s (EPA) regulatory activities under the Toxic Substances Control Act (TSCA) and other initiatives. We provide below representative examples of these activities.

Between 2022 and 2024, EPA issued TSCA Section 4 test orders requiring manufacturers and/or processors to perform various studies on four PFAS (i.e., 6:2 fluorotelomer sulfonamide betaine [6:2 FTSB], trifluoro(trifluoromethyl)oxirane [HFPO], 2,3,3,3-tetrafluoro-2-heptafluoropropoxy) propanoyl fluoride [HFPO-DAF], and 1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-Heptadecafluoro-N-(2-hydroxyethyl)-N-methyloctane-1-sulfonamide [NMeFOSE]).

EPA also intends on initiating ten additional TSCA Section 4 test orders per year on PFAS between fiscal year (FY) 2024 and FY 2026 (i.e., October 1, 2024-September 30, 2027). EPA’s activities under TSCA Section 4 may lead to the development of data that provide a better understanding of the human health and environmental effects of specific types of PFAS.

The TSCA Section 8(a)(7) rule on the reporting and recordkeeping of manufacture and import of PFAS will provide additional information on PFAS uses, production volumes, disposal, exposures, and hazards. In addition, EPA’s publication of its updated PFAS category analysis may help frame how to use data on PFAS for which testing has been (or is in the process of being) completed to fill data gaps on related PFAS.

Further, EPA’s Office of Research and Development (ORD) and Office of Land Use and Emergency Management (OLEM) have made significant contributions on analytical methods for detecting PFAS in various media and guidance for destroying and disposing of PFAS and PFAS-containing materials, respectively. The TSCA Section 8(a)(7) information along with EPA’s advancements with identifying PFAS in environmental media may aid with identifying those PFAS and the associated uses that lead to the greatest environmental releases.

Collectively, EPA’s activities on PFAS will advance the objectives of OSTP’s PFAS Strategy. This information may also aid with differentiating the types of PFAS that present the greatest concerns to human health and the environment versus those chemistries that do not. After all, many chemical substances, including pharmaceuticals and pesticides, meet one or more of the existing definitions for PFAS and have clear public health benefits, yet do not present the same concerns as those PFAS that have significant concerns (e.g., perfluorooctanoic acid).

©2024 Bergeson & Campbell, P.C.
For more news on PFAS Federal R&D Strategic Plans, visit the NLR Environmental Energy Resources section.

EPA Delays TSCA PFAS Reporting Deadlines

The Environmental Protection Agency (EPA) just issued a direct final rule amending reporting deadlines for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA).

As described in our prior client alert, EPA finalized a rule last fall that requires entities that manufacture (including import) or have manufactured PFAS in any year since January 1, 2011 to submit a one-time comprehensive report regarding PFAS uses, production volumes, byproducts, disposal, exposures, and environmental or health effects.

Since EPA is still developing its reporting application to collect this data, and it will not be fully functional by November 2024, EPA has bumped back the start of the data submission period from November 12, 2024 to July 11, 2025.

The data submission period now ends on January 11, 2026, except for article importers that are also considered small manufacturers. Their submission period will end on July 11, 2026.

EPA is not proposing any changes to the scope of reporting under TSCA.

©2024 Pierce Atwood LLP. All rights reserved.
For more news on EPA TSCA Reporting, visit the NLR Environmental Energy Resources section.

EPA Announces 8-Month Delay in Submission Window for TSCA PFAS Reporting Rule

The U.S. Environmental Protection Agency (EPA) is modifying the Toxic Substances Control Act (TSCA) regulation imposing reporting and recordkeeping requirements for perfluoroalkyl and polyfluoroalkyl substances (the Rule) to delay the reporting period by eight months. The Rule, as finalized last year, included a reporting window that would open on November 12, 2024, and close for most companies on May 8, 2025. EPA is now delaying the submission period by eight months. With this delay, the reporting period will open on July 11, 2025, and close, for most companies, on January 11, 2026. EPA is also making a technical correction to address a typographical error in the Rule’s text, and the delay and correction are being announced as a direct final rule that will become effective within 60 days of publication unless the agency receives an adverse public comment within 30 days of publication.

