Published September 16, 2024, by Javaneh S. Tarter, Matthew Z. Leopold, Gregory R. Wall, Rachel Saltzman, and Paul T. Nyffeler
On August 16, 2024, federal agencies released their “Spring 2024” Unified Regulatory Agenda detailing the regulations that they are developing over the next several months as well as long-term actions planned over the next few years. The agenda include EPA’s and the US Department of Defense’s (DOD) numerous important upcoming actions on chemicals and products containing these chemicals that will have significant implications for the regulated community. Hunton Andrews Kurth LLP’s regulatory team has provided analyses of these upcoming regulatory actions:
Published September 13, 2024, by Thomas S. Lee, Bryan E. Keyt, Erin L. Brooks, and John R. Kindschuh
The regulation of PFAS in drinking water remains one of the primary focuses for legislatures and agencies at both the state and federal levels. In April 2024, EPA issued Maximum Contaminant Levels (MCLs) and Maximum Concentration Level Goals (MCLGs) for certain PFAS, establishing limits as low as 4 parts per trillion (ppt). Many states have already regulated PFAS compounds in drinking water but have done so in a variety of different ways, and at different levels.
The result is a patchwork of regulations and standards which presents significant operational and compliance challenges to impacted drinking water systems. This client alert surveys the MCLs, as well as guidance and notification levels, for PFAS compounds in drinking water across the United States.
Published September 12, 2024, by Lynn L. Bergeson and Carla N. Hutton
In August 2024, the U.S. Chamber of Commerce released a report entitled Essential Chemistries: Providing Benefits Across the U.S. Economy that “examines the dependence of seven critical U.S. sectors, including aerospace manufacturing, data centers, defense equipment and systems, energy transition, health care, mobility, and semiconductors on essential fluorochemistries,” including PFAS. Third-party experts in environmental and economic policy engaged by the Chamber evaluated the economic and fiscal impacts of specific sectors reliant on essential fluorochemistries across the U.S. economy. The report primarily addresses the key uses of fluoropolymers, fluorinated gases (f-gases), and other fluorinated substances, such as heat transfer fluids.
Published September 11, 2024, by Brandon W. Neuschafer, Lawrence E. Culleen, and Judah Prero
The amount of activity regarding the regulation of PFAS in consumer products and packaging is dizzying, and the summer of 2024 offered no reprieve for industry. Summaries of such activity in individual states is provided.
Published September 10, 2024, by Emma L. Lautanen, Jeff B. Kray, and James A. Tupper
While initially focused on drinking water, public concern and regulatory attention has turned recently to PFAS in wastewater and biosolids. A New York Times investigation this past week discussed potential threats to livestock and food safety from PFAS-containing biosolids used as fertilizer. Indeed, some states have already banned the sale and/or land application of biosolids containing PFAS, dramatically raising disposal costs for utilities that have relied on land applying wastewater sludge. Environmental groups have taken note and this year started to sue [publicly owned treatment works (POTWs)] to force action. More and more states have begun to require monitoring and to insert PFAS limits in [National Pollutant Discharge Elimination System (NPDES)] permits. Questions are being raised as to the efficacy of treatment technologies and the timing and feasibility of removing PFAS from upstream dischargers’ wastewater. Perhaps the only thing that is certain is that the issue is not going away. POTWs around the country, taking notes, are actively working to address these issues.
Published September 5, 2024, by James B. Pollack, Isabel Q. Carey, and Aidan R. Freeman
PFAS regulation is increasing not only in the United States, but globally. Manufacturers and exporters who sell into multiple markets must comply with an increasingly complex and changing set of rules, and face exposure to liability and penalties for failing to do so.
For example, just a month ago, Environment and Climate Change Canada (ECCC) announced a Notice that sets backward-looking reporting requirements for certain manufacturers and importers of PFAS or certain PFAS-containing goods with a compliance deadline of January 29, 2025. While similar in some respects to EPA’s PFAS Reporting Rule under TSCA, there are also significant differences, not the least of which is the very imminent reporting deadline.
