Focus on Forever provides real-time updates, legal observations, and actionable tips to navigate the constantly evolving legal challenges involving PFAS. In this edition, we discuss the most recent developments in the Hardwick v. 3M class-certification saga; several updates from EPA, including its National PFAS Datasets tool and its intention to adopt ASTM’s Phase I standard for site assessments; a note on a newly-introduced bill regarding regulation of PFAS under the Clean Air Act; a manufacturer’s petition challenging EPA’s GenX Chemicals Toxicity Assessment; and, finally, a newly-released and widely circulated Consumer Reports study on PFAS in food packaging.
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.
Bipartisan Bill Aims to List PFAS as Toxic Air Pollutants
What We Are Reading
- New Study Published on the Behavior of GenX Molecules in Aqueous Solutions. Journal of Hazardous Materials.
- Federal VET PFAS Act Introduced in House Proposes Providing Health Care for Veterans Exposed to PFAS at Military Installations. S. House of Representatives.
- Maine’s Elected Officials in Congress Ask USDA for More Aid in Response to Identification of PFAS in State’s Agricultural Products. S. Congress.
- Minnesota Pollution Control Agency Issues its PFAS Monitoring Plan. Minnesota Pollution Control Agency.
- Both Houses of Washington State Legislature Pass Bill That Would, if Signed by Governor, Expand and Speed Up Regulation of Products Containing PFAS. Washington State Legislature.
Hardwick v. 3M Defendants Petition Sixth Circuit for Permission to Appeal Class Certification
In our last issue we covered the expansive class certification in the Hardwick v. 3M Co. case pending in the Southern District of Ohio. As we noted at the time, Rule 23(f) permits an immediate appeal without waiting for a final judgment. As expected, defendants decided to take advantage of that right and filed a Petition for Permission to Appeal in the Sixth Circuit. Defendants’ petition identifies three district court errors that they argue justify interlocutory review by the Sixth Circuit:
- First, the district court ruled that the injunctive relief class does not have to be truly cohesive. Defendants point out that the class here is comprised of members who differ in terms of the PFAS chemical exposure at issue, dose, source, and timing of exposure, as well as the health risks, conditions, and necessary care.
- Second, the district court failed to require Plaintiffs to specifically describe the science-panel or medical-monitoring injunctive relief sought.
- Third, the district court decided to forego an assessment of the preclusive effect of a non-opt-out class on the possible damages claims of absent class members, which deepens an existing split within district courts in the Sixth Circuit.
In stressing the need for immediate interlocutory relief, Defendants point to the potential costs of the litigation continuing in the district court post-class-certification:
- The certified class includes potentially every resident of Ohio and any person who passed through Ohio and experienced a PFAS exposure in the state, which could include tens of millions of individuals. The injunctive relief sought includes the costs of identifying these potential class members and undertaking medical monitoring for those individuals, which petitioners allege could require billions of dollars to implement.
- Petitioners also stress that the injunctive relief sought, as presently articulated, would be staggering as it would require studies of any PFAS chemical (there are thousands) from a wide variety of sources. Petitioners point out that the negotiated costs of the C-8 Science Panel’s work—which covered just one type of PFAS chemical (PFOA) from just one source—resulted in tens of millions of dollars in costs.
We’ll be certain to watch for any filing from respondents or notable amici, and of course update our readers on any decision from the Sixth Circuit. As we mentioned before, this will be an important case to watch. If the ruling stands—in whole or even in part—it could snowball to other state-wide or territory-wide classes.
EPA Releases National PFAS Datasets Data Collection Tool
Recently, EPA published a compilation of National PFAS Datasets that include a substantial amount of data regarding sources of PFAS across the country. The information collected by EPA includes:
- Ambient Environmental Sampling for PFAS;
- Drinking Water Testing (conducted by EPA as well as individual states);
- PFAS Manufacture and Import Information Filed with EPA Pursuant to TSCA’s Chemical Data Reporting Rule;
- Listings of Superfund Sites with PFAS Detections;
- Clean Water Act Discharge Monitoring Data;
- Listings of Federal Facilities with Known or Suspected PFAS;
- Listing of Suspected Industries that may Handle or Release PFAS, such as Fire Training Sites and Airports;
- Hazardous Waste Transfers Reported Under the Resource Conservation and Recovery Act;
- National Response Center Spills Incidents; and
- Limited Toxics Release Inventory Reporting Information.
Most of the material contained in the National PFAS Datasets was otherwise publicly available from various different repositories. But EPA’s new tool compiles this wide array of data in one place, with a commitment to continually update the Datasets to provide interested users with “a more complete picture of PFAS occurrence.”
EPA Moves to Adopt ASTM’s New Phase I Standard for Site Assessments
In another update to a past newsletter issue, we previously highlighted that ASTM International (ASTM) revised its Standard Practice for Phase I Environmental Site Assessments (Phase I) to address PFAS as a “non-scope” consideration in our January 11, 2022, Focus on Forever Newsletter. On March 14, 2022, EPA published a direct final rule that would formally recognize ASTM’s Phase I as an EPA-approved standard and allow its use to satisfy conducting inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Notably, the direct final rule does not supplant the 2013 version, potentially raising the question of the 2021 update will inform the AAI process. Unless EPA receives adverse comment by April 13, 2022 the rule will become effective on May 13, 2022. The newsletter will keep an eye out for adverse comments.