Background on the Rule

As discussed in our previous alert, the Rule sweeps broadly to require reporting on the manufacture (including import) of PFAS in any amount between 2011 and 2022. Companies that imported PFAS-containing articles during this period are also in scope, though these companies can report using a streamlined form. The Rule does not incorporate exemptions typically applied in other TSCA rules, such as for byproducts, impurities, or for most research and development (R&D). The Rule also does not incorporate a de minimis volume threshold. In-scope companies must report online through EPA’s CDX portal.

EPA’s Justification for the Delayed Submission Period

With the 8-month delay, the submission period will begin on July 11, 2025, and, for most companies, end on January 11, 2026. This submission period will end on July 11, 2026, for article importers that are considered small manufacturers. To justify the delay, EPA stated in the preamble that it “is compelled to take this action in response to constraints on the timely development and testing of the software being developed to collect information pursuant to this reporting rule (i.e., the rule’s reporting application).” EPA also cited the agency’s increased responsibilities in implementing TSCA as amended by the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act and EPA’s reduced funding as reasons for the delayed reporting period.

Technical Correction in the Regulatory Text

In addition to the delayed reporting period, EPA is correcting a typographical error in the Rule’s paragraph at 40 CFR 705.15(f)(1). Subpart (f) in 40 CFR 705.15 requires companies to submit all existing information concerning the environmental and health effects of a reported PFAS, and paragraph (f)(1) states that each “published study report” submitted on such effects must be reported using Organization for Economic Cooperation and Development Harmonized Templates (OHTs). EPA is amending this requirement to apply to “unpublished study reports,” since, as discussed by EPA in the preamble, requiring OHTs for published study reports was not the intent of the Rule. However, it should be noted that article importers using the streamlined article importer reporting form are not required to submit the information described in subpart (f) in 40 CFR 705.15.

These Changes Are Being Made as a Direct Final Rule

EPA is taking direct final action to implement the delayed reporting window and technical correction because the agency views this as a noncontroversial action and anticipates no adverse comment. This direct final rule is scheduled for publication in the Federal Register on September 5, 2024; the direct final rule will then become effective 60 days after publication unless EPA receives an adverse comment within 30 days of publication. If an adverse public comment is received, EPA will publish a withdrawal in the Federal Register informing the public that the direct final rule will not take effect.

© 2024 Beveridge & Diamond PC
For more news on EPA Reporting Deadlines, visit the NLR Environmental Energy Resources section.

U.S. EPA Finalizes Designation of Two PFAS Chemicals as Hazardous Substances Under CERCLA

On April 19, the U.S. Environmental Protection Agency (EPA) released its long-awaited final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as “hazardous substances” under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”) (the “Final Rule”). The designation, which takes effect 60 days after the final rule is published in the Federal Register, will provide expanded investigation and remediation authority to EPA, will provide a powerful tool for private actions under CERCLA, and will trigger additional release reporting requirements. It will also expand enforcement authority in states that regulate CERCLA-designated hazardous substances.

Hazardous Substance Designation of PFOA and PFOS Has Broad Implications for Cleanups and CERCLA Liability

PFOA and PFOS are two specific chemical compounds within a broad group of thousands of manmade chemicals known as per- and polyfluoroalkyl substances (PFAS). EPA focused its regulatory efforts on these two PFAS; however, the vast majority of PFAS remain unregulated under CERCLA even after issuance of the Final Rule.

Designating PFOA and PFOS as hazardous substances triggers numerous requirements. The primary impact of the Final Rule is that it incorporates PFOS and PFOA into CERCLA’s strict, joint and several liability framework. This change grants EPA the power to investigate releases of PFOA and PFOS and compel potentially responsible parties (PRPs), including owners and operators of a property or facility, to remediate releases of PFOA and PFOS through the specific CERCLA enforcement provisions. PRPs also now have a clear private right of action under CERCLA to pursue cost recovery and contribution actions. Additionally, when the Final Rule becomes effective, facilities will be required to immediately report releases of PFOA and PFOS above their designated “reportable quantities,” (currently one pound within a 24-hour period), to the National Response Center and relevant state or tribal authorities.

Furthermore, many states include CERCLA hazardous substances under their cleanup statutes, meaning these states will now be able to require remediation of PFOA and PFOS under state law.

Listing PFOA and PFOS as “hazardous substances” under CERCLA does not make PFOA or PFOS contaminated waste a “hazardous waste” or a “hazardous constituent” under the Resource Conservation and Recovery Act. However, this designation does require the U.S. Department of Transportation to designate PFOA and PFOS as “hazardous materials” for purposes of transport under the Hazardous Materials Regulations.

