"Contaminants Compass" is a monthly newsletter that provides updates, legal observations and actionable tips to navigate the evolving legal challenges of per- and polyfluoroalkyl substances (PFAS). This edition discusses the addition of nine PFAS to the Environmental Protection Agency's Toxics Release Inventory; Minnesota's request for comment on the state's new PFAS ban; new PFAS litigation (including multiple lawsuits over alleged PFAS contamination); and details of a recent EPA report on biosolids.
Look for new editions every month and feel free to reach out to the McGuireWoods team with questions regarding PFAS issues.
I. What's Happening on the Federal PFAS Regulatory Front
EPA Adds Nine PFAS to Toxics Release Inventory
On Jan. 3, 2025, the EPA announced the automatic addition of nine PFAS substances to the list of chemicals covered by the Toxics Release Inventory (TRI) for reporting year 2025, pursuant to Section 7321(c) of the National Defense Authorization Act. A total of 205 PFAS are now subject to the TRI for reporting year 2025.
The nine additional PFAS are:
- Ammonium perfluorodecanoate (PFDA NH4) (3108-42-7)
- Sodium perfluorodecanoate (PFDA-Na) (3830-45-3)
- Perfluoro-3-methoxypropanoic acid (377-73-1)
- 6:2 Fluorotelomer sulfonate acid (27619-97-2)
- 6:2 Fluorotelomer sulfonate anion (425670-75-3)
- 6:2 Fluorotelomer sulfonate potassium salt (59587-38-1)
- 6:2 Fluorotelomer sulfonate ammonium salt (59587-39-2)
- 6:2 Fluorotelomer sulfonate sodium salt (27619-94-9)
- Acetic acid, [(γ-ω-perfluoro-C8-10-alkyl)thio] derivs., Bu esters (3030471-22-5)
Facilities in designated industry sectors and federal facilities that manufacture, process or otherwise use TRI-listed chemicals above set quantities report TRI data to the EPA annually. As of Jan. 1, 2025, facilities subject to reporting requirements should begin tracking activities involving these PFAS as required by Section 313 of the Emergency Planning and Community Right-to-Know Act. Reporting forms are due by July 1, 2026.
EPA Warns of PFAS in Sewage Used for Fertilizer
On Jan. 14, 2025, the EPA released a draft risk assessment on the potential human health risks associated with PFAS chemicals in biosolids, also known as sewage sludge. According to the EPA, biosolids are used as fertilizer for less than 1% of U.S. fertilized farm acres. The EPA's risk assessment showed that there may be human health risks associated with exposure to PFAS for all three methods of using or disposing of biosolids: land application of biosolids, surface disposal in landfills or incineration. The EPA modeled hypothetical risks to people living on or near sites that had been treated with biosolids and to people consuming the farm's products. The models show a risk of exceeding the EPA's thresholds, sometimes by several order of magnitude, for the people consuming the products. The EPA's analysis does not suggest that the general food supply is impacted by the use of biosolids that contain PFAS.
The draft assessment is open for public comment for 60 days following the announcement in the Federal Register. For additional information regarding PFAS and biosolids, please see the June, October and November 2024 editions of Contaminants Compass.
FDA Determines 35 Food Contact Notifications No Longer Effective
On Jan. 3, 2025, the Food and Drug Administration announced in the Federal Register its determination that 35 food contact notifications (FCNs) related to PFAS chemicals used in food packaging are no longer effective. The FDA determined that the FCNs were abandoned because manufacturers and suppliers ceased production, supply or use of the 35 food contact substances. The FDA established a compliance date of June 30, 2025, so that manufacturers and suppliers have time to exhaust existing stocks.
A food additive is deemed unsafe unless that substance and its use conform with a regulation issued under section 409 of the Federal Food, Drug, and Cosmetic Act or there is an FCN submitted and effective under section 409(h) of the Food, Drug, and Cosmetic Act. An effective FCN is specific to the intended use of the substance prepared by the manufacturer or supplier identified in the FCN. The 35 abandoned FCNs were authorized as food contact substances used for leakproof coatings applied to paper and paperboard packaging.
Committee to Develop Framework for Addressing Impact of PFAS on Agricultural Land
A committee selected by the National Academies of Sciences, Engineering and Medicine will develop a framework to guide the U.S. Department of Agriculture's (USDA's) Farm Production and Conservation (FPAC) programs in responding to PFAS contamination of agricultural land. The committee is expected to define the extent of PFAS challenges in agriculture and the ability of conservation programs and initiatives to address contamination and mitigation on farms. The committee will identify cost-effective and feasible options to aid in PFAS mitigation. Additionally, the committee will attempt to identify actions outside FPAC's scope that could mitigate or prevent PFAS contamination in farming systems, while identifying actions that may not be economically or technically feasible on a larger scale. The long-term goal is for the committee to help the USDA understand effective strategies to address PFAS contamination and protect agricultural land and water resources.
II. What's Happening on the State PFAS Regulatory Front
Request for Comments, Litigation Arise after Jan. 1 Effective Date of Minnesota's PFAS Ban
The Minnesota Pollution Control Agency has issued a new request for comments pertaining to the reporting of PFAS intentionally added to products and the fee to administer the reporting system. The reporting obligation will take effect on Jan. 1, 2026. It requires manufacturers of products sold, offered for sale or distributed in the state that contain intentionally added PFAS to submit information including "(1) a brief description of the product, including a universal product code (UPC), stock keeping unit (SKU), or other numeric code assigned to the product; (2) the purpose for which PFAS are used in the product, including in any product components; (3) the amount of each PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the commissioner; (4) the name and address of the manufacturer and the name, address, and phone number of a contact person for the manufacturer; and (5) any additional information requested by the commissioner as necessary to implement the requirements of this section." Minnesota Statute Chapter 116, Section 116.943, Subdivision 2.
These requirements are part of a broader law called Amara's Law, which takes effect in stages between Jan. 1, 2025, and Jan. 1, 2032, and contains broad PFAS use prohibitions and reporting requirements. One lawsuit was filed on Jan. 6, 2025, in the U.S. District Court for the District of Minnesota by Cookware Sustainability Alliance challenging Amara's Law for its ban on PFAS in nonstick cookware. The lawsuit, Cookware Sustainability Alliance v. Katrina Kessler, Commissioner, Minnesota Pollution Control Agency, seeks to have Amara's Law declared unconstitutional and unenforceable and seeks an order permanently enjoining the enforcement of the statute against nonstick cookware. Cookware Sustainability Alliance argues that the application of PFAS to create nonstick properties in cookware has been validated as safe by the FDA and other regulatory bodies. The complaint also argues that Amara's Law violates the Commerce Clause of the U.S. Constitution by discriminating against out-of-state commerce because it places a substantial burden on companies that make nonstick cookware. There will likely be more challenges to Amara's Law as it takes effect on various industries.
III. What's Happening in PFAS Litigation
Court Rejects Citizen Suit for $850 Million PFAS Remediation Claim
The U.S. District Court for the Northern District of Georgia, on Dec. 10, 2024, denied a request for an injunction requiring the defendants to pay $850 million for remediation of water sources in Georgia contaminated with PFAS. The court found that the plaintiff lacked standing to pursue the remedy he sought.
The lawsuit, Jarrod Johnson v. 3M Company, et al., was filed in 2019 against 59 companies. Johnson claimed that wastewater containing PFAS flowed downstream into drinking water sources used by approximately 100,000 residents in Rome, Georgia, and surrounding areas. He claimed the contamination led to rising water bills for local residents due to the costs associated with a PFAS filtration system. The judge found that Johnson could pursue monetary damages for increased water bills, but he could not prove that the remediation he sought would address a specific injury that he suffered. The court explained that Johnson failed to state a concrete injury because he did not claim any health effects from consuming PFAS-contaminated water, property damage from the contamination or concrete impact to recreational activity. Johnson's ratepayer injury was primarily an economic harm that could be addressed through monetary damages rather than remediation. This decision reinforces the difficult standard plaintiffs face if they try to pursue PFAS remediation litigation because of the importance of demonstrating concrete harm.
Court Dismisses Suit Seeking Rule Prohibiting Production of PFOA During Fluorination
On Dec. 11, 2024, the U.S. District Court for the District of Columbia dismissed a suit filed against the EPA seeking a rule under Section 6 of the Toxic Substances Control Act (TSCA). In Public Employees for Environmental Responsibility, et al. v. Michael Regan, the plaintiffs asked the court to order the EPA to propose a rule prohibiting the production of PFOA during the Inhance fluorination process. The plaintiffs also asked the court for an order requiring the EPA to commence a suit against Inhance to prohibit the formation of PFOA during the fluorination process or otherwise make a proposed rule imposing such a ban immediately effective upon publication in the Federal Register.
