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

U.S. EPA Announces Proposed Rule to Designate Certain Compounds as CERCLA Hazardous Substances, New Scientific Developments, and Consequences of U.S. EPA’s Drinking Water Health Advisories

Significant new developments regarding per- and polyfluoroalkyl substances (PFAS) contamination have been announced in recent weeks. The headline federal development occurred on August 26, 2022, with the US Environmental Protection Agency’s (EPA) proposal to designate the PFAS compounds perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Also, following the release of new drinking water health advisories by EPA in June 2022, new scientific studies have found that the problem of PFAS contamination is worse than previously believed. But, these studies also have pointed to potential remedial solutions. Although regulation of PFAS has gradually increased at the federal and state levels, the absence of comprehensive federal regulation has continued to engender disputes concerning the cleanup of PFAS contamination.

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.

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

On October 18, 2021, the US Environmental Protection Agency (EPA) announced its PFAS Strategic Roadmap (Roadmap or Plan), the agency's new approach to comprehensively addressing the threat to public health and the environment from per- and polyfluoroalkyl substances (PFAS). In issuing the Roadmap, EPA has segued from the prior administration's PFAS Action Plan to implementing the agency's new PFAS playbook developed since the Biden administration came into office. While the Roadmap describes a potentially sweeping array of new studies, test protocols, regulations, and other proactive measures, many of the most critical ones are not expected to be completed or come to fruition before mid-2022, continuing the pattern of the federal government's slower pace than a number of states in addressing PFAS risks.

Authors: Jeffrey Karp and Edward Mahaffey, Sullivan & Worcester LLP; Graham Ansell, PhD and Brett Winters, PhD, GSI Environmental, Inc.

Section 7361 of the National Defense Authorization Act ("NDAA") for Fiscal Year 2020 requires the US Environmental Protection Agency (EPA) to "publish interim guidance on the destruction and disposal of perfluoroalkyl and polyfluoroalkyl substances and materials containing perfluoroalkyl and polyfluoroalkyl substances," reflecting increasing concern about the human health risks posed by these substances, commonly known as PFAS. On December 18, 2020, the EPA issued the interim guidance document, on which it will accept public comments until February 22, 2021.[1] However, as discussed below, the guidance appears to be prematurely issued, given EPA’s uncertainty throughout in advising on the likely efficacy of various PFAS disposal and destruction methods.

Co-authored by Jeffrey Karp and Edward Mahaffey

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are found in firefighting foam used by the military since the 1970’s for training exercises and to extinguish liquid and gas fires. These compounds are part of a larger class of toxic chlorinated chemicals called per- and polyfluoroalkyl substances (PFAS). Similarly, airports and municipal fire departments have used the aqueous film forming foam (AFFF) for decades to extinguish fires caused by flammable liquids.[1]

Firefighting foams are divided mainly into two classes. Class A foams are used to fight wildfires and structural fires. Class B foams are used to extinguish fires caused by flammable liquids. While not all Class B fire extinguishing agents contain PFAS, all AFFF does, and AFFF has special characteristics that make it difficult to find adequate replacements. When mixed with water, AFFF produces an aqueous spreading film that extinguishes burning hydrocarbon fuel and prevents reignition by cutting off oxygen from the fuel source.[2]

Co-authored by Edward Mahaffey and Jeffrey Karp

By Jeffrey M. Karp, Edward Mahaffey and Graham Ansell

Despite extensive negotiation, insufficient bipartisan support was garnered to obtain inclusion of robust PFAS provisions in Congressional year-end spending legislation. Initially, there was some expectation that U.S. EPA might be directed in the National Defense Authorization Act (NDAA) to establish maximum contaminant levels (MCLs) for per- and polyfluoroalkyl substances (PFAS) in drinking water, and/or to designate PFAS as hazardous substances under CERCLA, but those proposals were not included in the legislation. In the absence of a Congressional mandate or U.S. EPA regulatory action establishing enforceable clean-up standards, states concerned about the potential negative health effects of exposure to PFAS compounds have taken matters into their own hands. As discussed, to fill the federal government void, states have set MCLs for certain PFAS compounds in drinking water, required testing of water systems and publication of results, and established remediation requirements for certain PFAS compounds in groundwater and surface water.

By Jeffrey M. Karp and Edward Mahaffey

This posting provides an update on PFAS developments involving federal legislative and regulatory activities.

Congress

On November 6, 2019, a panel of experts at a congressional briefing sponsored by the Endocrine Society and the NIH’s National Institute of Environmental Health Sciences warned that PFAS may contribute to obesity, osteoporosis, and thyroid dysfunction, while acknowledging that more study is needed of possible links.[1] The briefing reflected a continuing congressional interest in potential PFAS health impacts, as seen in the 13 PFAS-related bills approved by the US House of Representatives’ Subcommittee on Environment and Climate Change,[2] as well as the inclusion of funding for PFAS-related activities on military bases in House[3] and Senate[4] appropriation bills.

As of November 18, 2019, no further action has been taken on any of these bills.  However, at the request of members of Congress the Defense Department’s Inspector General agreed to examine the military’s use of PFAS in materials such as firefighting foam,[5] and to complete the investigation by January 2020.[6]

By Jeffrey Karp, Maxwell Unterhalter, and James Wilhelm

Recently, we have addressed the evolving regulatory landscape for per- and poly-fluoroalkyl substances (PFAS), as the federal and state governments grapple with finding the best approach to handle PFAS releases from manufacturing facilities, fire and crash training areas, and industrial and municipal waste disposal sites into soil, groundwater, and drinking water systems. A growing awareness of PFAS persistence and the possible negative health effects at low levels in the environment also has resulted in an increasing number of lawsuits against manufacturers and distributors of PFAS and other potentially liable parties. This article discusses how scientific studies on PFAS toxicity and potential endangerment to human health and the environment have influenced such litigation.

Massachusetts Proposes New PFAS Regulations as States Tackle Contamination

By: Jeffrey Karp, Victor Baltera, Aaron Staudinger, and Maxwell Unterhalter

As in previous postings, we discuss recent state regulatory initiatives aimed at addressing groundwater and drinking water contamination by per- and polyfluoroalkyl substances ("PFAS"). PFAS are a group of synthetic chemicals that have been used widely in consumer and industrial products since the 1940s. Major applications have included coatings for paper and cardboard packaging products, carpets, textiles with water and oil repellency, non-stick surfaces, and firefighting foams. Due to their chemical structure, PFAS stay in the environment for a long time and do not degrade easily. PFAS have been detected in air, surface water, groundwater, drinking water, and soil.[1] They even have been found in grocery store items, such as meat, fish, dairy, and prepared chocolate-cake.[2] The widespread use and persistence of PFAS in the environment, together with growing evidence that low-level exposure may lead to adverse health effects, has increased concerns about safe levels of human exposure to PFAS.[3] In response, many more state and, to a lesser extent, federal initiatives have been undertaken to regulate PFAS. As discussed below, recently the Massachusetts Department of Environmental Protection (the "MassDEP") has proposed to regulate PFAS within the framework of the Commonwealth’s Massachusetts Contingency Plan.