United States: 2023 PFAS Year In Review: EPA Policy And Aqueous Film-Forming Foam Litigation Updates

Highlights

• Per- and polyfluoroalkyl substances (PFAS) remained a policy priority nationwide in 2023, with the U.S. Environmental Protection Agency (EPA) and state environmental agencies engaging in considerable planning and rulemaking regarding drinking water, wastewater discharges, cleanup responsibility, chemical reporting and product-related restrictions.
• Among litigation developments were two settlements for PFAS contamination in drinking water that cost PFAS manufacturers a combined $11.5 billion in settlements to states and municipalities.
• This Holland & Knight alert takes a look at these and other key 2023 events that occurred surrounding PFAS and other hazardous substances that many industries will need to comply with, such as manufacturing, brands, landfills, publicly owned treatment works, chemical transport and storage, and developers.

2023 was a busy year for folks following legal developments related to per- and polyfluoroalkyl substances (PFAS). In December, the U.S. Environmental Protection Agency (EPA) issued its Second Annual Progress Report. Some of the highlights are described below, along with an update on the massive PFAS multidistrict litigation pending in South Carolina.

Drinking Water Regulations

Building on its plans in the 2021 PFAS Strategic Roadmap, the EPA in March 2023 released a proposed PFAS National Primary Drinking Water Regulation that would establish legally enforceable drinking water Maximum Contaminant Levels (MCLs) for the following six PFAS compounds:

• perfluorooctanoic acid (PFOA)
• perfluorooctane sulfonic acid (PFOS)
• perfluorononanoic acid (PFNA)
• GenX chemicals: hexafluoropropylene oxide dimer acid (HFPO-DA)
• perfluorohexane sulfonic acid (PFHxS)
• perfluorobutane sulfonic acid (PFBS)

The MCLs and nonenforceable, health-based Maximum Contaminant Level Goals (MCLGs) are:

According to the December 2023 edition of the Office of Management of Budget's Regulatory Agenda, the final rule is expected to be finalized in early 2024. Once finalized, public water systems will have three years to implement required monitoring and reporting, and extensions of up to an additional two years may be authorized by the EPA. In effect, this regulation will streamline PFAS maximum contaminant levels across the nation and seeks to improve PFAS water treatment infrastructure.

Wastewater

As outlined by the PFAS Strategic Roadmap, the EPA has issued actions to address PFAS discharged into wastewater. The two primary actions proposed on this front have been to leverage National Pollutant Discharge Elimination System (NPDES) permitting to reduce PFAS discharges and to publish Effluent Limitation Guidelines (ELGs) to restrict PFAS discharges into municipal wastewater treatment facilities. In order to effectively promulgate these regulations, the EPA is currently conducting industry studies and monitoring wastewater for the presence of PFAS.

As of now, the EPA has not promulgated any binding changes to the NDPES permitting programs, but it has issued guidance for state environmental agencies and NDPES permit issuers that recommends adopting the full suite of PFAS monitoring techniques being used by the EPA.

In a similar vein, the EPA has not released actionable ELGs to restrict PFAS discharges as of now. In the Strategic Roadmap, the EPA predicted that it will make "significant" ELG regulatory work by the end of 2024. Currently, the EPA is continuing its multi-industry study of PFAS discharges and is utilizing the ELG program to conduct industry-specific studies, as described in Effluent Guidelines Program Plan 15 (Plan 15). Specifically, the EPA is evaluating the concentrated animal feeding operations (40 CFR Part 412) and nationwide data on industrial discharges of PFAS to publicly owned treatment works. Through Plan 15 to date, the EPA has determined that revisions to the effluent guidelines and standards for landfills (40 CFR Part 445) are warranted and will not pursue further action regarding the electrical and electronic components industry (40 CFR Part 469). However, it will continue to monitor PFAS discharges from the electrical and electronic components industry, pulp, paper and paperboard category (40 CFR Part 430), and airports.

Toxic Substances Control Act

The EPA published a final rule in October 2023 to amend Section 8 reporting requirements under the Toxic Substances Control Act (TSCA) that would require persons who manufacture (including those who import – the rule defines "importing" PFAS as manufacturing) or have manufactured these chemical substances in any year since Jan. 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures and hazards. The regulations, 40 CFR Part 705, which became effective on Nov. 13, 2023, have enormous implications. The EPA estimates that the final rule will affect 131,410 respondents and require 11.6 million hours of effort to respond at a cost of $843 million.

The final rule relies on a structural definition of PFAS that EPA estimates will mean at least 1,462 PFAS that are known to have been made or used in the U.S. since 2011 will be subject to the rule. Given its broad language, the final rule requires an investigation across the entire enterprise, as well as upstream supply chains and downstream end users. The final rule contains no volume exemptions and requires reporting of information known or reasonably ascertainable by the reporting entity. Electronic reports are due 18 months from the Nov. 13, 2023, effective date. Reporting entities will very likely need all 18 months to come close to meeting the comprehensive reporting obligations and to build compliance systems to keep up with ongoing requirements.