EPA Issues Press Release Regarding Two PFAS-Related Initiatives
In more EPA news, the agency recently issued a press release touting two recent actions in its ongoing regulatory efforts regarding PFAS.
First, EPA sent a Toxics Substances Control Act (TSCA) compliance notification letter to a wide variety of industry members using fluorinated high-density polyethylene (HDPE) containers and similar plastics, including manufacturers, distributors, users, and those that dispose of such materials. The notification letter followed last year’s testing data showing the presence of PFAS in HDPE containers used in connection with a pesticide product. This month’s letter reminded potentially affected companies using or disposing HDPE containers that they may be subject to a Significant New Use Rule (SNUR) for long-chain PFAS given the potential for PFAS contamination. If subject to the long-chain PFAS SNUR, entities are required to submit a Significant New Use Notice to EPA and await EPA’s review of potential risks of the use under TSCA as well as determination as to whether the use is permissible before continuing with the activity.
Second, EPA announced that it will remove two types of PFAS from the Safer Chemical Ingredients List (SCIL): Amphoteric Fluorinated Surfactant (CAS 34455-29-3) and another PFAS with a much longer name that we’ll simply list by its CAS to spare our readers a headache (452080-67-0). While these two chemicals are still listed on the SCIL for now (with a grey square designation), they will no longer be listed on the SCIL as of March 16, 2023. Any currently labeled products that contain these two chemicals will need to be reformulated in order to comply with EPA’s Safer Choice Program.
Bipartisan Bill Aims to List PFAS as Toxic Air Pollutants.
On March 17, 2022, a bipartisan group of House members, including Rashida Tlaib (D-MI), Debbie Dingell (D-MI), and Brian Fitzpatrick (R-PA) introduced H.R. 7142—the Prevent Release of Toxic Emissions, Contamination and Transfer (PROTECT) Act. The proposed bill would add PFAS to the list of hazardous air pollutants under section 112(b) of the Clean Air Act (42 U.S.C. 7412(b)), as well as direct EPA’s Administrator to revise the Clean Air Act’s section 112(c)(1) list to include both major sources and area sources of PFAS. The bill, which is currently with the House Energy and Commerce Committee for review and consideration, is just the latest example of the bipartisan focus on using all available federal tools to regulate potential sources of PFAS.
Other Breaking News
Manufacturer Files Information Quality Act Petition Requesting that EPA Withdraw and Correct its GenX Chemicals Toxicity Assessment
Although we’re sure our readers are completely up to speed on the issue, we’ll still begin this rundown with a bit of background for those who have not been following the twists and turns of EPA’s recent review of GenX Chemicals. In October 2021, EPA issued its Toxicity Assessment for Hexafluoropropylene Oxide (HFPO), Dimer Acid, and its Ammonium Salt (otherwise known as GenX Chemicals), in which EPA proposed the lowest reference doses (RfDs) yet for any PFAS chemical: a chronic RfD of 0.003 µg/kg/day and a subchronic RfD of 0.02 µg/kg/day. At the time EPA issued its final GenX Chemicals Toxicity Assessment, it also announced that it was reevaluating its existing RfDs for PFOA and PFAS, which could move lower following the reassessment.
Fast forward to March of this year: a manufacturer is asserting that EPA’s GenX Chemicals Toxicity Assessment should be withdrawn and corrected, pursuant to the Information Quality Act, due to alleged deviations from standard EPA methodologies in performing such assessments. The claimed deviations range from improper reliance on various effects in animal studies to failing to undertake a proper review of the available literature. We’ll make sure to keep an eye out for EPA’s response to this petition.
According to a Newly Released Consumer Reports Study, Restaurant Food Packaging May Never Be “PFAS-Free”
Not even the Cookie Monster can escape the reach of PFAS. A study conducted by Consumer Reports tested 118 food packaging products from restaurants and supermarkets for total organic fluorine, a measure of PFAS. Overall, more than half of the packaging tested had detectable levels of organic fluorine and more than twenty were above 100 ppm. To put that into context, starting in January 2023, paper food packaging with over 100 ppm organic fluorine will be banned in California. Items with 100 parts per million or more include bags for cookies, chips and fries, salad bowls, soup containers, and sandwich (or hamburger, burrito, pita, “insert your lunch here”) wrappers.
Reducing, not to mention eliminating, PFAS in food packaging is proving harder than some may have anticipated. According to Consumer Reports, companies are facing supply chain problems as well as logistical challenges in their quest to remove a substance “present in everyday life from tap water to air to soil.”
You can read more about the study’s methodology and findings here.
Finally, Please Look Out for Our Next Webinar Series on PFAS!
Attendees at our first webinar in March learned the basics about PFAS and what we expect PFAS legislation and litigation to look like in 2022 and beyond. Now, in part two of our webinar series, see how these PFAS legal issues unfold in real, day-to-day life through the use of representative case studies. We will take examples from the apparel and food/beverage industries to illustrate the wide range of legal challenges companies in virtually any industry can face relating to PFAS.
The webinar will take place on May 17, 2022. Please keep a lookout for the forthcoming invitation!