PFAS in consumer products: Developing a proactive and strategic game plan

Read the full post from Jenner & Block.

Per- and polyfluoroalkyl substances (PFAS) in consumer products continue to be in the regulatory and litigation spotlight in 2023. Manufacturers and downstream businesses should be actively preparing to comply with the continually evolving patchwork of federal and state PFAS laws, as well as taking steps to minimize litigation risks. Below, our team of attorneys offers strategic advice for manufacturers and downstream businesses with respect to how regulatory and litigation PFAS developments may apply to them and best practices for minimizing regulatory and litigation risk with respect to same.

EPA announces plans for wastewater regulations and studies, including limits for PFAS, new study for nutrients

On January 19, the U.S. Environmental Protection Agency (EPA) released Effluent Guidelines Program Plan 15 (Plan 15), which lays out how the Agency will work to protect the nation’s waterways by following the science and the Clean Water Act to develop technology-based pollution limits and studies on wastewater discharges from industrial sources.

This Plan focuses on evaluating the extent and nature of both nutrient and per- and polyfluoroalkyl substances (PFAS) discharges. Plan 15 further advances EPA’s commitment in the PFAS Strategic Roadmap to restrict PFAS discharges from industrial sources through a multi-faceted Effluent Limitations Guidelines program.

Plan 15 announces EPA’s determination that revised effluent limitations guidelines and pretreatment standards (ELGs) are warranted for reducing PFAS in leachate discharges from landfills. The Agency made this decision after concluding a detailed study that was discussed in Preliminary Effluent Guidelines Program Plan 15.

The Agency is also announcing several new and expanded studies as part of today’s action, including:

  • an expansion of the ongoing study of PFAS discharges from textile manufacturers;
  • a new study of publicly owned treatment works (POTW) influents to characterize the PFAS concentrations from industrial dischargers to POTWs and inform implementation of pretreatment programs to address them; and
  • a new study on concentrated animal feeding operations (CAFOs) to make an informed, reasoned decision on whether to undertake rulemaking to revise the ELGs for CAFOs.

View ELG Program Plan 15

Background

ELGs are national, technology-based regulations developed to control industrial wastewater discharges to surface waters and into POTWs. ELGs are intended to represent the greatest pollutant reductions through technology that are economically achievable for an industry. EPA prepares ELG Program Plans after public review and comment on a preliminary plan, pursuant to Clean Water Act (CWA) section 304(m). ELG plans provide a description of the Agency’s annual review of ELGs and pretreatment standards, consistent with the CWA. Based on these reviews, EPA develops plans to identify any new or existing industrial categories selected for ELG or pretreatment standards rulemakings and to provide a schedule for such rulemakings. In addition, ELG plans present any new or existing categories of industry selected for further review and analysis.

EPA seeks public comment on National Enforcement and Compliance Initiatives for Fiscal Years 2024-2027

U.S. EPA is soliciting public comment and recommendations on the National Enforcement and Compliance Initiatives (NECIs) for fiscal years 2024-2027 (formerly called National Compliance Initiatives).

EPA proposes to continue four of the six current national initiatives during the FY 2024-2027 cycle and return two of the current national initiatives to the core enforcement and compliance program. In addition, EPA proposes to address environmental justice concerns in all NECIs, and to add two new NECIs on mitigating climate change and addressing PFAS pollution, for the FY 2024-2027 cycle. 

EPA is proposing to continue the following four current NECIs in the FY 2024-2027 cycle:

  1. Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants.
  2. Reducing Risks of Accidental Releases at Industrial and Chemical Facilities.
  3. Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System (NPDES) Program.
  4. Reducing Non-Compliance with Drinking Water Standards at Community Water Systems.

EPA is proposing to return these two current NECIs to the core enforcement and compliance programs:

  1. Reducing Toxic Air Emissions from Hazardous Waste Facilities.
  2. Stopping Aftermarket Defeat Devices for Vehicles and Engines. 

EPA is proposing to add these two new NECIs in the FY 2024-2027 cycle:

  1. Mitigating Climate Change.
  2. Addressing PFAS Contamination.

EPA is also taking comment on whether to add an NECI to address Coal Combustion Residuals (CCR) pollution and/or lead contamination. The Agency is also accepting additional suggestions from the public. 

Comments are due by March 13.

‘All-natural’ Simply Orange Juice has high toxic PFAS levels, lawsuit alleges

Read the full story in The Guardian.

A new class-action lawsuit in the US alleges Coca-Cola and Simply Orange Juice deceived customers with claims of an all-natural, healthy product when the juice has been found to be contaminated with toxic PFAS at levels “hundreds of times” above federal advisory limits for drinking water.

Lakes Michigan and Huron join list of lakes with PFAS-tainted smelt

Read the full story at Bridge Michigan.

