PFAS Update July 2022: Lawsuits, Biosolids Regulation, and New Drinking Water Health Advisories

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

While the federal government still has not comprehensively addressed per- and polyfluoroalkyl substances (PFAS) contamination, important PFAS-related developments have occurred on three fronts recently. As litigation against PFAS manufacturers continues, its targets and legal theories have broadened. The Commonwealth of Massachusetts filed a new case in May 2022. Also, in March 2022, a federal district court judge ruled in a putative class action lawsuit that a chemical supplier had a duty to third parties under Georgia law. Some state governments have adopted new PFAS regulations, increasingly targeting contamination of biosolids and wastewater. And, although the Environmental Protection Agency (EPA) has not yet issued a binding regulation limiting PFAS in drinking water, its new drinking water health advisories indicate that the agency considers two types of PFAS to be a health risk at much lower concentrations than it previously believed.

Litigation

Massachusetts

On May 25, 2022, the Commonwealth of Massachusetts sued thirteen companies, including 3M and DuPont, the two main targets of PFAS lawsuits.[1] The lawsuit alleged violations of the Safe Drinking Water Act and Massachusetts Consumer Protection Act, design defect, failure to warn, negligence, public nuisance, and trespass.[2] Moreover, the Commonwealth alleged that various transfers of assets involving DuPont’s merger with Dow, restructurings, and the spinoff of Chemours were fraudulent; thus Massachusetts also sued Chemours, Corteva, and both “Old DuPont” and “New DuPont” under the Massachusetts Uniform Fraudulent Transfer Act.[3]

The factual allegations in the complaint discuss the effects of PFAS-containing firefighting foams (aqueous film forming foam, or AFFF), which, according to the complaint, contaminated the Commonwealth’s groundwater, surface fresh water, coastal zone, estuaries, sediments, soils, submerged land, plants, and animals.[4] The complaint further accuses the defendants of having “concealed the true nature of PFAS” even after they “fully understood the toxicity” of the substances.[5]

Georgia

In the Northern District of Georgia, an intra-district split has emerged among federal judges on a question of Georgia state law involving supplier liability for harm caused by the contamination of state waters from the use and disposal of PFAS in the manufacture of carpets. Judge Amy Totenberg had held that Georgia law imposes no duty on a chemical supplier “to protect an unknown third-party, rather than its consumer, from harm resulting from the negligent use or disposal of the chemical.”[6] Judge Thomas W. Thrash Jr., in a March 30, 2022 ruling, held that “a duty arose where the Manufacturing Defendants continuously supplied PFAS to” another defendant “with knowledge that the chemicals were unlikely to be made reasonably safe in their regular use and could foreseeably contaminate surface waters and downstream water supplies.”[7] On June 28, 2022, he rejected a motion by the defendant Daikin America, Inc. to certify the question to the Georgia Supreme Court because “the concept of supplier negligence has been deeply rooted in Georgia law,” rather than his earlier ruling being “the product of mere guesswork.”[8]

Multi-district Litigation

Meanwhile, pretrial proceedings continue in the massive AFFF multi-district litigation in the District of South Carolina, with the first trial scheduled for March 2023. Depositions of expert witnesses are ongoing, with a completion deadline of July 28, 2022.[9]

States Lead the Way on Biosolids and Wastewater

Biosolids are sewage sludge, a product of the wastewater treatment process. When properly applied to land, they can “provide a number of benefits including nutrient addition, improved soil structure, and water reuse,” according to EPA.[10] Due to the potential risks of pollution from contaminated or improperly managed biosolids, EPA imposes regulations, which it reviews every two years, on pollutants in biosolids.[11]

EPA is considering regulation of wastewaters and biosolids containing PFAS, but even if it does, the regulatory process would take years to complete. In the meantime, some states have begun to take action. Maine passed a law banning land application of biosolids containing PFAS in April 2022.[12] Michigan set limits on the concentration of PFAS in biosolids that can be applied to land in 2021; the standards became stricter on July 1, 2022, decreasing from 150 parts per billion of perfluorooctanesulfonic acid (PFOS) to 125 parts per billion.[13]

EPA Actions

Lately, EPA has taken a few noteworthy PFAS-related actions of its own.

TSCA Test Order

On June 6, 2022, EPA released its first Toxic Substances Control Act (TSCA) test order under the PFAS testing strategy it announced in October 2021. The test order is for 6:2 fluorotelomer sulfonamide betaine, a component of firefighting foams and of some floor finishes.[14] Such orders are intended to gather data that can inform regulation. Because test orders place the burden on the companies that manufacture or process the substance to perform the testing, section 4 of TSCA places procedural hurdles to EPA issuing them.[15]

The sheer number of different PFAS makes it impractical to test each substance individually.[16] Thus, EPA’s specific plan for testing involves grouping similar PFAS compounds into categories and identifying candidate categories for which to issue testing orders.

