The first six months of 2024 brought many new federal and state legislative and regulatory initiatives targeting per- and poly-fluoroalkyl substances (PFAS), as well as ongoing developments in key PFAS litigation. Taken together, these actions are increasing compliance risks and leading companies across virtually all industries to take a much closer look at their own interactions with PFAS – whether in industrial operations, supply chains, or manufactured products. Many of these new legal developments will have significant ramifications not only for PFAS manufacturers, but also a broad spectrum of companies that have used PFAS or PFAS-containing products in their own operations or products. In this mid-year report, our team of PFAS legal experts highlights several important PFAS-related developments at the federal and state levels.

Federal Regulatory and Legislative Updates

Federal agencies have taken a comprehensive approach to regulating PFAS—indeed EPA has published final or proposed rules for nearly every regulatory goal outlined in the Agency’s PFAS Strategic Roadmap and listed “addressing exposure to PFAS” as a national enforcement and compliance initiative for Fiscal Years 2024-2027. These recent federal regulatory developments introduce new compliance challenges, including enhanced monitoring, reporting, and remediation responsibilities—although recent legal challenges to these rules may delay enforcement.

• Water: On April 26, 2024, the EPA issued its final rule establishing National Primary Drinking Water Regulations for six (6) PFAS substances, setting Maximum Contaminant Levels (“MCLs”) for perfluorooctanoic acid (“PFOA”), perfluorooctane sulfonic acid (“PFOS”), perfluorononanoic acid (“PFNA”), hexafluoropropylene oxide dimer acid (“HFPO-DA” or “GenX Chemicals”), and perfluorohexane sulfonic acid (“PFHxS”) and setting a Hazard Index (“HI”) MCL for any mixture containing two or more of PFNA, PFHxS, HFPO-DA and perfluorobutane sulfonic acid (“PFBS”). The limits in the Final Rule will require public water systems to monitor for these chemicals, with an initial three-year time frame to complete initial monitoring. Trade organizations representing these water systems challenged EPA’s final rule in a June 7, 2024 petition for review filed in the U.S. Court of Appeals for the D.C. Circuit.
• Hazardous Substances: On May 8, 2024, EPA issued its final rule designating PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The designation sets a Reportable Quantity (“RQ”) of one pound for PFOA and PFOS and “provides additional tools that allow for earlier, broader, more effective cleanups, allowing EPA to protect communities that are exposed to high concentrations of PFOA and PFOS.” Specifically, the designation will allow EPA and other agencies with delegated CERCLA authority to: (1) conduct response actions for releases or threatened releases of PFOA or PFOS without first having to establish an “imminent and substantial danger,” (2) require potentially responsible parties (“PRPs”) to address PFOA or PFOS releases, and (3) recover PFOA- and PFOS-related cleanup costs from PRPs. On June 10, 2024, the U.S. Chamber of Commerce and two other trade groups filed a lawsuit in the U.S. Court of Appeals for the D.C. Circuit challenging this final rule.
• Food and Drug Safety: On February 28, 2024, the FDA announced that manufacturers in the U.S. completed its voluntary phase out of grease-proofing substances that contained PFAS that were used on food packaging paper and paperboard, which has been a primary source of dietary PFAS exposure in the U.S. The voluntary phase-out process began in 2020.
• Disposal: In February 2024, EPA published two PFAS-related proposed rules under the federal Resource Conservation and Recovery Act (“RCRA”). One proposal would designate nine (9) specific PFAS as RCRA “hazardous constituents,” thereby making these PFAS potentially subject to periodic groundwater monitoring and/or corrective action authorities at permitted and interim status facilities where these substances were known or suspected to have been released. The other proposal would codify EPA’s interpretation that RCRA corrective action can be required for waste that meets the statutory definition of “hazardous waste” in RCRA section 1004(5), even if the waste has not been separately designated as a listed or characteristic hazardous waste under applicable RCRA regulations. According to the Spring 2024 Unified Agenda, EPA intends to finalize the “hazardous waste” corrective action rule by the end of 2024 but does not intend to finalize the PFAS “hazardous constituents” listing until 2025.
• Toxics: Throughout the first half of the year, companies continued to prepare for implementation of new EPA reporting and recordkeeping requirements for PFAS, which were adopted under the Toxic Substances Control Act in October 2023. These requirements apply to any company that has imported or manufactured PFAS since 2011. Affected entities have until November 13, 2024, to begin reporting in compliance with the rule’s requirements.

State Regulatory and Legislative Updates

State legislatures across the country are taking a keen interest in legislation to address PFAS issues and concerns. This includes early movers like Maine and Minnesota, which have adopted sweeping state-wide bans on PFAS. In addition to these bans described below, states have also taken steps to regulate the use of PFAS-containing firefighting foam, establish contaminant limits for PFAS in soil and water, and include PFAS limits in permitting.

