EPA Incites Further Controversy Proposing to Designate Forever Chemicals Under CERCLA

While critics may say the federal government has been slow to react to PFAS, last week the EPA took its most aggressive stance — publishing its notice for a proposed federal rule to designate two specific PFAS compounds, PFOA and PFOS, as “hazardous substances” under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and now the clock is ticking. 

Found in surface water, air, soil, and even more recently food packaging, PFOA and PFOS were used pervasively in American manufacturing beginning in the 1940s for their durability, heat/grease resistance, and waterproof nature, and quickly assumed the nomenclature “forever chemicals” because of their remarkable inability to decompose. 

When talking shop, lawyers, insurance carriers, and manufacturers alike have labeled PFAS the ‘emerging contaminant’ to watch out for …

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EPA Proposes to Designate PFOA and PFOS as Hazardous Substances under CERCLA

Friday of last week the U.S. Environmental Protection Agency (“EPA”) published a proposed rule that would designate perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), including their salts and structural isomers, as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as CERCLA). The designations, if finalized, could have direct and indirect impacts on a range of individuals and companies, as well as the federal government itself.

The five broad categories of entities potentially affected by this designation as …

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EPA Previews 2021 List of Toxic Release Inventory

On July 28, 2022, the Environmental protection Agency (“EPA”) released its preliminary 2021 Toxics Release Inventory (“TRI”).  The purpose of the TRI is to give the public critical information regarding chemical releases, waste management, and pollution prevention undertaken at both federal and industrial facilities in the United States.  

The TRI program was created by Congress in 1986 as part of the Emergency Planning and Community Right to Know Act.  Chemicals that are covered by the program include those that have adverse health or environmental …

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Trade Association Submits Challenge to EPA’s New PFOA and PFOS Health Advisories

As reported in our blog back in June, the Environmental Protection Agency unveiled new drinking-water health advisories (HAs) for PFAS contaminants. Specifically, the advisories drastically reduced acceptable PFOA and PFOS water levels from 70 parts per trillion (set in 2016) down to 0.004 parts per trillion for PFOA and 0.02 parts per trillion for PFOS.  

These new advisories, however, are already the subject of attack. Last week, a leading trade association filed a petition challenging these new HAs.  

The petition was filed with the U.S. …

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School’s Out for Summer, but EPA’s Latest PFAS Drinking Water Health Advisory Order is No Vacation for the Regulated Industry or Litigants

If you drink water, pay a water bill, or watch the news, you’ve undoubtedly heard or seen (but were likely unable to pronounce) the acronyms for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), two of the most recognized compounds within the family of per- and polyfluoroalkyl substances.

Known as PFAS compounds, they were used pervasively in American manufacturing dating back to the 1940s and assumed the nomenclature “forever chemicals” because of their remarkable and arguably useful ability to not decompose. PFAS’ unique resistance to breaking …

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Plaintiffs in PFAS Food-Packaging Case Met With Motion to Dismiss

A few weeks ago, our blog reported on a number of complaints filed against some of the most recognizable fast food chains, arising from alleged PFAS-containing food wrappers. The alleged concern is that PFAS contained in the wrapper, for example, will migrate into the food itself, creating exposure through consumption of the food. Now, a fast-food chain named in one of the suits is hitting back. A few days ago, the chain filed a motion to dismiss the proposed class action, proffering a number of …

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Can Product Labels Be Used to Predict the Presence of PFAS? A New Study Says “Likely” for Stain- and Water-Resistant Marketed Products; Less Likely for “Green” Marketed Products

“How Well Do Product Labels Indicate the Presence of PFAS in Consumer Items Used by Children and Adolescents?” is the name of a new study published last week by the American Chemical Society, in Environmental Science & Technology. Focusing on children’s’ products, the study’s abstract states that because “product labels rarely list chemical additives, including PFAS,” the authors “evaluated whether other information on product labels can be used by consumers to select products without PFAS.”

“The primary goal of this study was to investigate …

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Recommending Federal Discharge Standards for PFAS in Aquatic Life

Known as “forever” chemicals, many PFAS compounds are found in the blood of people and animals all over the world.  They also present at low levels in various food products and in the water, air, fish and soil in many areas. 

Many environmental advocates have called for the U.S. Environmental Protection Agency (EPA) to set enforceable federal discharge standards for PFAS under the Clean Water Act.  Currently, no such federal regulations exist.  Water utilities in various states have expressed concern that these types of regulations …

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There’s PFAS in my burger, my fries, my lipstick, and my underwear? How PFAS Litigation has become a game of Whack-A-Mole.

The world’s most recognizable food chains are under heightened scrutiny these days, not for the nutritional value of their products, but for their iconic food packaging. Just last month, a class action complaint filed in federal court in Illinois alleged a popular chain concealed from consumers the presence of PFAS in its food products.  Weeks later, a separate plaintiff sued yet another beloved fast food chain in federal court in California challenging the claim that it uses sustainable packaging and real ingredients. While the kings …

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Do Your Plastic Bottles Leach PFAS?

On March 16, 2022, the U.S. EPA Press Office issued a news release about implementing two key actions to prevent exposure from products with PFAS (Per- and Polyfluoroalkyl).

The first action involves notification about fluorinated bottles; the second calls for the removal of two PFAS from the EPA’s Safer Chemicals Ingredients List. These two actions are consistent with the deadlines set in the “PFAS Strategic Roadmap; the EPA’s Commitment to Action 2021-2024”. The so-called roadmap—issued by the EPA in October 2021—is a relatively short (25 …

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