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‘Buckle Up’ for PFAS Regulation, Litigation in 2022, Lawyers Say

Dec. 29, 2021, 11:00 AM

Industries are advised to brace for more federal moves next year to reduce and control “forever chemicals,” including plans by the EPA to propose water and waste regulations for two per- and polyfluoroalkyl substances, or PFAS.

The Environmental Protection Agency also will be gathering data on other types of PFAS in 2022 that could shape future regulations. Meanwhile, states are expected to take steps to eliminate uses of PFAS and the volume of them that goes up smokestacks, into water, and onto land, attorneys say.

“There will be more change on the regulatory front than we have had in a long time, and fairly significant regulatory change,” said Ashley Peck, a partner specializing in water issues at Holland and Hart LLP. “My advice for water utilities is to buckle up and pay attention.”

Other industries including many different types of manufacturers and companies that import products ranging from cables to computers to cars also could be pulled into the regulations the EPA is developing.

And to move the ball quicker, environmental and consumer groups plan to target retailers asking them to stop selling cosmetics, textiles, and some other products made with PFAS.

‘So Much Litigation’

EPA’s PFAS Strategic Roadmap details dozens of regulatory, research, and technological commitments it will be taking in 2022 and beyond to address what it described as “an urgent public health and environmental issue facing communities across the United States.”

Some of the chemicals, which are used to make thousands of industrial and consumer products, can linger for decades in the environment and people’s bodies.

Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) will be the target of EPA rules in 2022, including a proposed rule in spring, designating them as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, known as the Superfund program.

That designation, if finalized, would require companies and federal facilities to report releases of PFOA and PFOS above a certain threshold, trigger cleanups, and require responsible parties to pay for cleanup.

The possibility already is affecting corporate discussions about buying and selling property, said Michael Blumenthal, an attorney with McGlinchey Stafford PLLC and former environmental prosecutor for Ohio. Purchasers are investigating whether a company or property they might buy has used or disposed of PFAS before deciding whether to buy them, he said.

Some EPA regional offices also are suggesting that parties responsible for Superfund cleanups consider getting ahead of the curve and finding out whether PFAS are contaminants they’ll have to deal with, Blumenthal said.

For example, he’s working with a group of companies that are preparing a remediation plan for an East Coast Superfund site. They’re discussing whether to examine their own corporate history with PFAS and test the site for the chemicals, he said. That could be more expensive in the short run but cheaper than redoing the plan or even reopening a cleaned up site in the long run, he said.

If PFOA and PFOS are deemed hazardous waste, Blumenthal said closed Superfund sites could be reopened and “landfills will have no choice but to go after industries that contributed the chemicals,” to their site.

“There will be so much litigation,” he said.

In addition to Superfund, the EPA will be working in 2022 on a proposal to designate PFOA, PFOS, perfluorobutane sulfonic acid (PFBS), and the GenX chemicals—officially called hexafluoropropylene oxide (HFPO) dimer acid along with its ammonium salt—as hazardous wastes regulated under the Resource Conservation and Recovery Act.

That rule, which the EPA plans to propose in 2023, would set disposal requirements for the chemicals and wastes containing them. RCRA rules, however, don’t trigger the extensive litigation that Superfund regulations do.

‘Difficult’ Water Situations

Meanwhile, attorneys will watch to see what limits the EPA places on PFOA and PFOS in drinking water, said Ally Cunningham, a partner at Lathrop GPM in Kansas City who works with water utilities.

If EPA designates PFOA as a likely carcinogen, as proposed, it would mean any amount poses a risk, triggering significant litigation and liability challenges, she said.

Cunningham is concerned that the EPA’s science advisers will recommend drinking water goals in the parts per quadrillion concentration— below most laboratories’ detection limits. Those goals could lead to enforceable limits that are unachievable or unaffordable, she said.

“Water utilities will be left in a difficult, if not impossible, situation of trying to identify different sources of drinking water that meet these incredibly low levels for PFAS or scrambling to find treatment technology that can remove PFAS” to the required limit, she said.

By spring, the agency also plans to issue health advisories for PFBS and the GenX chemicals. Health advisories are non-enforceable, yet they drive local and state policies, said Steve Via, the director of federal relations for the American Water Works Association.

That can put water utilities in difficult situations because advisories don’t include information such as details on cleanup technologies that could achieve the health recommendations, he said.

The upcoming year also will bring to trial the first three bellwether cases—all involving water districts—that are part of a broader multi-district litigation case involving cleanup, personal injury, and other allegations against companies involved with specialized firefighting foams, aqueous film-forming foams containing PFOA or PFOS.

‘Significant’ Commerce Rule

Companies will have report which PFAS they’ve made, imported, used, and disposed since Jan. 1, 2011 if the EPA, as planned, issues a final rule in 2022.

The rule could apply to imported goods, like cars and computers, that have parts made with the chemicals, depending on the EPA’s final language.

Gathering such information would be a new and possibly burdensome task to small companies that are tucked away in a supply chain, said Jay West, a senior director at the American Chemistry Council (ACC), which represents chemical producers.

ACC will reach out to the many industries that depend on the chemicals to help them understand the coming regulations, said Steve Risotto, another senior council official.

Yet the rule is “one of the most significant” actions any federal agency is taking and will help fill an enormous knowledge gap, said Daniel Rosenberg, an attorney with the Natural Resources Defense Council.

‘Retail Regulation’

Consumer groups say they plan to keep up the pressure on what chemical manufacturers and their attorneys have dubbed “retail regulation.”

Corporate policies such as McDonald’s Corp. and Wendy’s Co. decisions to phase PFAS out of food packaging create new markets for alternative products and help regulators realize change is possible, said Mike Schade, campaign director for Mind the Store.

“The more retailers restrict PFAS, the more politically palatable that becomes at state and federal level,” said Schade voicing a perspective Bloomberg Law has heard from state legislators.

Mind the Store plans to focus on getting PFAS out of cosmetics, building materials, outdoor apparel in 2022.

“Retailers are on the front lines of consumer discontent,” because when people learn forever chemicals are in the products they buy, they don’t want them, Schade said. That makes retailers a “point of vulnerability for the chemical industry,"he said.

With assistance from Bobby Magill and Andrew Wallender.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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