When it comes to PFAS contamination liability, be proactive. That was one of several important messages conveyed at the Impact of PFAS on Environmental Litigation (Virtual) Conference hosted by Perrin Conferences, which Taylor Research Group (TRG) recently attended.
Readers familiar with TRG’s work will know that research into PFAS end-product usage and disposal has been one of our specialties for many years now. Yet within environmental law these chemicals—the best known and most infamous being PFOS and PFOA*—have existed in a sort of limbo. Present in seemingly innumerable water supplies and within the bloodstream of an estimated 99% of the American public, and linked by various studies to adverse health effects including cancer and developmental disorders, they nonetheless have never been regulated as hazardous substances by the federal government. While litigation related to PFAS contamination has been ongoing and expanding for some time, spurred primarily by drinking water limits and monitoring, this lack of hazardous substance classification has meant that the floodgates of PFAS litigation have yet to fully open. That, it appears, is about to change.
This photo shows sample bottles collected from the Kalamazoo River watershed for PFAS testing. Photo credit: Department of Environment, Great Lakes, and Energy (License).
In October 2021, the US EPA issued its PFAS Strategic Roadmap, charting the Biden Administration’s plans to address PFAS contamination. The Roadmap, which spans 2021-2024, takes a broad approach. In addition to remediation actions, it calls for expanded research and testing and efforts to stop further PFAS product wastes from entering the environment. Not limited to PFOS and PFOA, the Roadmap calls for research into additional PFAS chemicals of concern, including GenX—a set of chemicals intended to replace PFOA but found by the EPA to be even more toxic.
This photo shows the Cape Fear River in North Carolina, which was found to contain GenX in 2016. Photo Credit: North Carolina Health News (License)
The Roadmap is expected to broaden regulations, with the single most important step likely being the designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In fact, on January 10, 2022, the EPA submitted a proposed rule to that effect to the Office of Management and Budget (OMB). The designation of PFOS and PFOA as hazardous substances is expected to be finalized in the summer of 2023.
Arguably, 2023 is the key year within the Roadmap, as by year’s end the EPA also expects to require additional PFAS data reporting under the Toxic Substances Control Act (TSCA), improve PFAS reporting through the Toxics Release Inventory (TRI), and at last establish a national drinking water regulation for PFOS and PFOA, among other goals. However, it is the CERCLA language that is making the biggest waves, as it would almost certainly lead to new Superfund sites (and reevaluation of existing sites) and cost-recovery claims.
Presenters at the conference warned of significant new liabilities as a result of these expected changes, as additional enforcement actions are taken against those who have manufactured PFAS (or have utilized PFAS in manufacturing), end-users, and disposers of the chemicals. TRG’s team of environmental professionals and historians can help companies and their legal representatives as they seek to fully understand their risk. In addition to our past work on PFAS, we possess decades of experience researching the historical usage and disposal of hazardous substances such as PCBs, asbestos, lead, arsenic, trichloroethylene (TCE), trichloroethane (1,1,1 TCA), and methyl tertiary-butyl ether (MTBE), and our work has helped our diverse array of clients to better understand their potential liability for environmental and product liability claims.
Stay tuned for the next post in our PFAS series in which we reflect on new developments in PFAS regulation. Next week, we will revisit the military’s role in PFAS usage and contamination.
* perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA)