backChemical Currents provides real-time updates, legal observations, and actionable tips to navigate the constantly evolving legal challenges involving PFAS. In this edition, we discuss the Biden administration’s environmental justice update, recent EPA activity involving Regional Screening and Removal Management Levels, potential federally funded PFAS research, as well as State activity on the PFAS regulatory front.
Look for new editions approximately every two weeks and please feel free to reach out to the King & Spalding team if you have any questions regarding PFAS issues.
Focus on Environmental Justice
Focus on EPA Activity
Focus on Federally Funded Research
Focus on State Regulatory Developments
What We Are Reading Now
Focus on Environmental Justice
Biden Administration Issues Report on Progress in Advancing Environmental Justice
On May 23, 2022 the Biden administration submitted a report to Congress outlining the administration’s stated progress in implementing a number of environmental justice measures:. the Justice40 Initiative (which aims to provide 40 percent of overall benefits in several areas to disadvantaged communities), a new Climate and Economic Justice Screening Tool (CEJST) that debuted in February 2022, as well as several proposed revisions to President Bill Clinton’s 1994 Executive Order 12898 (which ordered each federal agency to make environmental justice part of its mission).
While this report does not specifically mention PFAS or the administration’s aggressive efforts regarding PFAS (which are discussed in detail in last year’s PFAS Roadmap), it does highlight a number of areas in which the administration is taking a more active whole-of-government approach to environmental investigation and enforcement activity that may lead to further scrutiny of sources of PFAS in air, soil, and water.
As an example, the White House Environmental Justice Advisory Council (WHEJAC) recommended that the administration take a more active approach in initiating compliance reviews under Title VI of the Civil Rights Act, which prohibits recipients of EPA financial assistance from taking actions that are intentionally discriminatory or have disparate impact. The WHEJAC urged prioritizing such actions in “states where there are decades of civil rights complaints by Black and other communities of color against permitted pollution in their communities.” In response, the administration has pledged to shift the focus of these Title VI reviews from primarily reactive response to proactively initiating compliance and investigation activities. This could include further review of historic sources of PFAS in air, soil, and water in the targeted states.
As another example, the WHEJAC recommended that federal agencies prioritize investments to modernize drinking infrastructure for disadvantaged communities to help those communities meet Safe Drinking Water Act (SDWA) requirements. EPA indicated that part of the investment in this area will involve funding assistance for increased testing of drinking water contaminants.
As discussed in our February 23, 2022 issue, EPA is in the process of evaluating environmental justice concerns with respect to proposed national drinking water regulations under SDWA.
We will continue to monitor this area as attention on the intersection between PFAS and environmental justice continues to increase.
For more information on the EPA’s new guidance on legal tools to advance environmental justice, read our client alert here .
Focus on EPA Activity
EPA Adds Five PFAS Chemicals to List of Regional Screening and Removal Management Levels
On May 18, 2022 EPA added five PFAS chemicals to its lists of Regional Screening Levels (RSLs) and Regional Management Removal Levels (RMLs). As background, RSLs are site-specific risk-based exposure concentrations for individual chemicals that EPA considers to be protective for humans over a lifetime. RMLs are generic non-site-specific risk-based exposure concentrations for individual chemicals that are typically higher than RSLs (and not necessarily protective for humans over a lifetime). Both RSLs and RMLs are used as benchmarks to determine whether further federal action is needed at a particular site. For example, if a site is examined for the presence of contaminants on this list and the RSLs are below those concentrations (whether in air, water, or soil), generally no further action is required. By contrast, if the contaminants are above the applicable RSLs or RMLs, further investigation may be required to assess whether removal actions might be necessary under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Previously, EPA’s RSLs and RMLs only included one PFAS chemical: PFBS. The May 18 update adds PFOA, PFOS, PFNA, PFHxS, and HFPO-DA to these lists using fairly low levels derived from the Agency for Toxic Substances and Disease Registry’s 2021 toxicological profile (ATSDR) for the first four chemicals and a final EPA toxicity value for HFPO-DA that we discussed in our March 29, 2022 issue. And this may not be the last of EPA’s activity in this area—EPA updates these lists twice each year and has confirmed that it may add other PFAS chemicals to these lists. We’ll be sure to provide an update if, and when, any further actions are taken.
