Chemical Currents provides real-time updates, legal observations, and actionable tips to navigate the constantly evolving legal challenges involving PFAS. In this edition we highlight recent EPA activity, discuss growing litigation involving apparel manufacturers, inform readers about the certification of a class in New Jersey state court, review the European Commission’s recently issued Restrictions Roadmap, note how EPA’s proposed rule banning chrysotile asbestos raises unusual PFAS concerns, and invite readers to our upcoming PFAS webinar.
Look for new editions approximately every two weeks and please feel free to reach out to the King & Spalding team if you have any questions regarding PFAS issues.
Recent EPA Activity
EPA Announces Three Clean Water Actions In April 2022
Last month, EPA made three PFAS/Clean Water Act-related announcements.
First, EPA issued proposed draft Clean Water Act aquatic life criteria for PFOA and PFOS. The proposed draft includes the most up-to-date scientific knowledge regarding the effects of PFOA and PFOS on freshwater organisms, quantifies the toxicity of each chemical to aquatic life, and proposes criteria to protect aquatic life from acute and chronic effects from each chemical. The draft criteria will be open for public comment for thirty days following the publication of these proposed drafts in the Federal Register, which should occur imminently.
Second, EPA issued a memorandum outlining its plan to restrict PFAS discharges into water bodies under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES). EPA plans to require PFAS monitoring, best management practices such as product substitution, and public notice expectations in connection with federally-issued permits. EPA will also use the NPDES program to obtain comprehensive information on sources and quantities of PFAS discharges to help guide future actions under its Effluent Limitation Guidelines.
In effect, this means that manufacturers in the industries targeted—organic chemicals, plastics & synthetic fiber users and manufacturers; metal finishing; electroplating; electric and electronic component makers; landfills; pulp and paper manufacturers; leather producers; plastics molders; textile mills; paint manufacturers; and airports—will need to implement new best management practices for handling PFAS discharges into water, as well as increased monitoring and reporting of such discharges. EPA will also continue to increase the amount of PFAS data
Third, EPA’s Office of Water put forward a new draft method to measure Adsorbable Organic Fluorine in water samples using combustion ion chromatography (draft EPA method 1621). It detects organofluorines (molecules with a carbone-florine bond), which can be found in thousands of known PFAS compounds as well as non-PFAS chemicals such as pesticides. For now, this has been designated as a screening method given that it has different levels of accuracy for some organofluorines versus others as well as the fact that there are some interferences including solvents, reagents, glassware, or plasticware.
For now, the draft method has gone through single-laboratory validation, with multi-laboratory validation planned for this summer. EPA’s Office of Water is encouraging review, use, and comment on the method as it works towards finalizing.
EPA Receives Objection To Proposed Adoption Of ASTM’s Updated Phase I Guidance
As our loyal readers know, in January ASTM International revised its Standard Practice for Phase I Environmental Site Assessments (Phase I) to address PFAS as a “non-scope” consideration. (As a reminder, “non-scope” considerations include issues that an environmental investigator is not explicitly required to investigate in a standard Phase I assessment, but that could give rise to business environmental risk and can be investigated as part of the Phase I assessment if desired.) EPA then published a direct final rule on March 14, 2022 that would formally recognize ASTM’s update as an EPA-approved standard, allowing its use to satisfy conducting inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). However, on April 13, 2022, U.S. Chamber of Commerce objected to EPA’s direct final rule until PFOS and PFOA are formally designated as hazardous substances under CERCLA (discussed further here), given the potential risk of premature CERCLA liability for landowners and potential buyers. This objection may delay EPA’s adoption of ASTM’s updated Phase I guidance.
Apparel Companies Facing Increasing PFAS Litigation
Last week, we highlighted a wave of litigation targeting underwear manufacturers. This week, litigation activity is now focusing on outerwear. On April 25, 2022, the same firm behind several of the underwear complaints filed a complaint against an outerwear manufacturer in the Northern District of California (Lupia v. Recreational Equipment, Inc., 22-cv-2510).
This most recent complaint is nearly identical to the previously reported underwear complaint, seeking injunctive and monetary relief (including punitive damages) under various theories of liability, including breach of warranty, negligence – failure to warn, unjust enrichment, and various state consumer protection and fraud statutes.
We anticipate additional copycat cases in the near term, as several organizations have highlighted the potential presence of PFAS in apparel of all kinds—from face masks to footwear. Our team will also be covering these issues in depth during our next webinar—details follow below.