While the PFOA and PFOS CERCLA Listing is Final, Questions Remain

As noted in our prior article on the proposed rule, EPA’s designation of PFOA and PFOS as “hazardous substances” leaves several questions unanswered.

  • How will EPA’s CERCLA enforcement discretion policy really play out in practice? 

    Concurrently with the publication of the Final Rule, EPA also released a PFAS Enforcement Discretion and Settlement Policy under CERCLA. This enforcement policy captures EPA’s current position that it does not intend to pursue PRPs under circumstances where “equitable factors” do not support doing so. Enumerated circumstances in the policy include so-called “passive receivers” of PFAS, including community water systems and publicly-owned treatment works, publicly-owned municipal solid waste landfills, publicly-owned airports and local fire departments, and farms where PFAS-containing biosolids are applied to the land. However, EPA’s enforcement policy—which is not binding upon the agency and is subject to change at any time—should be viewed with a healthy dose of skepticism among regulated industries, considering the sheer breadth of potential CERCLA liability for these substances, as well as continued Congressional proposals to codify exemptions for passive receivers within the CERCLA statute itself. Notably, the agency’s enforcement position does not in any way prevent private parties from initiating cost recovery or contribution actions under CERCLA.

  • How will regulated industries manage the costs of PFOA and PFOS cleanup?PFAS contamination can be wide-ranging due to several factors unique to the chemicals themselves. Further, unlike remediation technologies for other well-studied contaminants, existing remediation technologies for PFOA and PFOS are nascent at best and are expensive at a large scale. It is therefore often difficult to even estimate accurate cost ranges for PFOA and PFOS cleanups, but costs can easily run into the millions of dollars at complex sites. Although EPA has published interim guidance on PFOA and PFOS disposal methods, and the recently passed Infrastructure Investment and Jobs Act provides $3.5 billion over five years for Superfund cleanups, the methods and money may not go as far as planned if cleanup costs for PFOA and PFOS sites end up exponentially higher.
  • How will EPA handle potential PFOA and PFOS contamination at closed Superfund sites?In response to comments seeking clarification on whether designating PFOA and PFOS will lead to the reopening of closed Superfund sites, EPA stated that the final rule “has no impact” on EPA’s authority to list PFOA and PFOS sites as Superfund sites. EPA’s question-and-answers page—which we note is not a binding statement from the agency—also states that “[d]esignation will not change EPA’s process for listing and/or deleting [National Priorities List (NPL)] sites or evaluating remedies’ protectiveness through five-year reviews, and it will not require PFOA and PFOS sampling at NPL (final or deleted) sites.” While the final rule does not require PFOA and PFOS sampling at closed sites, it does not prevent EPA from ordering sampling at these sites. PRPs who may have long ago stopped budgeting for remedial costs at existing or legacy locations that were remediated years and even decades ago, may find that they are required to revisit these sites where PFOA and PFOS may be present.
  • What cleanup standards will govern PFOA and PFOS remediation?There is a current patchwork of state regulatory standards relating to PFAS, ranging from binding cleanup levels, advisory guidance, or no PFAS standards at all, which may lead to similarly patchwork cleanup standards depending on which standards are applied as an appropriate “applicable or relevant and appropriate requirement” (ARAR) at a specific site. In addition, on April 10, 2024, EPA issued a final rule setting Maximum Contaminant Levels (MCL) for PFOA and PFOS in drinking water at 4.0 parts per trillion (ppt), individually. While these drinking water standards are separate from EPA’s final rule listing PFOA and PFOS as “hazardous substances” under CERCLA, the “hazardous substances” rule notes that the MCL may be an appropriate ARAR for cleanup efforts under CERCLA.
  • What other PFAS will EPA next target under CERCLA?As noted above, PFOA and PFOS are two specific PFAS among thousands of others currently and historically used. Much of the science on the potential health effects of PFAS (both individual chemical compounds and as a class) continues to evolve. In the meantime, EPA has moved to regulate additional types of PFAS under other statutes. For example, as we noted in a previous client alert, EPA recently published a proposed rule listing seven other PFAS compounds as hazardous constituents under RCRA. Some or all of these PFAS may eventually be targets of future CERCLA rulemaking efforts.

Next Steps

The Final Rule will take effect 60 days after it is published in the Federal Register. Affected parties should consider their portfolio of planned, active, and in some cases, closed remediation sites for potential implications, and companies may consider reviewing and updating their hazardous substance reporting and transportation protocols to address PFOA and PFOS as applicable.