Toxic Release Inventory

EPA published a final rule changing reporting requirements for PFAS listed in the Toxic Release Inventory (TRI) on Oct. 31, 2023. The final rule includes PFAS currently on the TRI and automatically includes additional PFAS added pursuant to sections 7231(b) and (c) of the 2020 National Defense Authorization Act to the list of as chemicals of special concern, eliminates the de minimis exemption for "Supplier Notification Requirements" for all chemicals of special concern and limits the use of range reporting that had significantly reduced the burden on reporting entities. The EPA contends that elimination of the de minimis exemption and range reporting options will provide a more complete picture of PFAS releases and waste management quantities.

CERCLA

The EPA published its proposed rulemaking in the Federal Register in September 2022, with the agency proposing to designate PFOA and PFOS as hazardous substances under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. § 9601 et seq. In March 2023, the EPA held two listening sessions to hear the input of individuals concerning this proposal and to consider whether and to what extent it should develop enforcement discretion guidance given the impact a CERCLA designation would have. The EPA also announced on April 13, 2023 that it was considering whether it would eventually designate seven additional PFAS as hazardous substances under CERCLA.

Originally, the EPA had sought to finalize its proposed rule to designate PFOA and PFOS as CERCLA hazardous substances by August 2023. But when the EPA published its spring unified agenda on June 13, 2023, the agency delayed finalizing the rule until February 2024. The rule is now expected to be finalized in March 2024 after it was submitted to the U.S. Office of Management and Budget on Dec. 6, 2023.

Air Permitting

The EPA announced on July 25, 2023, a proposed rule, published in the Federal Register on Aug. 9, 2023, to update the Air Emissions Reporting Requirements (AERR) to collect certain additional emissions data critical for performing air quality and risk analyses, among other regulatory and nonregulatory activities. This proposed action would allow for the EPA to annually collect (starting in 2027) hazardous air pollutant (HAP) emissions data for point sources, among other things. Among the wide-ranging topics covered by the voluminous filing is the EPA's request for comment on how it could include PFAS reporting requirements in the final rule.

Among the considerations is to add the list of PFAS substances subject to EPA's TRI reporting requirements to the tables associated with 40 CFR Part 51, Subpart A at the same reporting level as the TRI reporting requirement. This is the level set by Congress for TRI reporting in Section 7321 of the National Defense Authorization Act (NDAA) for fiscal year 2020 enacted Dec. 20, 2019, which EPA indicates would reduce complexity and burden on parties required to report. Given the comment period didn't close until November 2023, no timeline for finalization has been identified.

Safer Choice Standard Updates

In July 2023 EPA announced its proposed expansion of its Safer Choice and potentially its Design for the Environment (DfE) programs to include certification of additional product categories beyond cleaners and disinfectants. Safer Choice and DfE are voluntary EPA programs that help consumers, businesses and purchasers find cleaning and disinfectant products. Given the increasing consumer interest in chemicals used in products, the EPA is working to expand its certification programs to potentially address PFAS and meet stringent EPA criteria for effects on human health and the environment. Given all the states that have passed or are considering regulations governing PFAS in products as described in this Holland & Knight alert, EPA's efforts in this area will be interesting to watch.

Aqueous Film-Forming Foam (AFFF) Multidistrict Class Action Litigation

Currently, more than 6,000 cases involving the use of PFAS in firefighting foam and turnout gear have been consolidated in the multidistrict class action litigation before the U.S. District Court for the District of South Carolina. The most important developments in the cases include settlements and selection of specific cases for bellwether trials (or settlements).

Two settlements for PFAS contamination of drinking water from public water suppliers were offered in June and July 2023. Manufacturers of PFAS settled with promised payments to, or for the benefit of, many states and municipalities, as well as water authorities for a combined value of $11.5 billion. These settlements also covered the case that had otherwise been selected for a bellwether trial.

By the end of 2023, South Carolina District Judge Richard Gergel was in the process of selecting 28 cases for a pool of bellwether personal injury cases in which to conduct discovery. Some of those cases will thereafter be selected to go to trial, unless settled. These bellwether cases are narrowly tailored to cover personal injury plaintiffs who 1) have worked at specific military locations, 2) have been diagnosed with a narrow set of specific diseases (i.e., kidney cancer, prostate cancer, hypothyroidism and ulcerative colitis), and 3) allege that the diseases were caused by drinking water contaminated by PFAS at the military installation where they worked and, in some cases, lived. On Dec. 12, 2023, co-lead counsel for the plaintiffs and co-lead counsel for the defendants proposed 25 individuals for this bellwether discovery pool.

Bellwether cases involving the AFFF known as Telomer are also being prepared, with Judge Gergel initially selecting four cases and requesting defendants and plaintiffs agree on two additional cases for the pool. The defendants and the plaintiffs were unable to agree, and Judge Gergel eventually chose two additional cases, one proposed by the defendants and one proposed by the plaintiffs. Trial for these cases is scheduled for Aug. 24, 2024.

On Dec. 5, 2023, Judge Gergel also issued an order giving the parties 60 days to set forth a plan to identify diseases not addressed in the existing bellwether program, a plan for selection of experts and a plan for selecting additional bellwether cases to address such personal injury cases.

Conclusion

Given the stakes at hand and considerable action that took place on these matters in 2023, there will be much to watch for in 2024.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.