Focus on Federally Funded Research
House Committee on Science, Space, and Technology Approves Bipartisan Bill for Federal PFAS Toxicity Research
For our subscribers who were worried that there would be a shortage of federal research on PFAS—fear not! Because on May 17, 2022, the House Committee on Science, Space, and Technology approved the amended H.R. 7289, which would appropriate $4 million to commission the National Academy of Sciences, Engineering, and Medicine (“National Academies”) to conduct several studies regarding PFAS.
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First, the National Academies would perform a two-phase research assessment on PFAS exposure and toxicity. The first phase of this study would evaluate human exposure estimation by reviewing life-cycle information on the manufacture, use, and disposal of PFAS-containing products and identify sources of potential exposure for the public. The second phase of this study would review animal and human toxicity information on environmentally relevant PFAS chemicals identified in the first phase and then develop a hazard assessment with respect to those identified PFAS.
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Second, the National Academies would conduct a study regarding the research and development needed to understand the extent and implications of environmental contamination by PFAS, how to manage and treat the contamination, and development of safe alternatives to PFAS chemicals.
If H.R. 7289 becomes law, phase one of the first study would be delivered 270 days following the bill’s passage, while the other two studies would follow in 540 days. We’ll be watching closely to see how this program develops and how the National Academies will tackle the fairly ambitious goals set out in the relatively short turnaround period allotted.
Focus on State Activity
Over the last several weeks we have seen a number of state legislatures pass fairly aggressive regulations attempting to ban the use of intentionally added PFAS in certain products, create registries for products with intentionally added PFAS, and introducing new compliance and enforcement activity regarding PFAS.
California
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The California State Assembly recently passed AB-1817, which, if enacted, would prohibit the manufacture, distribution, or sale of textiles that contain intentionally added PFAS at levels exceeding 300 ppb starting in 2025. The bill also requires manufacturers to use the “least toxic alternative” to replace PFAS and include a certificate of compliance.
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The California State Assembly also recently passed AB-2247, which, if enacted, would require all manufacturers, importers, and distributors of products within California containing intentionally added PFAS to register the product on a publicly accessible reporting platform established by Department of Toxic Substances Control and Interstate Chemicals Clearinghouse beginning in 2025. The required disclosure must include the type of product, universal product code, a description of how the PFAS was added, and the names of any PFAS intentionally added.
Colorado
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Colorado’s General Assembly approved HB22-1345 banning several categories of products containing intentionally added PFAS starting in 2024. These categories include, but are not limited to, oil and gas products, cosmetics, and food packaging. The bill provides several additional requirements for cookware manufacturers, requiring any cookware that includes intentionally added PFAS to list the PFAS chemicals on the product label along with a statement directing the consumer to a website that explains the purpose of why those chemicals were added to the product. The bill currently awaits Governor Jared Polis’ signature.
North Carolina
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Proposed North Carolina House bill H.B. 1095 would allow the Department of Environmental Quality to declare manufacturers responsible for contaminating water with PFAS and require those manufacturers to pay for upgrades to water treatment facilities. If the party declared responsible by North Carolina’s Department of Environmental Quality does not comply with the agency’s order, the Secretary may commence an action in the superior court to be tried within 60 days.
What We Are Reading Now
DOD Deputy Assistant Secretary of Defense for Environment and Energy Resilience Richard Kidd recently testified before the House Appropriations Subcommittee on Defense regarding several billion-dollar cost of PFAS cleanup.
U.S. House of Representatives.
Data newly released from a Pentagon study shows high levels of PFAS in drinking water near military bases. DoD Denix.
Study by UNC authors identifies floor stripping and waxing as occupation with potential for PFAS exposure. Atmospheric Environment.
Authors from Green Science Policy Institute and several universities publish article criticizing public health agencies’ communications regarding PFAS. Environmental Health.
EPA issues first in series of TSCA test orders to require companies to conduct and submit PFAS testing pursuant to the agency’s National PFAS Testing Strategy. EPA.Gov.