As we kick off a busy Fall season, the Focus on Forever team continues to monitor the world of PFAS. 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 several significant developments in the AFFF MDL as well as the Hardwick class certification appeal, a number of regulatory developments that have occurred over the past month, a few comments on recent state activity, and observations on select recent scientific publications.
Look for new editions every few weeks and please feel free to reach out to the King & Spalding team if you have any questions regarding PFAS issues.
Focus on Litigation
U.S. District Judge Richard Mark Gergel Denies AFFF MDL Defendants’ Motion for Summary Judgment on the Government Contractor Immunity Defense
As readers are aware, the AFFF MDL pending in the U.S. District Court for the District of South Carolina centralizes cases alleging that AFFF products used at airports, military bases, or certain industrial locations released PFOA and PFOS into groundwater. Defendants identified a number of defenses common to the group in the course of litigating these cases, including the so-called government contractor immunity defense. The government contractor immunity defense shields private companies contracting with the federal government under certain circumstances with the rationale that permitting certain suits between an individual and a government contractor can cause the contractor to either decline to manufacture a product specified by the government or increase costs on the government to manufacture such products to insure against potential claims. Here, Defendants argued that the government contractor immunity defense should apply to their manufacture of AFFF pursuant to a Naval MilSpec in existence from 1969 until 2019 that required that the products use “fluorocarbon surfactants” (which include PFOA and PFOS, but also include several hundred other PFAS compounds).
The three-part test for assessing whether the government contractor immunity defense applies was first laid out in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Under Boyle and subsequent case law, to establish applicability of the defense, a defendant must show:
- The U.S. approved reasonably precise specifications;
- The product conformed to those specifications; and
- The supplier warned the U.S. about the dangers in the use of the equipment that were known to the supplier but not to the U.S.
Here, the Court issued an Order denying Defendants’ motion primarily on the basis that they had failed to satisfy the first prong of the Boyle standard for several reasons:
- The Court found that the MilSpec did not require adherence to a particular formula, but rather allowed contractors to use discretion to choose which “fluorocarbon surfactants” to include in their products and were not required to use PFOA or PFOS specifically;
- The Court determined that the government did not participate in a meaningful back and forth with AFFF manufacturers in the development of the manufacturers’ products—rather, the manufacturers treated their products as proprietary information; and
- The Court concluded that material factual disputes remain concerning whether the timing of some manufacturers’ disclosures of health-related information concerning PFOA and PFOS resulted in a delay in the government’s discontinuance of these compounds in AFFF, such that there was no prima facie showing that the government continued to use the AFFF MilSpec with full knowledge of the product’s risks.
The denial of summary judgment on the government contractor defense paves the way for bellwether trials to begin next year. We will continue to update our readers as these cases proceed.
Sixth Circuit Panel Unanimously Grants Petition for Interlocutory Review of Class Certification in Hardwick
We have been reporting on the Hardwick class certification decision for some time. Readers will recall that the district court in that matter certified a class of over 11 million residents of Ohio plus any person subject to the state’s laws, seeking expansive remedies in the form of an injunction, medical monitoring, and the establishment of a “Science Panel.” Shortly after the district court’s Order, Defendants filed a petition in the Sixth Circuit for permission to immediately appeal. The Sixth Circuit has now agreed to the interlocutory review.
The Sixth Circuit found that the “extraordinary procedure” of interlocutory review was necessary because “when a district court certifies one of the largest class actions in history, predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals, to authorize pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability, such a decision warrants further review.”
Given the initial commentary from the unanimous Sixth Circuit panel, the district court’s sweeping Order may be short-lived.
Massachusetts Class Action Filed Against Paper Producers and Compost Facility
In August 2022, a class action was filed in the District Court of Massachusetts alleging that paper manufacturing defendants and the owner of a commercial compost facility are responsible for the potential contamination of both real property and drinking water supplies in and around Westminster, Massachusetts. The complaint also alleges that the compost defendant sold contaminated products to a subclass of plaintiffs.
Of note for our readers, the plaintiffs brought this lawsuit after the Massachusetts Department of Environmental Protection (MassDEP) performed groundwater testing at a property owned by the compost defendant, which purportedly detected PFAS levels above MassDEP’s published standards. The plaintiffs relied on the MassDEP’s investigation regarding the potential cause of the groundwater contamination to identify the defendants included in their complaint.
