Industry attorneys say they’re bracing for a wave of corporate liability and litigation as the Biden administration works swiftly to fulfill a campaign promise to control “forever chemicals.”
The Environmental Protection Agency this month announced it’s working on three water-related regulations for per- and polyfluoroalkyl substances, or PFAS. It sent a fourth chemical data-collection proposal to the Office of Management and Budget, or OMB, for approval.
In the near future, the agency is likely to list some or all PFAS as hazardous waste, triggering cleanups and financial obligations for companies nationwide, attorneys counseling chemical and other manufacturers said.
One of the the four regulations the EPA announced would provide a needed, national drinking water limit for two PFAS, said Robert J. Simon, a vice president at the American Chemistry Council. He said the others would help the agency determine whether controls are needed for additional PFAS, and when.
More regulation “increases potential enforcement liability for manufacturers across the country making PFAS and using them,” Eric Gotting, a partner with Keller and Heckman LLP, who specializes in litigation.
“It may also give fodder to the plaintiffs bar to cite to those regulations in tort suits,” he said.
Industries making products with PFAS and manufacturers in states such as Kansas and Missouri that haven’t focused on the chemicals likely will face new liabilities and lawsuits, said Allyson Cunningham, a partner in the environmental and tort practice group in Lathrop GPM LLP’s Kansas City, Mo., office.
Even before the coming regulatory wave, her law firm has seen “more and more lawsuits against companies that have used PFAS in their production process,” she said.
The EPA declined interview requests but pointed to its recent activities on PFAS, including:
- its determination to set drinking water limits for the two most well-recognized and toxic PFAS: perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA);
- a proposed rule to require drinking water utilities to monitor 29 PFAS as unregulated contaminants; and;
- an advanced notice of proposed rulemaking to collect effluent discharge information from chemical, plastic, textile, food packaging, and other manufacturers known to make or use PFAS.
Those rulemakings began under the Trump administration, so they show actions it delayed rather than the new administration’s initiatives, said Elizabeth “Betsy” Southerland, a retired a 30-year EPA veteran and former Office of Water science and technology director.
But the EPA sent a fourth proposed rule to the OMB on March 1—earlier than environmental organization attorneys said they expected.
The proposed rule would enact a section of the 2020 National Defense Authorization Act that required the agency to issue a particular Toxic Substances Control Act (TSCA) rule that would order chemical manufacturers to submit information about PFAS they made or imported since Jan. 1, 2011.
The information the EPA could collect includes the identities and volumes of PFAS, how they’ve been used, any PFAS byproducts, and number of exposed workers.
The proposed rule could generate a lot of information useful for other regulatory efforts, said David Lennett, a senior attorney with the Natural Resources Defense Council.
For example, the data it would collect—combined with the information from water utilities through the unregulated contaminants monitoring rule—would help to clarify possible sources of the 29 PFAS, said Chris Moody, regulatory technical manager at American Water Works Association (AWWA).
That’s why the association, which represents drinking and wastewater utilities, asked the Biden administration to issue the TSCA rule quickly, Moody said.
Billions of Dollars
Another rule that Cunningham predicts the EPA will issue would designate at least some PFAS as hazardous substances. That designation would trigger increased liabilities and litigation due to the Superfund law’s extensive cost recovery mechanisms, she said.
The EPA can seek to recover costs for planning and implementing hazardous waste cleanups, waste investigations and monitoring, and contractor costs, according to its website.
Water utilities already face anywhere from $3 billion to an excess of $38 billion to remove just two types of PFAS—PFOA and PFOS—from drinking water, Moody said. That doesn’t include the costs of managing water remediation equipment, biosolids, or other materials as hazardous wastes due the presence of PFAS, he said.
Beyond potential costs, utilities are preparing to face a public that’s worried about PFAS in their water and asking questions with few answers, Moody said. EPA has readily available information for only two of the 29 PFAS listed in the proposed monitoring rule, he said.
What’s known about PFAS now is raising public concerns, Moody said, including links to health problems such as higher cholesterol, decreased vaccine effectiveness, and cancer, according to the Centers for Disease Control and Prevention.
‘Every Dollar Spent’
The EPA has seven more PFAS health effects analyses underway, and other agencies have some information, he said. But the EPA needs to do more, Moody said.
Utilities need to better understand the science on PFAS, so they can answer the public’s questions and address demands to reduce concentrations of more PFAS if monitoring detects them, he said.
“AWWA’s stance is always to follow the science,” Moody said. But, he said, “water systems are faced with a lot of other issues. We need to make sure every dollar spent is another dollar going toward public health.”
EPA said by email that it’s “committed to taking action to better understand and ultimately reduce the potential risks caused by these chemicals.”
The EPA must use more of the regulatory tools available to both get the information it needs and prevent problems from getting worse, attorneys representing environmental groups said.
Robert Sussman, the principal with Sussman and Associates, which represents Safer Chemicals Healthy Families, urged the agency to limit environmental releases of PFAS and the entry of more PFAS onto the marketplace.
Just this month, an EPA Federal Register notice showed it approved a new PFAS and a new use of an existing one of these chemicals. A coalition of 18 environmental health groups sent the EPA’s chemicals office a letter March 26 asking it to stop approving new PFAS and revise certain assumptions it makes to better protect workers who could be exposed to them.
Sussman also said it should collect more information about PFAS being produced now; gather more data on the chemicals’ release into the air, water, and land; and require PFAS manufacturers to provide the EPA with their methods for detecting the chemicals.
“We are allowing companies to put these chemicals into the environment” and that has to be stopped, Lennett said. “PFAS are a big public health crises facing our country.”