New Jersey Superior Court Certifies Classes In Drinking Water Class Action
As background, a water supply company in New Jersey issued two notices—one in October 2021 and the other in November 2021—to certain of its drinking water consumers that PFOA levels in their drinking water exceeded the state threshold of 14 parts per trillion. In light of the notice, the company advised consumers to install water filters or to use bottled water, and also instructed consumers with “specific health concerns, a severely compromised immune system,  an infant, [who] are pregnant, or are elderly” to seek their health care provider’s advice. Unsurprisingly, a state court class action followed quickly in late 2021, with plaintiffs seeking medical monitoring, as well as a variety of damages including reimbursement for costs incurred in responding to the notices as well as the costs of medical evaluation, medical advice, bottled water, and water filters.
On April 21, 2022, Judge Michael A. Toto of the Middlesex County Superior Court certified five classes in the matter:
Public water consumers who received the October 2021 notice;
Public water consumers who received the November 2021 notice;
Public water consumers whose drinking water is provided by the water supply company but not receive either of the above two notices;
Public water consumers who received either of the two notices and also have an infant; and
Public water consumers who received either of the two notices and, at the time the notice was received, had “specific health concerns, a severely compromised immune system, have an infant, are pregnant, or are elderly” and have or will incur medical expenses because they have or will follow the water supply company’s notice instruction to seek their health care provider’s advice.
We will continue to follow this case as it moves forward in New Jersey.
European Commission Includes PFAS In Its Ambitious “Restrictions Roadmap”
Back in October 2020, the European Commission (EC) issued its Chemicals Strategy for Sustainability to achieve a “toxic-free environment” as part the European Green Deal. On April 25, 2022, EC staff released a Restrictions Roadmap, which outlines objectives for regulating broad categories of chemicals through collaboration between EC, European Chemicals Agency, and member states. The Roadmap prioritizes specific chemical groups for further regulation, with the highest priority chemical groups added to a “Rolling List.” PFAS chemicals as a group have been included on this Rolling List after several member states determined that this class of chemicals is confirmed or suspected to be hazardous as: (i) persistent, bioaccumulative, and toxic; (ii) very persistent and very bioaccumulative; (iii) persistent, mobile, and toxic; and (iv) reproductively toxic. EC’s staff’s announced goal is to invite comment and input on the chemicals on the Rolling List with an eye towards eventually updating the EC’s Reach Regulation to address the proposed new approaches to chemical regulations by 2027.
EPA’s Proposed Rule Banning Chrysotile Asbestos Raises Unusual PFAS Concerns
On April 5, EPA announced a proposed rule under the Toxic Substances Control Act to ban the manufacturing, processing, import, and distribution of chrysotile asbestos, including for use in the chlor-alkali industry (which manufactures chlorine and sodium hydroxide). At the same time, EPA acknowledged that such a ban may lead to chlor-alkali plants replacing their current chrysotile asbestos diaphragm cells with membrane cells, which reportedly contain an increased concentration of PFAS compounds in comparison to the chrysotile asbestos-containing counterparts. Thus, before moving forward with its outright ban on chrysotile asbestos use in the chlor-alkali plants still using asbestos diaphragms, EPA requested “public comment with monitoring data and other information that would allow the Agency to assess how a transition away from asbestos containing diaphragms may affect exposures to PFAS released by chlor-alkali facilities.” At least one advocacy organization seeking to ban all uses of asbestos in the United States has
criticized the rule, arguing that chlor-alkali producers should not be exempted just because of the uncertainties in whether transition to membrane cells will actually increase potential PFAS contamination, and further suggesting that any such concerns are overstated due to the decreased replacement frequency of the membrane cells compared with the asbestos-containing versions.
Upcoming King & Spalding Webinar
King & Spalding To Host Additional PFAS Webinar
On May 17 from 12-1:15 pm ET, King & Spalding will host the second installment of its PFAS webinar series. The upcoming session is titled “How PFAS Legal Issues Impact Companies in Real Life: Representative Case Studies” and will use representative case studies from both the apparel and food & beverage sectors to illustrate the wide range of PFAS related legal challenges that companies in virtually any industry can face. Please register by May 10 here.
What We Are Reading Now
Massachusetts’ PFAS Interagency Task Force Releases Its Final Report Outlining Its Recommendations To The State, Including, Among Other Actions, Supporting Environmental Justice Communities, Phasing Out PFAS In Consumer Products, and Expanding PFAS Regulation.