United States: The Chemical Compound (April 2017)

Welcome to the first edition of The Chemical Compound, a publication of Arnold & Porter Kaye Scholer's Environmental Practice Group. This newsletter provides updates on litigation and federal and state regulatory and legislative developments for chemicals of concern to business. Our initial focus is on perfluorooctanoic acid (PFOA), hexavalent chromium, trichloroethylene (TCE), and 1,4-dioxane, including vapor intrusion risks. We may expand to include additional chemicals in future issues, and we welcome your feedback on chemicals of interest to your organization. In the meantime, we hope you find this publication informative and useful.

LITIGATION UPDATE

Perfluorooctanoic Acid (PFOA)

In re: E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation (S.D. Ohio)

On February 13, 2017, DuPont and Chemours announced a $670.7 million settlement with plaintiffs in the Ohio multidistrict litigation (MDL) to resolve claims relating to the release of PFOA (also known as C-8) from the Washington Works plant in West Virginia ("C-8 Litigation"). The settlement, if approved, would resolve the more than 3,500 claims currently pending in the MDL, including those for which jury verdicts had already been delivered.

The personal injury actions resolved by this settlement stemmed from a 2004 settlement that, among other remedies, established an independent panel to study the health impacts of PFOA and allowed for certain contingencies, such as the creation of a medical monitoring fund and the option to file personal injury actions, if the panel found a probable link between PFOA exposure and human health effects.1 In 2011 and 2012, the health panel reported that it found such a probable link.2

The 2017 settlement agreement follows jury verdicts against DuPont in three of four "bellwether" cases. The plaintiffs in these cases were awarded $8.7 million in compensatory damages and $11 million in punitive damages.3 They alleged various injuries as a result of exposure to PFOA, including kidney cancer and testicular cancer. The fourth bellwether case, Moody v. E.I. du Pont de Nemours (S.D. Ohio), began on January 17, 2017. Ten additional trials were scheduled for between May 1, 2017 and July 31, 2017, and DuPont was set to face a total of 40 trials during 2017.

It remains to be seen what impact this settlement, and the C-8 Litigation generally, may have on pending PFOA actions, particularly those involving similar personal injury. However, the successful assertion of personal injury claims in the C-8 Litigation may prompt additional litigation involving PFOA and a related compound, perfluorooctanesulfonic acid (PFOS).

Bates v. The 3M Company (E.D. Pa.)

Pennsylvania residents living near the Willow Grove Naval Air Station and the Naval Air Warfare Center brought a lawsuit in October 2016 against 3M and a number of manufacturers and distributors of Aqueous Film Forming Foam (AFFF), a firefighting foam containing PFOA and PFOS.4 The class action alleges that residents in the communities near the bases have been subjected to unsafe levels of PFOA and PFOS for years. The plaintiffs seek medical monitoring, funding for a blood testing program, monetary compensation for property damages, punitive damages, and injunctive relief requiring defendants to implement a groundwater well-testing program and install permanent filtration devices.

Tennessee Riverkeeper, Inc. v. 3M (N.D. Ala.)

On February 16, 2017, Northern District of Alabama Judge Abdul K. Kallon rejected a motion by 3M and other defendants to dismiss a Resource Conservation and Recovery Act (RCRA) suit filed by Tennessee Riverkeeper relating to the release of PFOA and PFOS from a 3M manufacturing plant in Decatur, Alabama.5 Tennessee Riverkeeper is seeking injunctive relief requiring 3M to remediate soil contamination at its facility and sediment contamination in the Tennessee River, and enjoining 3M and the other defendants from disposing of wastes containing PFOA and PFOS in landfills without liners to prevent these substances from entering the groundwater.

In its motion to dismiss, 3M argued that the suit was preempted to the extent that it was duplicative of remedial actions that 3M is already undertaking pursuant to an agreement with the Alabama Department of Environmental Management (ADEM). The Court disagreed and identified several areas where Tennessee Riverkeeper was seeking relief other than the remedial actions required by ADEM. The Court also rejected the defendant City of Decatur's argument that its release of PFOA and PFOS into the Tennessee River was authorized under its NPDES permit, as the NPDES permit only allowed for discharges of non-hazardous waste and the defendants had not shown that PFOA and PFOS are non-hazardous.