© 2024 Foley & Lardner LLP
For more on PFAS, visit the NLR Environmental, Energy & Resources section.

EPA Designates Two PFAS as Hazardous Substances

On April 19, 2024, the U.S. Environmental Protection Agency (EPA) announced that it was designating two common per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund. As expected, EPA is issuing a final rule to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances. The pre-publication version of the rule is available here.

Once the rule is effective, entities will be required to report releases of PFOA and PFOS into the environment that meet or exceed the reportable quantity. Reporting past releases is not required if the releases have ceased as of the effective date of the rule. EPA will have the authority to order potentially responsible parties to test, remediate, or pay for the cleanup of sites contaminated with PFOA or PFOS under CERCLA.

Massachusetts established reportable concentrations for six PFAS, including PFOA and PFOS, in 2019. The Massachusetts regulations also contain cleanup standards for PFAS contamination in soil and groundwater.

Under Maine law, these substances also are automatically deemed a Maine hazardous substance regulated under the Maine Uncontrolled Hazardous Substance Sites Law. Maine’s PFAS screening levels are available here.

Solid waste facility operators had expressed serious concerns about the prospect of PFOA and PFOS being listed as hazardous substances under CERCLA and have advocated for a narrow exemption. Landfills can be recipients of PFAS-containing waste without knowing it. Similarly, wastewater treatment plant operators feared liability and increased costs if the rule designating PFOA and PFOS as hazardous substances became final.

EPA’s announcement of the final rule came with a CERCLA enforcement discretion policy [PFAS Enforcement Discretion and Settlement Policy Under CERCLA] that makes clear that EPA will focus enforcement on parties that significantly contributed to the release of PFAS into the environment.

The policy states that the EPA does not intend to pursue certain publicly‑owned facilities such as solid waste landfills, wastewater treatment plants, airports, and local fire departments, as well as farms where biosolids are applied to the land. Firefighting foam (aqueous film-forming foam, or AFFF) is known to contain PFAS, and runoff from the use of AFFF has been known to migrate into soil and groundwater.

©2024 Pierce Atwood LLP. All rights reserved.
For more news on EPA PFAS regulations, visit the NLR Environmental, Energy & Resources section.

Curb Your Pollution: EPA Issues Final Rule to Reduce Toxic Air Pollution

EPA Issues Final Rule to Reduce Toxic Air Pollution from the Synthetic Organic Chemical Manufacturing Industry and the Polymers and Resins Industries

On April 9, 2024, the U.S. Environmental Protection Agency (EPA) announced its final rule that is touted to provide critical health protections to hundreds of thousands of people living near chemical plants. The final rule, signed March 28, 2024, will reduce emissions of hazardous air pollutants, including the toxic chemicals chloroprene and ethylene oxide (EtO). The rule implements sections 111 and 112 of the Clean Air Act.

When fully implemented, the final rule will reduce more than 6,200 tons a year of over 100 air toxics – including EtO and chloroprene – from covered equipment and processes at plants in Texas and Louisiana, along with plants in other parts of the country including Delaware, New Jersey, and the Ohio River Valley.

As part of the final rule, the EPA is also issuing new emissions limits for dioxins and furans. This will reduce more than 23,000 tons of smog-forming volatile organic compounds (VOCs) each year.

EPA’s final rule will also require plants to conduct fenceline monitoring if any of the equipment or processes covered by the rule use, produce, store, or emit EtO, chloroprene, benzene, 1,3- butadiene, ethylene dichloride or vinyl chloride. Fenceline monitoring is used to measure levels of pollution in the air around the perimeter of a facility. The fenceline monitoring provisions of the rule require owners and operators to ensure that levels of these six pollutants remain below a specified “action level.” Fenceline monitoring provides owners and operators the flexibility to determine what measures to take to remain below the action level, while ensuring that they are effectively controlling toxic air pollution.

The final rule will significantly reduce emissions of air toxins, especially those that are potentially harmful for surrounding communities. According to the EPA, these emission reductions will yield significant reductions in lifetime cancer risk attributable to these air pollutants, in addition to other health benefits.

©2024 Norris McLaughlin P.A., All Rights Reserved
For more on Air Pollution, visit the NLR Environmental, Energy & Resources section.