Published September 4, 2024, by Mark N. Duvall, Ryan J. Carra, K. Russell LaMotte, and Robert T. Denney
EPA is modifying the TSCA regulation imposing reporting and recordkeeping requirements for perfluoroalkyl and polyfluoroalkyl substances (the Rule) to delay the reporting period by eight months. The Rule, as finalized last year, included a reporting window that would open on November 12, 2024, and close for most companies on May 8, 2025. EPA is now delaying the submission period by eight months. With this delay, the reporting period will open on July 11, 2025, and close, for most companies, on January 11, 2026. EPA is also making a technical correction to address a typographical error in the Rule’s text, and the delay and correction are being announced as a direct final rule that will become effective within 60 days of publication unless the agency receives an adverse public comment within 30 days of publication.
Published August 27, 2024, by Katia Asche, J. Michael Showalter, Lynn R. Fiorentino, Sharon O’Reilly, and Robert G. Edwards, Ph.D.
This spring, we discussed a recent California federal case against BIC USA Inc. stemming from BIC’s use of PFAS-related chemicals in disposable razors. In that case, two consumers claim that BIC failed to disclose the use of these chemicals to consumers, notwithstanding that it had disclosed their use to the Maine Department of Environmental Protection (DEP) in accordance with Maine law. We summarize the main arguments BIC presents in its recently filed motion to dismiss the lawsuit and outline what issues other consumer products companies should be tracking.
Published August 21, 2024, by Lynn L. Bergeson and Carla N. Hutton
On August 18, 2024, Computational Toxicology published an article entitled “Development of chemical categories for per- and polyfluoroalkyl substances (PFAS) and the proof-of-concept approach to the identification of potential candidates for tiered toxicological testing and human health assessment.” Co-authored by members of EPA’s Center for Computational Toxicology & Exposure (CCTE) and Office of Chemical Safety and Pollution Prevention (OCSPP), the study “describes the approach taken to further refine a relevant PFAS landscape to EPA from which an initial set of structural categories were derived.”
Published August 21, 2024, by E. Chase Dressman, Jack Hawkins, and Michael L. Meyer
On July 24, 2024, Environmental Health Perspectives (EHP) published a study relating to the presence of PFAS in pesticide products.
The study concludes that nearly 25% of all U.S. pesticide active ingredients are organofluorines (organic compounds that contain a carbon–fluorine bond) and 14% are PFAS. PFAS are a type of organofluorine or fluorinated molecule. For “active” ingredients approved by EPA within the last ten years, the study finds that 61% are organofluorines and 30% are PFAS. For “inert” pesticide ingredients approved by EPA, the study finds a seemingly limited presence of PFAS but notes there is a significant lack of information on this issue. Furthermore, the study finds that leaching of PFAS from fluorinated containers into pesticide products is a significant contributor to the presence of PFAS in pesticides.
In light of the foregoing, the authors of the study make several recommendations, including: (1) more stringent government agency risk assessment for fluorinated pesticides; (2) transparent disclosure of inert ingredients on pesticide labels; (3) a phase-out of post-mold fluorination of plastic containers; and (4) environmental monitoring and biomonitoring of all PFAS pesticides to gather timely data on their bioaccumulation and potential impact on human and ecosystem health.
Published August 20, 2024, by E. Chase Dressman, Jack Hawkins, and Michael L. Meyer
On July 22, 2024, the Center for Food Safety and several other entities submitted a petition to EPA relating to the potential presence of PFAS in pesticide products registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The petition cites to studies and reports showing the presence of PFAS in registered pesticide products, EPA’s finding that PFAS can leach into pesticide products from fluorinated pesticide containers, and EPA’s acknowledgement of human health and environmental dangers associated with PFAS exposure. The petition requests that EPA take a broad range of actions to address the potential presence of PFAS in FIFRA-registered products, their active/inert ingredients, and fluorinated containers. The requested relief includes cancellation and/or suspension of existing pesticide ingredients alleged to be PFAS, updating regulatory definitions to more specifically define/address PFAS content, and expanded consideration of PFAS impacts during the pesticide registration process.