Hexavalent Chromium

Nichols v. Carlton Forge Works (Cal. Super.)

Doris Nichols, on behalf of herself and others, brought an action in February 2017 against Carlton Forge Works, Aerocraft Heat Treating Company and Anaplex Corporation under California Proposition 65 alleging that the companies used hexavalent chromium in their metal treatment and fabrication operations, causing a release of hexavalent chromium into the air and onto property owned by Ms. Nichols and others.6 Notably, in December 2016, the Los Angeles County Department of Health issued directives to two of the facilities mentioned in this action related to the detection of high levels of hexavalent chromium in the air. The plaintiffs in this action are seeking compensatory and punitive damages, as well as civil penalties under Proposition 65.

Weiner v. Aerocraft Heat Treating Co. (Cal. Super.)

Allison Weiner and other residents of Paramount, California brought suit in February 2017 against Aerocraft Heat Treating Company, Anaplex Corporation, Carlton Forge Works and other Paramount, California metal forging companies alleging personal injury and property damages arising from hexavalent chromium emissions.7 The plaintiffs are pursuing causes of action relating to nuisance, trespass, intentional infliction of emotional distress, and violations of California's Unfair Competition Law. The plaintiffs are seeking monetary damages as well as injunctive relief requiring the defendants to clean up the contamination on their properties.

Pacific Gas & Electric Company Hexavalent Chromium Cases (C.D. Cal.)

More than 15 pro se plaintiffs filed actions in April 2016 against Pacific Gas & Electric Company (PG&E) under 42 U.S.C. §§ 1983 and 1985(3) alleging that their civil rights were violated when PG&E's remedial operations to remove hexavalent chromium contamination from the Hinkley Aquifer in Southern California caused arsenic and uranium to enter their drinking water wells.8 The plaintiffs also allege the existence of a conspiracy between PG&E and the local water board to prevent discovery of the contamination. Since the actions were filed in April 2016, District Court Judge Kenly Kiya Kato has granted two Motions to Dismiss filed by PG&E. However, Judge Kato has also granted the plaintiffs' multiple motions for leave to file amended complaints, including their most recent motion on February 13, 2017.

PG&E has been addressing hexavalent chromium contamination around the Hinkley Aquifer for decades and previously settled claims brought by residents of the area for more than $600 million.9

FEDERAL REGULATORY & LEGISLATIVE ACTION

EPA Issues TCE Rulemakings Under TSCA Section 6(a) Authority

In early 2017, EPA promulgated two proposed rulemakings on TCE pursuant to its authority under Section 6(a) of the Toxic Substance Control Act (TSCA): one related to the use of TCE in vapor degreasing and the other related to the use of TCE in aerosol degreasing and spot cleaning.10 In the rulemakings, EPA stated that it had identified "significant risks" associated with TCE and proposed a prohibition on the manufacture, import, processing, and distribution of TCE for these purposes.11 EPA is soliciting comments on both proposed rulemakings. The current deadline to submit comments for the rulemaking on the usage of TCE in vapor degreasing is April 19, 2017 and the deadline for the rulemaking related to aerosol degreasing and spot cleaning was March 16, 2017.12

EPA has also included TCE on its initial list of ten "high priority" substances that will undergo risk evaluations established by the amended TSCA.13 EPA held a meeting on February 14, 2017 to discuss the scope of its risk evaluation for TCE (and the other high priority substances).14 According to EPA, through the meeting and the solicitation of written comments, it is seeking to learn more about the usage of TCE so that it may develop targeted risk evaluations.15 Although EPA will not be issuing draft scoping documents for the risk evaluations, it is accepting comments on scoping.16 The deadline for comments was March 15, 2017. EPA has set up a docket specifically for comments about the scoping of the risk evaluation for TCE.17