EPA Issues Final Rulemaking on Clean Water Act Hazardous Substance Facility Response Plans

Key Takeaways

  • What Is Happening? On March 14, 2024, The U.S. Environmental Protection Agency (EPA) signed a final rule requiring certain facilities to develop Facility Response Plans (FRPs) for a potential worst-case discharge of Clean Water Act (CWA) hazardous substances, including planning for the threat of a worst-case discharge. Existing EPA regulations require FRPs where certain thresholds of oil are exceeded; the new rule extends the FRP requirement to cover CWA hazardous substances, among other changes. The rule takes effect on May 28, 2024, and has a 36-month implementation period. We anticipate challenges to the rule, but unless a court issues a stay, affected facilities should plan to implement the rule’s new requirements in this timeframe.
  • Who Is Impacted? Affected industries include many industrial and commercial sectors and facilities that handle hazardous substances at or above current reportable quantity thresholds. These may include manufacturing and chemical plants and storage operations located near navigable waters that have an inventory of CWA-listed hazardous substances at or above threshold amounts. Facilities associated with oil and gas extraction, mining, construction, utilities, crop production, animal production and aquaculture, and support activities for agriculture and forestry, among others, could also be affected.
  • What Should I Do? Facility owners and operators potentially affected by the rule should assess whether they are subject to the rule and then begin developing their facility response plans.

The rule requires Facility Response Plans for worst-case discharges of CWA hazardous substances from onshore non-transportation-related facilities that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone. Facilities already subject to requirements for Spill Prevention, Control Countermeasure Plans, or FRPs for oil under 40 CFR Part 112 should anticipate that they will fall within the scope of the new rule and plan for compliance.

Background

The final rule is EPA’s response to the settlement of a 2019 lawsuit brought by the Natural Resources Defense Council and others. The lawsuit asserted that EPA failed to meet its statutory duty to issue regulations “requiring non-transportation-related substantial-harm facilities to plan, prevent, mitigate and respond to worst-case spills of hazardous substances.”

The Consent Decree required EPA to take final action on a rule addressing worst-case discharge plans for hazardous substances by September 2022. This final action represents EPA’s final action under the consent decree.

Applicability Criteria

EPA set forth a two-step process to determine whether the new rule applies to a facility. See 40 CFR 118.3. Specifically, the owner or operator of a covered facility must assess two screening criteria and, if both criteria are met, then assess the ability of the facility to cause substantial harm to the environment through the application of the substantial harm criteria. If an owner or operator determines that the covered facility meets one of the substantial harm criteria, the owner or operator must prepare a hazardous substance FRP in accordance with the new regulations.

  • Initial Screening. These screening criteria are to be assessed concurrently, with no implied order of priority:
    1. Facility has a maximum quantity onsite of 1,000x the Reportable Quantity of CWA Hazardous Substances. The RQs published in 40 CFR Part 117 are based on a level of release of a hazardous substance that could potentially cause harm to waters. EPA’s decision to set the threshold criteria at 1000x rather than the initially proposed 10,000x the RQ represents a potentially significant expansion of the scope of the new rule.
    2. Facility is within 0.5 miles of navigable water or conveyance to navigable water.

If a facility meets the two screening criteria, it must undergo an evaluation to determine whether it meets the substantial harm criteria.

  • Substantial Harm Criteria. If the two screening criteria are met, the next step is a substantial harm evaluation, which includes determining whether the facility meets one of the following four substantial harm criteria:
    1. Ability to adversely impact public water system.
    2. Ability to cause injury to fish, wildlife, and sensitive environments.
    3. Ability to cause injury to public receptors.
    4. Has experienced a reportable discharge of CWA hazardous substances that reached navigable water within the last five years.

These criteria are easily triggered under the FRP process for oil, which preexisted the new rule. For instance, an “injury” means any measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly from exposure to a discharge or exposure to a product of reactions resulting from a discharge. 40 CFR 112.2.

If both screening criteria and one or more substantial harm criteria apply, the facility must prepare and submit an FRP to EPA that includes information on each CWA hazardous substance above the threshold quantity onsite. The owner or operator must assess all substantial harm criteria.