State Initiatives Articles
Published December 31, 2024, by Lynn L. Bergeson and Carla N. Hutton
On December 20, 2024, the Maine Department of Environmental Protection (MDEP) published a proposed rule regarding products containing intentionally added PFAS. The rule would establish criteria for currently unavoidable uses (CUU) of intentionally added PFAS in products and implement sales prohibitions and notification requirements for products containing intentionally added PFAS but determined to be a CUU.
Published December 27, 2024, by Lynn R. Fiorentino and Robert G. Edwards, Ph.D.
On December 29, 2023, bisphenol S (BPS) was added to the California Proposition 65 list as a female reproductive toxicant, following a 9-to-0 vote of the Developmental and Reproductive Toxicant Identification Committee (DARTIC) of the state’s Office of Environmental Health Hazard Assessment (OEHHA), the agency tasked with implementing Proposition 65. Therefore, the warning requirement for products presenting a “significant exposure” to BPS [went] into effect one year later, on December 29, 2024. Since OEHHA has not yet established a safe harbor level for BPS, almost any detectable level of BPS in a product may be considered as presenting a “significant exposure.”
Published December 19, 2024, by Gregory R. Wall and Paul T. Nyffeler, Ph.D.
The Virginia Department of Environmental Quality (DEQ) has begun issuing notifications to facilities in the Commonwealth that it has identified as potential sources of PFAS detected in public drinking water systems. DEQ’s notifications were issued pursuant to a recently enacted Virginia law intended to protect public health by reducing significant sources of certain PFAS in raw water sources of public water systems and to minimize the costs of public water systems to comply with federally mandated limits of these so-called “forever chemicals” from Virginia drinking water. On or before January 1, 2025, DEQ will release its Prioritization Plan, which is expected to identify approximately 10-12 public water systems that will be the focus of DEQ’s efforts to identify sources of PFAS and recommend regulatory and nonregulatory options for reducing PFAS levels in source waters in 2025.
Published December 12, 2024, by Renee Kalmes, M.S.P.H., CIH, Keith Morris-Schaffer, Ph.D., DABT, ERT, and Gwen Caviness, M.P.H.
In December of 2023, the California Environmental Protection Agency (CalEPA) OEHHA added BPS to the Proposition 65 list of chemicals known to cause reproductive toxicity. Now, a year after it was added to the list, manufacturers will be required to add warning labels to products containing BPS or demonstrate that exposure to BPS does not require a warning label. The BPS Prop 65 listing is effective as of December 29, 2024, with civil penalties of up to $2,500 per violation for failing to provide warning notices.
Published December 2, 2024, by Casey T. Clausen, Nessa Horewitch Coppinger, and Augustus E. Winkes
In November of 2024, the Oregon DEQ announced a rulemaking process to list PFOA and PFOS as hazardous substances under the Oregon Cleanup Law. The rulemaking would adopt EPA’s designation earlier in 2024 of PFOA and PFOS as hazardous substances under CERCLA.
Published October 10, 2024, by Greg Sperla, Stefanie Fogel, Allexanderia Bingham, Michael Nagelberg, and Vidhi Kumar
On September 18, 2024, the Washington Department of Ecology (the Department) shared a preliminary draft rule (Draft Rule) that would impose comprehensive restrictions and reporting requirements on manufacturers of 12 consumer product categories containing PFAS.
As set forth in the proposed rulemaking, restrictions and reporting requirements apply to specific consumer products that contain “intentionally added PFAS”—meaning PFAS that serves an intended function in the final product or in the manufacturing of the product, or part of the product. If adopted, manufacturers must comply with strict reporting requirements for nine product categories: apparel (extended use), footwear, recreational and travel gear, automotive waxes, cookware and kitchen supplies, firefighting PPE, floor waxes and polishes, hard surface sealers, and ski waxes. Manufacturers would also be restricted from manufacturing, selling, or distributing three consumer product categories containing intentionally added PFAS: apparel (not extended uses), automotive washes, and cleaning products.