Vapor Intrusion Rulemaking Delayed

EPA published a final rule on January 9, 2017 adding subsurface intrusion of contaminants, including vapor intrusion, to the Hazard Ranking System (HRS).18 The HRS is EPA's mechanism for evaluating sites to be placed on the Superfund National Priorities List (NPL). The new rule would allow EPA to place a site on the NPL based on subsurface intrusion risks at the site, even if the site would not otherwise qualify for the NPL. In promulgating this rulemaking, EPA specifically identified contaminants from dry cleaning solvents and industrial degreasers as hazardous substances that may migrate into buildings through subsurface intrusion. During the rulemaking process, EPA reviewed 1,073 sites in its Superfund Enterprise Management System (SEMS) and determined that, of these, 18 sites may qualify for placement on the NPL based on threats from subsurface intrusion.19 The addition of subsurface intrusion to the HRS, however, is not expected to increase markedly the number of sites on the NPL.

The final subsurface intrusion rule was set to take effect on February 8, 2017, but was delayed by a January 20, 2017 memorandum from the White House Chief of Staff, which also delayed numerous other regulations that had been finalized but had not yet taken effect.20 The subsurface intrusion rule is now scheduled to take effect on May 22, 2017, however the effective date may be further delayed if the EPA decides to conduct a "substantive review" of the rule.21

Congressman Calls on EPA to Set a Drinking Water Standard for Hexavalent Chromium

Texas Congressman Al Green introduced a resolution on February 17, 2017, calling on EPA to complete its assessment of the human health effects of hexavalent chromium and to set a standard for hexavalent chromium in drinking water.22 The resolution, H. Res. 147, expresses concern over elevated levels of hexavalent chromium in drinking water.23 H. Res. 147 suggests that there is Congressional interest in regulating hexavalent chromium, however the resolution is largely symbolic and will not be binding on EPA, even if approved by the House of Representatives.

STATE REGULATORY & LEGISLATIVE ACTION

New Jersey

The New Jersey Senate Environment and Energy Committee heard testimony on January 30, 2017, about the potential human health risks posed by hexavalent chromium levels in New Jersey's drinking water. Stakeholders, including the Sierra Club and the American Chemistry Council, provided testimony at the hearing.24 The hearing comes after the Environmental Working Group (EWG) released a list of more than 130 towns in New Jersey with elevated levels of hexavalent chromium in their water.25 The EWG report also led to calls from New Jersey state legislators in September 2016 for the state to reexamine its drinking water standards for hexavalent chromium.26

California

  1. The Los Angeles County Department of Public Health issued Public Health Directives to two local companies in December 2016, ordering each company to take immediate action to address elevated levels of hexavalent chromium emissions from their operations.27 After one of the companies, Anaplex Corporation, hesitated to comply with the order, Los Angeles County and the South Coast Air Quality Management District filed a public nuisance action in state court seeking an injunction requiring the company to comply with the terms of the directive.28 The injunction was denied on the grounds that the South Coast Air Quality Management District's independent hearing board had jurisdiction over this matter, not the state court.29 On January 10, 2017, the South Coast Air Quality Management District issued an order requiring Anaplex Corporation to reduce its hexavalent chromium emissions and to obtain permits for all of its hexavalent chromium-emitting equipment.30
  2. Last fall, California's Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of intent to list31 PFOA and PFOS as reproductive toxicants under Proposition 65.32 The basis for the proposed listing is the "authoritative body" mechanism, under which OEHHA relies on statements by EPA regarding developmental toxicity of PFOA and PFOS.33 The comment period on the listing ended on November 16, 2016. OEHHA will review the comments and issue a notice of the final decision regarding listing. If the chemicals are listed, warnings under Proposition 65 will be required beginning one year after the listing.