Amendments from the Proposed Rule

  • In the final rule, the Agency determined that a 1,000x RQ multiplier, instead of the proposed 10,000x, will more appropriately screen for covered facilities that could cause substantial harm to the environment from a worst-case discharge. In response to comments, EPA indicated that the screening criteria, in conjunction with the substantial harm criteria, will appropriately target covered facilities that could cause substantial harm to the environment from a worst-case discharge of a CWA hazardous substance into or on the navigable waters. This change in scope from the proposed rule will likely significantly broaden the number of locations that must now complete the new assessment process for CWA hazardous substances.
  • As the basis for assessing risk to the environment, the new rule requires the use of the volume by the maximum quantity onsite inventory of hazardous substances above RQs, rather than the maximum onsite container capacity. EPA made this change in the final rule based on its view that this approach will more accurately reflect the hazard posed and is consistent with how oil is measured and regulated.
  • Once a facility determines it meets one of the substantial harm criteria, the owner or operator must now develop an FRP for all, not just one, of the CWA hazardous substances onsite above the threshold quantity. EPA made this adjustment by recognizing that the response and/or recovery actions may vary widely depending on which substance is released. Thus, the FRP must include information on each hazardous substance onsite that is above the threshold quantity.
  • EPA added § 118.4(a)(6) to the final rule, which requires a covered facility owner or operator to review and recertify their plan Agency every five years. EPA decided that this will ensure the FRPs remain up-to-date and owners or operators remain informed of their responsibilities. This requirement is consistent with oil FRP requirements.
  • EPA also added § 118.4(a)(7), requiring a facility owner or operator to evaluate or re-evaluate operations whenever EPA adds or removes a CWA hazardous substance from the list at 40 CFR 116.4 or adjusts relevant RQs as found in 40 CFR 117.3. EPA reasoned that such adjustments are made through a formal notice and comment rulemaking procedure; thus, regulated entities will have notice of these changes prior to them becoming final and effective.

Implementation and Enforcement

Facility Response Plan preparation, submission, and implementation timelines are subject to the effective date and an initial 36-month implementation period. EPA included this implementation period to allow covered facilities time to familiarize themselves with the rule requirements and prepare their plans.

  • Initially-regulated covered facilities. The owner or operator of a non-transportation-related onshore facility in operation on November 30, 2026, that satisfies the applicability criteria must implement the requirements of the new regulations by June 1, 2027.
  • Newly-regulated covered facilities. The owner or operator of a non-transportation-related onshore facility in operation after November 30, 2026, that satisfies the applicability criteria must comply within six months.
  • Newly-constructed covered facilities. Covered facilities starting operations after June 1, 2027, must comply prior to the start of operations, including a 60-day start-up period adjustment phase.

Appeals

Similar to current regulations for Oil FRPs, a facility that believes it is not subject to the new rule may appeal a decision by the EPA Regional Administrator determining the potential or threat of substantial harm or significant and substantial harm from a facility or, in the case of an FRP that has been prepared, the Regional Administrator’s disapproval of a CWA hazardous substance FRP. If warranted, that decision can then be appealed to the EPA Administrator.

Petitions

The public and other government agencies may also petition EPA to determine whether a CWA hazardous substance-covered facility should be required to submit an FRP to EPA. Given the breadth of the new rule relative to the long list of hazardous substances and the 1000x RQ threshold, this public participation opportunity is a significant consideration for facilities that may already be under community scrutiny for other reasons.

© 2024 Beveridge & Diamond PC
For more news on Clean Water Act Regulations, visit the NLR Environmental, Energy & Resources section.

California PFAS Ban in Products: 6th Largest Global Economy Enters the Fray

We reported extensively on the landmark legislation passed in Maine in 2021 and Minnesota in 2023, which were at the time the most far-reaching PFAS ban in the United States. Other states, including Massachusetts and Rhode Island, have subsequently introduced legislation similar to Maine and Minnesota’s regulations. While we have long predicted that the so-called “all PFAS / all products” legislative bans will become the trend at the state levels, it is significant to note that California, the world’s sixth largest economy, recently introduced a similar proposed PFAS ban for consumer products.

The California proposed legislation, coupled with the existing legislation passed or on the table, will have enormous impacts on companies doing business in or with the state of California, as well as on likely future consumer goods personal injury lawsuits. The California PFAS ban must therefore not be overlooked in companies’ compliance and product development departments.

California PFAS Ban

California’s SB 903 in its current form would prohibit for sale (or offering for sale) any products that contain intentionally added PFAS. A “product” is defined as “an item manufactured, assembled, packaged, or otherwise prepared for sale in California, including, but not limited to, its components, sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.” It further defines “component” as “an identifiable ingredient, part, or piece of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.”

