By Pat Rizzuto March 29, 2021
Agency moving toward finalizing four PFAS rules. Attorneys predict more regulation, lawsuits coming.
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.
Enforcement Liability 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.
Emerging Rules The EPA declined interview requests but pointed to its recent activities on PFAS, including:
- its determination <www.federalregister.gov/documents/2021/03/03/2021-04184/announcement-of-final-regulatory-determinations-for-contaminants-on-the-fourth-drinking-water> to set drinking water limits for the two most well-recognized and toxic PFAS: perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA);
- a proposed rule <www.federalregister.gov/documents/2021/03/11/2021-03920/revisions-to-the-unregulated-contaminant-monitoring-rule-ucmr-5-for-public-water-systems-and> to require drinking water utilities to monitor 29 PFAS as unregulated contaminants; and;
- an advanced notice <www.federalregister.gov/documents/2021/03/17/2021-05402/clean-water-act-effluent-limitations-guidelines-and-standards-for-the-organic-chemicals-plastics-and> of proposed rule-making 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.
Source: Bloomberg Law By Pat Rizzuto March 29, 2021