Published October 3, 2024, by Greg Sperla, Stefanie Fogel, Allexanderia Bingham, and Michael Nagelberg
On September 29, 2024, California governor Gavin Newsom signed into law AB 347, adding comprehensive registration, certification, and enforcement provisions to California’s existing and forthcoming restrictions on the use of PFAS in covered products: juvenile products, textile articles, and food packaging.
The registration requirement may be the most expansive in recent memory. It will require all manufacturers of covered products, including thousands of apparel companies doing business in California, to register with the state, pay a fee, and certify compliance by 2029, with no exemption for small businesses or de minimis California sales.
Published October 3, 2024, by Lynn L. Bergeson and Carla N. Hutton
The Minnesota Pollution Control Agency (MPCA) held two public webinars in July 2024 to provide updates and answer questions on Minnesota’s PFAS in products law (Amara’s Law), which takes effect in stages between 2025 and 2032. MPCA has posted its presentations, recordings of the webinars, and written responses to questions received during the webinars.
Published October 1, 2024, by Sarahann Rackl, Ph.D., P.E., Sarah Parker, Ph.D., Allie Gobeil, Ph.D., Madeleine Bee, Ph.D., Sara Hearon, Ph.D., M.P.H., and Chau Reidy, Ph.D.
On September 29–30, 2024, California governor Gavin Newsom signed AB 347 and AB 2515, directing California’s Department of Toxic Substances Control (DTSC) to adopt regulations and publish acceptable testing methods for PFAS in juvenile products, textile articles, and food packaging (AB 347) and in menstrual products (AB 2515). Manufacturers of these products will have to register with DTSC, pay a fee, and provide compliance certification by July 1, 2029, with enforcement beginning in July 2030.
Published October 1, 2024, by Joo Cha Webb, Caitlin C. Blanche, and Derek C. Smith
PFAS laws will significantly impact the fashion industry come 2025. New York and California have each passed legislation that will regulate the use—and eventual phaseout—of PFAS in apparel and other textiles.
The New York bill (S.1322/A.994) is focused on restricting apparel with intentionally added PFAS. California's bill, however, has a broader reach. California Assembly Bill 1817 will prohibit the manufacture, distribution, or sale of any apparel and other textile articles with intentionally added PFAS or a total organic fluorine content in excess of 100 parts per million (ppm).
Published September 26, 2024, by Derick D. Dailey, Toni Michelle Jackson, Peter C. Condron, and Matt Menezes
Plastic pollution is a growing concern worldwide, and state attorneys general increasingly turn to litigation to address this issue. These lawsuits tend to focus on alleged deceptive advertising and misleading statements, but sometimes include public nuisance claims to address alleged injuries to the environment and public health. Broadly, the actions of state attorneys general target companies directly for the products they sell and the claims they make to sell them, de-emphasizing consumer choice as a driver of these harms.
Miscellaneous
Published January 30, 2025, by Katie Palmquist, Ph.D., Alex Revchuk, D.Env., P.E., BCES, and Kristin Robrock, Ph.D., P.E.
To combat the Los Angeles wildfires, aircraft dropped pink fire retardant on vegetation and hillsides to slow the rate of burn, coating surfaces in a blanket of ammonium phosphate and iron oxide. This use of flame retardant has spurred concerns over the environmental and ecological safety of aerially applied fire retardants, especially to stream ecosystems and water supplies.
The unease regarding fire retardant safety is not limited to the Golden State. With global climate change and increasing extreme weather-related conditions, states throughout the U.S. are struggling to sustainably manage wildfires.
Assessing the ecological and water quality impacts of wildfire runoff and wildfire control methods, like fire retardants, requires a thorough investigation that utilizes a comprehensive understanding of baseline conditions, wildfire severity, retardant use, and subsequent environmental conditions.