Drinking Water Health Advisories

On June 15, 2022, EPA released drinking water health advisories for four types of PFAS. Two of the advisories were long-awaited updates of previous health advisories for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) to reflect the latest science and input from the EPA’s Science Advisory Board.

These new drinking water health advisories warn that PFOS and PFOA may cause a health risk at much lower concentration levels (0.004 parts per trillion (ppt) for PFOA, and 0.02 ppt for PFOS), than EPA’s 2016 health advisories (70 ppt threshold for PFOS and PFOA combined).

The other new health advisories were the first issued by EPA for perfluorobutane sulfonic acid and potassium perfluorobutane sulfonfate (together PFBS), and what are known as GenX chemicals. These compounds are considered substitutes for PFOS and PFOA, respectively. The safety triggers in these health advisories were set at 10 ppt for GenX and 2000 ppt for PFBS.[17]

On the same day, the agency announced a $1 billion program of grants to states and territories under the Bipartisan Infrastructure Law to address PFAS contamination in drinking water, in addition to the existing funding available to states from the Drinking Water State Revolving Funds and Clean Water State Revolving Funds.[18]

While health advisories are not themselves enforceable, the new PFOS and PFOA health advisories suggest that EPA will regulate those substances more strictly than previously expected. However, EPA is not expected to set maximum contaminant levels (MCLs) for those compounds at concentrations as low as its new health advisories. EPA has acknowledged that the health advisory levels for PFOA and PFOS are so low that they cannot be measured using present-day analytical methods. The new advisories are “below the level of both detection (determining whether or not a substance is present) and quantitation (the ability to reliably determine how much of a substance is present).” The lowest concentration of PFOS or PFOA reliably measurable in drinking water is 4 ppt.[19]

The immediate implications of the new health advisories for PFAS cleanup, especially at the hundreds of contaminated military bases, are unclear. Previously, the military has referenced EPA’s PFOS and PFOA health advisories of 70 ppt to justify not applying stricter state standards when cleaning up contaminated sites.[20] The new health advisories for PFOA and PFOA may increase pressure on the military to remediate contaminated groundwater at bases and surrounding communities to a stricter standard.

Regional Screening Levels and Removal Management Levels

Also, in light of the latest scientific data, EPA added five PFAS compounds – PFOS, PFOA, PFNA, PFHxS and HFPO-DA – to its list of regional screening levels (RSLs) and removal management levels (RMLs) on May 18, 2022.[21] RSLs are used to identify contaminated media, such as air, drinking water or soil, at a site or area that may require further investigation. If the concentration is above the screening level, further investigation usually is needed to determine if some action is required. RMLs are used to support EPA’s decisions, for example, to take a removal action under CERCLA,[22] such as providing an alternative drinking water source, if necessary.

EPA still expects to propose a PFAS National Drinking Water Regulation later in 2022 for PFOS and PFOA, and to finalize the rule by the end of 2023.[23] The agency also says it is considering targeting a broader range of PFAS, not only PFOS and PFOA. Many health advocates support this approach of targeting PFAS as a group because the sheer number of substances makes more granular regulation impractical.[24]

Legislative Proposals

Although Congress has not enacted significant legislation regarding PFAS, some notable legislative proposals are under consideration. The Biden administration’s proposed budget for fiscal year 2023 includes $126 million to EPA for PFAS research, regulation, and remediation.[25] The draft National Defense Authorization Act for fiscal year 2023, as reported on June 14, 2022, would require the Department of Defense to report regularly on the uses of PFAS it considers “essential” and the steps it has taken to reduce its use of PFAS.[26] The Clean Water Standards for PFAS 2.0, introduced by Sen. Kirsten Gillibrand (D-NY) on May 9, 2022, would set deadlines for EPA to establish “effluent limitations guidelines and standards” for several types of discharges of “each measurable perfluoroalkyl substance, polyfluoroalkyl substance, or class of those substances.”[27]

Next Steps

EPA has its own framework for further actions through 2024 under the National PFAS Roadmap announced on October 18, 2021. The agency’s planned actions during 2022 include both designating revivals of formerly abandoned uses of PFAS as “significant new uses” and improving PFAS reporting under TSCA, using an Effluent Limitations Guidelines program to restrict PFAS from industrial sources, proposing to designate some PFAS as hazardous substances under CERCLA, and proposing a national primary drinking water regulation for PFOA and PFOS.[28]

PFAS Update July 2022: Lawsuits, Biosolids Regulation, and New Drinking Water Health Advisories

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