More than a decade after state regulators issued their first “do not eat” advisory for PFAS-tainted fish, the list of affected Michigan waterways keeps growing.

Michigan health officials this week urged people to limit meals of rainbow smelt caught in lakes Michigan, Huron, and three inland waterways because the fish are tainted with PFAS. They also warned against eating carp from two Livingston County lakes due to PCB contamination.

The warning in Michigan comes as scientists with the Environmental Working Group warn that fish across the country are tainted with high levels of PFAS.  A study released Tuesday analyzed 500 fish tissue samples collected from 2013 to 2015, finding average PFAS levels so high that eating a single serving was like drinking a month’s worth of PFAS-laced water.

In pursuit of clean packaging with no chemicals of concern

Read the full story in Food Safety Magazine.

The food industry is just beginning to address PFAS derivatives as EPA has done, but it is making slow progress.

EPA releases new PFAS Analytic Tools

U.S EPA has released a new interactive webpage, PFAS Analytic Tools, which provides information about per- and polyfluoroalkyl substances (PFAS) across the country. This information will help the public, researchers, and other stakeholders better understand potential PFAS sources in their communities. The PFAS Analytic Tools bring together multiple sources of information in one spot with mapping, charting, and filtering functions, allowing the public to see where testing has been done and what level of detections were measured.

The tool draws from multiple national databases and reports to consolidate information in one webpage. It includes information on Clean Water Act PFAS discharges from permitted sources, reported spills containing PFAS constituents, facilities historically manufacturing or importing PFAS, federally owned locations where PFAS is being investigated, transfers of PFAS-containing waste, PFAS detection in natural resources such as fish or surface water, and drinking water testing results. The tools cover a broad list of PFAS and represent EPA’s ongoing efforts to provide the public with access to the growing amount of testing information that is available.

Because the regulatory framework for PFAS chemicals is emerging, data users should pay close attention to the caveats found within the site so that the completeness of the data sets is fully understood. Rather than wait for complete national data to be available, EPA is publishing what is currently available while information continues to fill in. Users should be aware that some of the datasets are complete at the national level whereas others are not. 

To improve the availability of the data in the future, EPA has published its fifth Safe Drinking Water Act Unregulated Contaminant Monitoring Rule to expand on the initial drinking water data reporting that was conducted in 2013-2016. Beginning in 2023, this expansion will bring the number of drinking water PFAS samples collected by regulatory agencies into the millions. EPA also significantly expanded the Toxics Release Inventory reporting requirements in recent years to over 175 PFAS substances — and more information should be received in 2023. Additionally, EPA’s proposal to designate PFOA and PFOS as Hazardous Substances would also improve data on spill or release incidents reported to the Emergency Response Notification System. These reporting enhancements will be incorporated into future versions of the interactive webpage. EPA will continue working toward the expansion of data sets in the PFAS Analytic Tools as a way to improve collective knowledge about PFAS occurrence in the environment.

Learn more and access the tools and read the news release.

3M to stop producing PFAS ‘forever chemicals’ by end of 2025

Read the full story at Bloomberg Law.

3M Co., confronting regulatory pressure and lawsuits that threaten billions of dollars in damages, will stop making so-called forever chemicals and aim to discontinue their use in products by the end of 2025.

The announcement marks a historic break with an entire class of chemicals — consisting of thousands of variations on the carbon-fluorine bond — that were first created as part of World War II-era atomic bomb research. The company developed a variety of products with them over more than 70 years, including Scotchgard, and they were used in hundreds of other companies’ products such as firefighting foams and waterproof and stainproof textiles.

Understudied class of PFAS found in healthcare facilities

Read the full story at Chemical & Engineering News.

Researchers have detected an understudied class of per- and polyfluoroalkyl substances (PFAS), known as fluorotelomer ethoxylates (FTEOs), in indoor dust and industrial wastewater samples collected across two provinces in Canada. They found the highest concentrations of FTEOs in dust found in healthcare settings, such as a hospital, a pharmacy, and a medical school, and in effluent produced at a healthcare linen cleaning facility (Environ. Int. 2022, DOI: 10.1016/j.envint.2022.107634).

As the outdoor industry ditches ‘forever chemicals,’ REI lags behind

Read the full story at Grist.

Last week, REI Co-op stores around the country closed for Black Friday. It’s a company tradition dating back to 2015, where the outdoor retailer asks customers to “opt outside” rather than participate in a post-Thanksgiving shopping spree. 

But there’s one thing that REI hasn’t yet opted out of: a class of compounds known as “forever chemicals.” By using these chemicals in its water-resistant outdoor clothing, a coalition of nonprofits and health experts says REI is needlessly polluting the environment and damaging people’s health.