This case highlights the continuing pattern of civil lawsuits following state and federal agency PFAS-related testing and investigations.
Focus of Regulatory Action
Latest Developments on EPA’s Proposed Designation of PFOS and PFOA as CERCLA Hazardous Substances
In case you missed it, please follow this link to find a King & Spalding roundtable discussion on the broad implications of EPA’s proposed rulemaking to designate PFOS and PFOA as CERCLA Hazardous substances.
With respect to even more recent developments, EPA has released a draft Economic Assessment of the potential costs and other impacts of the proposed rule. The Economic Assessment provides some qualitative assessment regarding the potential costs of the implementation of the proposed rule. However, given “[s]ignificant uncertainty about the extent of existing PFOA and PFOS use and contamination, evolving assessment and response technologies, and health science pose outstanding barriers to developing a robust quantitative analysis of the indirect costs, benefits, and potential transfers associated with response to PFOA and PFOS contamination under CERCLA.”
EPA has already received several comments regarding its Economic Assessment, including comments from industry groups calling for, among other things, EPA to perform a full Regulatory Impact Analysis with quantification of the potential costs associated with the rule as well as additional time for interested parties to submit comments regarding EPA’s proposed rule. At present, it does not appear that EPA will perform a full quantitative Regulatory Impact Analysis. We will continue to follow developments as this proposed rule moves forward.
EPA Activity Concerning Pesticides
In September, EPA issued a pair of actions targeting the presence of PFAS in pesticides and certain packaging used for pesticides.
First, EPA issued a proposal to remove twelve different PFAS chemicals from the current list of inert ingredients approved for use in pesticide products, pursuant to the direction provided to the agency by the PFAS Roadmap. According to EPA, none of the twelve chemicals poised for removal from the current list are in use by pesticide manufacturers today. Any comments on the proposal must be received by October 13, 2022.
Second, EPA completed a study to test the leaching potential of PFAS over a specific time into test solutions packaged in different brands of high-density polyethylene (“HDPE”) containers (used for pesticides and certain other products) containing PFAS. This study found that certain HDPE containers could leach PFAS into products, including water-based products. Based on these results, EPA urged companies using HDPE containers to examine potential sources of contamination.
U.S. Government Accountability Office Issues PFAS Report
Late this summer, in response to a congressional request, the U.S. Government Accountability Office (GAO) released a report titled Persistent Chemicals: Technologies for PFAS Assessment, Detection, and Treatment, which discusses technologies to detect, treat, and assess the health effects of PFAS contamination. Between March 2021 and July 2022, the GAO assessed PFAS relevant technologies, reviewed available reports, surveyed subject matter experts, and interviewed stakeholder groups, including government, non-governmental organizations, industry, and academia to prepare its report.
In its report, GAO identified three core challenges stemming from limited technology that hinder full assessment of PFAS detection and assessment:
- “PFAS chemical structures are diverse and difficult to analyze for health risks, and machine learning requires extensive training data that may not be available.”
- “Researchers lack analytical standards for many PFAS, limiting the development of effective detection methods.”
- “The effectiveness and availability of disposal and destruction options for PFAS are uncertain because of a lack of data, monitoring, and guidance.”
The GAO also recommended three policy options to mitigate the impact of the identified challenges. These policy options consist of:
- “Support development of technologies and methods for more efficient research into PFAS health risks.”
- “Collaborate to improve access to reliable samples of PFAS, known as analytical standards, and increase the pace of method and reference sample development for PFAS detection.”
- “Encourage the development and evaluation of full-scale technologies and methods to dispose of or destroy PFAS.”
American Chemistry Council Challenges EPA’s New PFOA and PFOS Health Advisories for Drinking Water
Also late this summer, the American Chemistry Council (ACC) filed a petition with the Court of Appeals, District of Columbia Circuit challenging EPA’s recent interim Lifetime Health Advisories on Four Perfluoroalkyl Substances,which updated EPA’s standards for PFOA and PFOS in drinking water from 70 parts per trillion (ppt) each to 0.004 ppt and 0.02 ppt, respectively (as we reported on earlier this year). Specifically, the Petition alleges that EPA’s interim health advisories set impossibly low standards for PFOA and PFOS in drinking water based on “flawed” science that does not rely on the “best available, peer-reviewed science” as required by the Safe Drinking Water Act. The petition also challenges EPA’s issuance of “interim” health advisories as procedurally improper.