Michigan

Heidi Grether, Director of the Michigan Department of Environmental Quality (MDEQ), has requested an additional $2.6 million in state funding to address vapor intrusion risks at an estimated 4,000 sites in Michigan, including sites with "due care" plans for residual contamination that MDEQ previously considered closed.34 MDEQ took action to address vapor intrusion at over 40 sites across the state in the past 12 months alone.35 Vapor intrusion risks have also prompted an increasing number of required evacuations.36 For example, a TCE vapor intrusion risk resulted in the evacuation of an apartment building in Michigan in November 2016 after TCE was detected in the air inside of the building.37

New York

New York State Senator Todd Kaminsky introduced legislation (S. 2683) that would require the New York State Department of Health to set a drinking water limit for 1,4-dioxane.38 With the introduction of this legislation, Senator Kaminsky and other State Senate Democrats released a New York State Senate Democratic Policy Group report titled "Unpoisoning the Well: 7 Ways New York Can Better Protect Your Drinking Water." This plan calls on New York State to act "aggressively" to regulate 1,4-dioxane, hexavalent chromium and other substances.39 It also calls on New York State to review toxic contaminants identified by EPA and other states and to inform the public about its plan to protect them from these contaminants. New York State Governor Andrew Cuomo has also recently drawn attention to 1,4-dioxane, publicly calling on EPA to set a drinking water threshold for the substance.40

Footnotes

1. Leach v. E.I. du Pont de Nemours and Co., No. 01-C-608 (W. Va. Cir. 2004).

2. C-8 Science Panel. "C-8 Probable Link Reports," accessed February 17, 2017.

3. See Bartlett et al. v. E.I. du Pont de Nemours and Co., No. 2:13-cv-00136 (S.D. Ohio October 7, 2015) (awarding $1.6 million in compensatory damages); Freeman v. E.I. du Pont de Nemours and Co., 2:13-cv-01103 (S.D. Ohio July 6, 2016) (awarding $5.1 million in compensatory damages and $500,000 in punitive damages); Vigneron v. E.I. du Pont de Nemours and Co., 2:13-cv-00136 (S.D. Ohio December 21, 2016) (awarding $2 million in compensatory damages and $10.5 million in punitive damages).

4. Bates et al. v. 3M Company, No. 2:16-cv-04961-PBT (E.D. Pa.).

5. Tennessee Riverkeeper, Inc. v. 3M Co., Case No. 16-1029-AKK (N.D. Ala.).

6. Nichols v. Carlton Forge Works, Case No. BC 650094, 2017 WL 599061 (Cal. Super. Feb. 9, 2017).

7. Weiner v. Aerocraft Heat Treating Co., Case No. BC652102 (Cal. Super.).

8. See, e.g., Ramirez v. Pac. Gas & Elec. Co., Case No. EDCV 16-0680-DMG-KK (C.D. Cal.); Vinson v. Pac. Gas & Elec. Co., Case No. SACV 16-514-DMG-KK (C.D. Cal.); Riebeling v. Pac. Gas & Elec. Co., Case No. CV 16-2312-DMG-KK (C.D. Cal.).

9. David Pierson and Hemmy So, PG&E Will Pay Residents Who Sued Over Groundwater Pollution, The Los Angeles Times (Feb 4, 2006).

10. Trichloroethylene (TCE); Regulation of Use in Vapor Degreasing Under TSCA Section 6(a), 82 Fed. Reg. 7,432 (Jan. 19, 2017); Trichloroethylene; Regulation of Certain Uses Under TSCA § 6(a), 81 Fed. Reg. 91,592 (Dec. 16, 2016).

11. TCE; Regulation of Use in Vapor Degreasing, 82 Fed. Reg. at 7,433; TCE; Regulation of Certain Uses, 81 Fed. Reg. at 91,593-91,594.

12. Trichloroethylene (TCE); Regulation of Certain Uses Under Toxic Substances Control Act; Extension of Comment Periods, 82 Fed. Reg. 10,732 (Feb. 15, 2017).

13. Designation of Ten Chemical Substances for Initial Risk Evaluations Under the Toxic Substances Control Act, 81 Fed. Reg. 91,927, 91, 928 (Dec. 19, 2016).