While the effective date of SB 903’s prohibition would be January 1, 2030, the bill gives the California Department of Toxic Substances Control (“DTSC”) the authority to prohibit intentionally added PFAS in a product before the 2030 effective date. It also allows DTSC to categorize PFAS in a product as an “unavoidable use”, thereby effectively creating an exemption to the bill’s ban, although California exemption would be limited to five years in duration. Similar carve outs were also included in the Maine and Minnesota bans. In each instance, certain information must be provided to the state to obtain an “unavoidable use” exemption. In California, an “unavoidable use” exemption would only be granted if:

  1. There are no safer alternatives to PFAS that are reasonably available.
  2. The function provided by PFAS in the product is necessary for the product to work.
  3. The use of PFAS in the product is critical for health, safety, or the functioning of society.

If a company sells a products containing PFAS in the state of California in violation of the proposed law, companies would be assessed a $1,000 per day penalty for each violation, a maximum of $2,500 per day for repeat offenders, and face possible Court-ordered prohibition of sales for violating products.

Implications To Businesses From The Minnesota PFAS Legislation

First and foremost of concern to companies is the compliance aspect of the California law. The state continues to modify and refine key definitions of the regulation, resulting in companies needing to consider the wording implications on their reporting requirements. In addition, some companies find themselves encountering supply chain disclosure issues that will impact reporting to the state of California, which raises the concern of accuracy of reporting by companies. Companies and industries are also very concerned that the information that is being gathered will provide a legacy repository of valuable information for plaintiffs’ attorneys who file future products liability lawsuits for personal injury, not only in the state of California, but in any state in which the same products were sold.

It is of the utmost importance for businesses along the whole supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds. While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. Regulators at both the state and federal level are setting drinking water standards and notice requirements of varying stringency, and states are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.

©2024 CMBG3 Law, LLC. All rights reserved.
For more news on PFAS Ban in California, visit the NLR Environmental, Energy & Resources section.

EU to Ban Carbon Offset Claims Entirely?

Responding to pressure from activists who have argued that “[c]arbon neutral claims are greenwashing, plain and simple,” the European Parliament and Council have reached a provisional agreement to ban all carbon-neutral claims in member states. If the Parliament approves the deal, member states will have 24 months to enact legislation to implement it. So, a new set of laws could become effective in 2026. Corporations will have some lead time to come into compliance.

The EU provisional agreement, if made final, will be the latest blow to carbon neutrality claims and is particularly unfortunate in not distinguishing between credible and non-credible offsets. This could also hurt voluntary carbon markets, which have been jarred by the recent demise of the giant, offset-producing African Kariba Project.

Commentators have also speculated that the EU Parliament and Council action is an effort to “put a thumb on the scales” of the FTC Green Guides revision process, currently underway in the United States. If the FTC were to follow suit, carbon reforestation projects worldwide could be jeopardized. Of course, the FTC is bound by the First Amendment and would be reluctant to “ban” a statement. However, it could erect onerous substantiation and disclosure requirements that render such claims much more difficult to make.

The ill-fated Kariba Project has become an unfortunate bellwether for carbon neutrality claims based on credits generated from reforestation or forest preservation. The episode may say more about financial speculation in carbon markets than it does about the science of reforestation. Replanting trees is a surefire way to sequester carbon – at least for a while – and financial incentives to do so should be encouraged, not discouraged.

These realities aside, the clear upshot is that carbon neutrality claims are increasingly under attack by activists who seemingly lump all carbon offsets together as “harmful” – whether generated by reforestation, carbon capture, or voluntary carbon reduction. That’s too bad, as any credible financial incentive to remove carbon from the atmosphere should be encouraged, if not financially incentivized. The role of independent certifiers is to ensure that the carbon offsets are real and not overstated. A flat ban seems counterproductive to environmental protection and greenhouse gas reduction.

The sad reality is that many companies will begin to migrate away from reliance on carbon offsetting. It is simply becoming too risky. Meanwhile, voluntary carbon trading markets will suffer greatly, and a crucial green development mechanism will be lost.

The sad reality is that many companies will begin to migrate away from reliance on carbon offsetting. It is simply becoming too risky.
©2023 Katten Muchin Rosenman LLP
by: Christopher A. Cole of Katten 
For more news on Carbon Offsetting in the EU, visit the NLR Environmental, Energy & Resources section.