Given the influence of EPA health advisories on state and federal enforcement programs, we will continue to follow this litigation and any updated EPA health advisories regarding PFOA and PFOS levels in drinking water.
Focus on State Action
The California Assembly recently passed three different PFAS-related bills. Advocates on both sides of these issues presented their positions to Governor Gavin Newsome, urging him to either sign or veto the bills. Last week, the Governor decided to sign two of the bills but veto the third:
- AB 1817: Signed by the Governor and will prohibit manufacture, sale, or distribution of any textile product containing intentionally added PFAS beginning January 1, 2025 (with certain specified exceptions).
- AB 2771: Signed by the Governor and will prohibit manufacture, sale, or distribution of any cosmetic product containing intentionally added PFAS beginning January 1, 2025.
- AB 2247: Vetoed by the Governor. Would have required all manufacturers, importers, and distributors of products within California containing intentionally added PFAS to register the product on a publicly accessible reporting platform established by Department of Toxic Substances Control and Interstate Chemicals Clearinghouse beginning in 2025. The required disclosure would have required inclusion of the type of product, universal product code, a description of how the PFAS was added, and the names of any PFAS intentionally added.
Late this summer, Wisconsin’s Department of Natural Resources updated several chapters in Wisconsin’s Administrative Code to implement PFAS-related modifications for drinking and surface water standards. As a result of these updates, Wisconsin has now set a new Maximum Contaminant Level equal to EPA’s earlier standard discussed above—70 ppt. Surface water thresholds were also established for PFOS (8 ppt) and PFOA (20 or 95 ppt depending on if “public” or other surface water).
Focus on Science
Researchers Report Promising Research to Degrade and Remove PFCAs
Researchers from Northwestern, UCLA, and several foreign universities published a research article titled “Low-temperature mineralization of perfluorocarboxylic acids” in the preeminent journal Science, where the authors report a promising advancement towards developing methods to degrade and remove PFCAs (a subset of PFAS chemicals). The authors note that current methods to remove PFAS have significant downsides, such as reliance on using harsh conditions (incineration, ultrasonication, etc.). The researchers, however, elucidated a mechanism that alleviates many prior limitations: “[i]n contrast to other proposed PFAS degradation strategies, the conditions described here . . . operate under relatively mild conditions with inexpensive reagents.” The authors predict that their findings can be leveraged to develop new PFCA degradation processes and may expand other PFAS chemicals beyond PFCAs.
Researchers Compare Levels of PFAS in Environmental Media with International Health Advisories
In a recent publication, researchers from Stockholm University and ETH Zürich published an article titled Outside the Safe Operating Space of a New Planetary Boundary for Per- and Polyfluoroalkyl Substances (PFAS). The article compares the most stringent international limits on PFAS with the levels of PFAS found in environmental media. For instance, the authors compared the levels of PFAS detected in rainfall in various regions of the world to the U.S. EPA drinking water advisory. Except for remote regions, i.e., Tibet and Antarctica, PFAS detected in rainfall around the world exceeded drinking water advisories. The authors remarked that “US EPA health advisories seem not to be practically reachable without investment of huge cleanup costs in drinking water treatment plants given that most drinking water sources on the planet will have PFAS levels above the advisory levels.” The authors note that they made “no attempt to determine which of the many guidelines . . . is based on the strongest empirical evidence on effects because such a judgment is outside of our expertise. The point that we want to make is that the most stringent risk-based health advisories are often well below environmental levels, and this should be of concern and a reason for taking stringent measures.”
What We Are Reading
- Chicago Tribune Publishes PFAS Investigation in Drinking Water and Food
- New York Times Reports on EPA's Proposed Hazardous Designation
- New York Times Discusses Progress with PFAS Disposal Technique
- Vox Publishes Interview with Harvard Environmental Chemist on PFAS in Peoples’ Bloodstreams
- Cities, Schools Weigh Costs of PFAS with Artificial Turf
- Federal Court in California Allows “Deception” Claims Against Eyeglass Spray Maker to Proceed