14. Risk Evaluation Scoping Efforts Under TSCA For Ten Chemical Substances; Notice of Public Meeting, 82 Fed. Reg. 6,545 (Jan. 19, 2017).

15. EPA's Office of Pollution Prevention and Toxics, Public Meeting on Chemical Use Information (Feb. 14, 2017) at Slide 6.

16. Id. at Slide 5.

17. EPA, Trichloroethylene; TSCA Review and Scoping.

18. Addition of a Subsurface Intrusion Component to the Hazard Ranking System, 82 Fed. Reg. 2,760 (Jan. 9, 2017).

19. Id. at 2,771.

20. Memorandum for the Heads of Executive Departments and Agencies, Regulatory Freeze Pending Review (January 20, 2017).

21. Further Delay of Effective Dates for Five Final Regulations Published by the Environmental Protection Agency Between December 12, 2016 and January 17, 2017, 82 Fed. Reg. 14,324, 14,325 (March 20, 2017).

22. H.R. 147, 115th Cong. (2017).

23. Id.

24. Michelle Brunetti, "Health Risk of Hexavalent Chromium in State's Drinking Water Debated," Press of Atlantic City (Jan. 31, 2017).

25. Environmental Working Group, Interactive Map - "Erin Brockovich Chemical Taints Tap Water of 218 Million Americans" (2016) ().

26. Scott Fallon, Legislators Seek Answers on Cancer-Causing Toxin Found in Water, Courier-Post (Sept. 22, 2016).

27. Letter from Cyrus Rangan, Los Angeles County Department of Public Health, to Carmen Campbell, Anaplex Corporation (Dec. 1, 2016); letter from Cyrus Rangan, Los Angeles County Department of Public Health, to Greg Stonick, Aerocraft Heat Treating Company (Dec. 1, 2016).

28. Asia Morris, Anaplex Ordered to Obtain Proper Permits or Face Shutting Down, Rendon Calls for More Actions, Long Beach Post (Jan. 12, 2017).

29. Paul Glickman and Rebecca Plevin, Judge Rejects Cleanup Order Against Paramount Firm, 89.3 KPCC (Dec. 22, 2016).

30. Anaplex Ordered to Obtain Proper Permits or Face Shutting Down, Rendon Calls for More Actions, supra n. 28.

31. OEHHA, Notice of Intent to List PFOA/PFOS (Sept. 16, 2016).

32. The Safe Drinking Water and Toxic Enforcement Act of 1986, codified at California Health and Safety Code section 25249.6 et seq.

33. Specifically, OEHHA relies on the following EPA documents: Drinking Water Health Advisory (HA) for Perfluorooctanoic Acid (PFOA) (US EPA, 2016a); Health Effects Support Document for Perfluorooctanoic Acid (US EPA, 2016b); Drinking Water Heath Advisory for Perfluorooctane Sulfonate (PFOS) (US EPA, 2016c); Health Effects Support Document for Perfluorooctane Sulfonate (US EPA, 2016d).

34. Michael Gerstein, Mich. DEQ Chief: 'Vapor Intrusion' Poses Health Threat, The Detroit News (Feb. 16, 2017).

35. Garret Ellison, Poison Vapor Evacuations Increase as Old Chemical Threats Resurface, Michigan Live (Feb. 26, 2017).

36. Id.

37. Mich. DEQ Chief: 'Vapor Intrusion' Poses Health Threat, supra n. 34.

38. New York (State). Legislature. Senate. An act to amend the public health law, in relation to 1,4-Dioxane. S2683. 2017-2018 Legislative Session (Jan. 17, 2017).

39. New York State Senate Democratic Policy Group, Unpoisoning the Well: 7 Ways New York Can Better Protect Your Drinking Water (Feb. 2016).

40. Press Release, New York State, Governor Cuomo Calls on EPA to Set Clear and Enforceable Drinking Water Standard for 1,4-Dioxane (Feb. 11, 2017).

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