• Maine: On April 16, 2024, Maine amended their Laws Relating to the Prevention of Perfluoroalkyl and Polyfluoroalkyl Substances Pollution accelerating the ban for certain products, such as cleaning, cookware, cosmetics, dental floss, juvenile products, menstruation products, textiles, ski wax, upholstered furniture, and products sold in PFAS containers to begin January 1, 2026. The amendments also narrowed the reporting requirement to be required only after a covered product sales ban takes effect and “for which the [DEP] has determined that use of PFAS in the product is a currently unavoidable use.”
• Minnesota: On March 26, 2024, the Minnesota Pollution Control Agency (“MPCA”) published details on the types of products to be included in the PFAS prohibitions effective January 1, 2025. Specifically, Minnesota’s ban applies the same categories as Maine’s ban (see above) does. Additionally, on January 1, 2024, Minnesota’s food packaging focused PFAS ban went into effect prohibiting the use of intentionally added PFAS in food packaging that is manufactured, sold, or distributed for use or sale in Minnesota.
• California: Last year, Governor Gavin Newsom vetoed three PFAS-related consumer products safety bills including AB 1423 (banning PFAS in artificial turf or synthetic surfaces), AB 246 (banning PFAS in menstrual products), and AB 727 (banning PFAS in floor sealers and finishes). In early 2024, SB 903, a sweeping PFAS ban was introduced in the state Senate, but in May 2024, SB 903 died in the Senate Appropriations Committee after the chair declined to bring it up for a vote ahead of the deadline for measures to clear fiscal panels. On June 5, 2024, AB 347 was introduced in the California legislature to establish an “enforcement model” for future PFAS bans. As written currently, this enforcement measure would apply only to products subject to previously enacted PFAS bans (i.e., juvenile products, textiles, cosmetic products, and food packaging), although it would likely lay a foundation for future state enforcement for future PFAS restrictions or bans in California.

Litigation

• On June 6, 2024, a group of Texas farmers filed a complaint in U.S. District Court for the District of Columbia, asserting claims against EPA under the citizen suit provisions of the federal Clean Water Act (CWA), Farmer v. United States Environmental Protection Agency, Civ. No. 1:24-cv-01654 (June 6, 2024, D.D.C). The plaintiffs allege, among other things, that EPA has failed its nondiscretionary duty to regulate eleven (11) specific PFAS in sewage sludge (also referred to as “biosolids”) that have been applied to the land and are seeking a court order compelling EPA to regulate these PFAS as CWA hazardous substances.
• Plaintiffs in the ongoing Aqueous Film-Forming Foam (“AFFF”) Multi-District Litigation no. 2873 (“MDL”), consolidated in the U.S. District Court for South Carolina, reached final or proposed settlements of PFAS-related claims with several major defendants. Johnson Controls subsidiaries Tyco Fire Products LP and Chemguard, Inc. agreed to a proposed $750 million settlement, while BASF Corporation entered into a proposed $316.5 million settlement. The District Court also granted its final approvals for earlier settlements with the 3M Company and with certain current/former DuPont entities, including Chemours Company, DuPont de Nemours Inc., Corteva, Inc., and E.I. DuPont de Nemours and Company. See https://www.pfaswatersettlement.com/.
• Hardwick v. 3M Co.: On January 18, 2024, the U.S. Court of Appeals for the Sixth Circuit rejected a request for rehearing and rehearing en banc of the Circuit’s November 27, 2023 ruling denying class certification and directing the lower court to dismiss the action for lack of jurisdiction for personal injury claims due to PFAS exposure. These two rulings may have effectively raised the bar for proving standing and harm in lawsuits alleging personal injuries due to PFAS. As explained by the Sixth Circuit, plaintiff Hardwick originally “sought to represent a class comprising nearly every person ‘residing in the United States,’” although the lower court certified a class comprising only every resident of the State of Ohio. Regardless, the Circuit found that Hardwick – a former firefighter exposed to AFFF during his career – did not provide facts that showed a reasonable connection between the defendants and the PFAS in his blood. The court dismissed Hardwick’s allegations as “conclusory,” ultimately ruling that he did not have standing to sue, because the pleadings did not show how the defendants’ actions caused the alleged harm.
• An increasing number of false advertising and/or failure to warn claims are being asserted against manufacturers of products alleged to contain PFAS at small or even trace concentrations. For example, on May 15, 2024, plaintiffs filed a class action complaint in the U.S. District Court for the Northern District of California, alleging that BIC USA Inc. failed to disclose to consumers that its shaving razor products contain PFAS. The plaintiffs asserted that BIC had disclosed PFAS content in certain of these products pursuant to a Maine PFAS reporting program yet did not make similar disclosures to BIC customers. Similar false advertising claims have been asserted against numerous other products such as toothpaste, dental floss, bandages, beverages, and takeout containers. Interestingly, the BIC case may signal a new trend in these cases with claims being asserted based on information reported by manufacturers under state PFAS reporting programs.

International

International regulatory efforts to manage PFAS are also intensifying with the EU implementing limits on PFAS in drinking water and considering broader restrictions on their use in products. These global developments indicate a growing trend towards stringent PFAS regulation, with potential impacts on international trade and manufacturing practices.

• Europe: On March 13, 2024, the European Chemicals Agency (“ECHA”) issued a press release clarifying the next steps on the 2023 proposal to restrict 10,000 PFAS under the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) regulation. Specifically, ECHA’s scientific committees will evaluate the proposal and its potential impacts through the holding of discussions on the sectors and elements of the proposal in committee meetings in March, June, and September 2024. Additionally, a related proposal to regulate fire-fighting foams that contain PFAS is under consideration. The proposals recommend a general ban on manufacturing, placing on the market, and the use of PFAS. If the restrictions are formally adopted, the restrictions are not expected to go into effect until 2026 or 2027 at the earliest.

These regulatory, legislative, and litigation developments highlight the growing focus on PFAS across various jurisdictions and the compliance and litigation risks that may emerge. Taking proactive measures, ensuring continuous monitoring, and keeping informed about new PFAS developments will aid in navigating this evolving regulatory landscape.

 

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