After the lawsuit was filed, the EPA published a Federal Register notice seeking public comment regarding the risks of PFAS production during the fluorination of plastic containers. The notice sought information on the number, location and uses of fluorinated containers in the U.S.; alternatives to the fluorination process that generates PFAS; and measures to address risks from PFAS formed during the fluorination of plastic containers. The court held that the EPA had fulfilled any nondiscretionary duties under TSCA when it published the notice seeking public comment. As such, the plaintiff's claim that the EPA did not fulfill its obligation under TSCA was moot. The court also held that the plaintiff's second claim requesting the court to order the EPA to commence a suit against Inhance was outside the scope of the citizen suit provision of TSCA.
Maryland Sues Maker of Gore-Tex Over PFAS Pollution
Maryland sued W.L. Gore & Associates, the maker of Gore-Tex, alleging that the leaders of the company continued using PFAS long after learning about the serious health risks associated with them. The complaint in State of Maryland v. W.L. Gore & Associates, Inc., filed on Dec. 18, 2024, states that Maryland intends to address Gore's release of forever chemicals into the state's environment for more than 50 years.
The complaint focuses on a cluster of 13 Gore facilities in and around Elkton, Maryland. The state alleges that Gore's releases of PFAS have "caused significant PFAS contamination in the State's drinking water, groundwater, surface water, soil, sediment, wildlife, other natural resources, and property held in trust or otherwise owned by the State." The state also alleges that Maryland residents living near Gore's facilities in the Elkton area have been and continue to be exposed to PFAS through contaminated drinking water and ingestion or inhalation and that the exposure may lead to significant negative health effects.
The state brings the suit pursuant to its police powers under Title 7 of the Environment Article and under Title 9 of the Environment Article. The complaint brings common-law claims for public nuisance, trespass and negligence. It also brings a claim under Environment Article Title 7 for the unauthorized discharge of a controlled hazardous substance and the Environment Article Title 9 Subtitle 3 for the unauthorized discharge of pollutants and wastes. The state brings a claim and requests injunctive relief under Environment Article Title 9 Subtitle 4 and requests that the injunction orders Gore to investigate and fully delineate the scope of PFAS contamination for which it is responsible. Finally, the state brings claims and requests declaration of rights and damages under CERCLA (42 U.S.C. §§ 9607(A) and 9613(g)).
The complaint requests the court to enter judgment for the following:
- Find Gore liable for all costs to assess, investigate, mitigate, clean up and remove, remediate, restore, treat, monitor, and otherwise respond to PFAS contamination from Gore's facilities
- Find Gore liable for all damages to compensate residents of the state for the lost use and value of the state's natural resources
- Order Gore to pay for all costs related to the investigation, restoration, treatment and monitoring of PFAS contamination of the state's natural resources
- Order Gore to pay all compensatory damages for economic damages and for the lost value of the state's natural resources
- Award all compensable costs and damages available to the state under CERCLA Section 107(a)
- Declare Gore liable for all past and future response costs pursuant to CERCLA Section 113(g)(2)
- Enter an order against Gore to mitigate the PFAS contamination and to investigate the full extent of all contamination
- Enjoin Gore from causing further PFAS releases
- Enter an order requiring Gore to establish an abatement fund
- Award the state compensatory damages in an amount to be determined by a trier of fact
- Award the state punitive damages in an amount to be determined by a trier of fact
- Award the state costs and fees, including attorneys' fees
IV. What We Are Reading
EPA Report Examines Stakeholder Meeting Facilitation for Issues Related to PFAS and Biosolids
The EPA issued a December 2024 report titled "Stakeholder Meeting Facilitation for Issues Related to PFAS and Biosolids." Biosolids refers to sewage sludge treated to meet the requirements in Title 40 of the Code of Federal Regulations part 503. The report explains that the rise in concern over PFAS in municipal biosolids has created challenges and uncertainties for publicly owned treatment works that rely on the three main biosolid management options: land application, disposal in landfills and incineration.
To target these challenges, the EPA, with input from the National Association of Clean Water Agencies and other stakeholders, convened a series of three workshops that convened 21 participants representing wastewater utilities and solid waste organizations, state regulators and the EPA. The workshops explored 1) the three main management options for biosolids, their benefits and challenges, and their ability to meet capacity and public health needs; 2) management practices and treatment technologies to address PFAS in biosolids; and 3) practices for, and gaps in, communication related to PFAS and biosolids.
The report documents the perspectives and contributions of participants in the workshops and includes discussions on the PFAS and biosolids regulatory landscape, key challenges to the management of biosolids and opportunities in PFAS biosolids management.
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