November 15, 2022

Chemical Currents – November 15, 2022

Chemical Currents provides real-time updates, legal observations, and actionable tips to navigate the constantly evolving legal challenges involving PFAS. In this edition, we discuss a recent lawsuit filed by the State of California, state, national, and international developments regarding PFAS in drinking water, and recent state regulatory activity across a wide range of media from textiles and cosmetics to soil. Look for new editions approximately every two weeks and feel free to reach out to the King & Spalding team if you have any questions regarding PFAS issues.

Focus on Litigation
Focus on Drinking Water
Focus on State Regulation
Focus on the EPA

Focus On Litigation

California AG Files PFAS Suit

Last week the California Attorney General's Office filed a complaint against 18 defendants related to PFAS. "PFAS are as ubiquitous in California as they are harmful," said Attorney General Bonta. He went on: "As a result of a decades-long campaign of deception, PFAS are in our waters, our clothing, our houses, and even our bodies."

The lawsuit alleges that the defendants knew or should have known that PFAS were toxic and harmful to human health and the environment, yet they continued to produce PFAS and/or products containing PFAS. The complaint claims that each "Defendant caused and/or contributed to the devastating statewide harm from PFAS contamination." In particular, the AG alleges that "as a direct result of Defendants' egregious misconduct, PFAS are present throughout California: in drinking water sources; bays, lakes, streams, and rivers; groundwater; in fish, wildlife, and sediments; and even in the bloodstreams of Californians."

Focus On Drinking Water

WHO Releases Draft PFOS and PFOA Guidelines – Sets Values Well Above EPA Advisory Levels

On September 29, the World Health Organization released its draft PFOS and PFOA in Drinking-Water background document. In it, WHO outlines its proposed guidance for PFOS and PFOA in drinking water. WHO found that "the uncertainties in identifying the key endpoint applicable to human health following exposure to PFOS and/or PFOA are too significant to derive a HBGV [health- based guidance value] with confidence."

As a result, WHO proposed provisional guideline values for both PFOA and PFOS individually of 0.1 µg/L, or 100 parts per trillion (ppt). For all PFAS that are currently measurable, it proposed 0.5 µg/L, or 500 ppt. These numbers are orders of magnitude higher than those released by EPA earlier this year, which set interim health advisories for PFOA at 0.004 ppt and PFOS at 0.02 ppt.

New York Proposes Drinking Water Standards

New York recently proposed additional drinking water standards. Falling in between the EPA and WHO numbers, New York's "maximum contaminant level" for perfluorodecanoic acid (PFDA) perfluoroheptanoic acid (PFHpA), perfluorohexane sulfonic acid (PFHxS) and perfluorononanoic Acid (PFNA) under the proposed rule would be set at 10 ppt and 30 ppt combined for PFOS, PFOA, PFDA, PFHpA, PFHxS and PFNA. The New York Department of Health estimates it will immediately see a 1.46 percent increase in violations for each of the four newly regulated PFAS if the standards are finalized at 10 ppt.

Government Accountability Office Issues Environmental Justice Report

In response to a Congressional request, the U.S. Government Accountability Office (GAO) issued a PFAS drinking water reRort based on data collected largely from six states: Illinois, Massachusetts, New Hampshire, New Jersey, Ohio, and Vermont. These states were chosen because they have drinking water PFAS standards or guidance already in place, and, correspondingly, have collected easily accessible drinking water data. Notably, the GAO found that "the demographic characteristics of communities [across these states] with PFAS in their drinking water varied" and did not consistently align with disadvantaged communities. As a result, the GAO ultimately recommended that EPA conduct a nationwide analysis to determine the demographic characteristics of communities with PFAS in their drinking water.

Focus On State Regulation

California Passes Bills Banning PFAS in Cosmetics and Textiles

California's Governor Newsom signed into law two bills prohibiting PFAS in cosmetics (AB 2771) and in textiles (AB 1817), respectively. The bills define PFAS broadly as "a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom."

The cosmetics bill is specifically limited to intentionally-added PFAS: "Beginning January 1, 2025, no person or entity shall manufacture, sell, deliver, hold, or offer for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS)."

The textile bill, however, contains more exceptions and complexity. Among those wrinkles, the bill prohibits not just intentionally added PFAS, but also prohibits PFAS if it is merely present "in a product or product component at or above the following thresholds, as measured in total organic fluorine: (A) Commencing January 1, 2025, 100 parts per million; (B) Commencing January 1, 2027, 50 parts per million."

Governor Newsom vetoed a third bill which would have required registration of products containing intentionally-added PFAS by 2026.

New Jersey Proposes PFAS Soil Remediation Standards

On October 17, New Jersey became one of the first states to set interim soil remediation standards for four PFAS chemicals. The state established interim residential and nonresidential soil remediation standards for the ingestion-dermal exposure pathway. It also established interim soil and soil leachate remediation standards for the migration to ground water exposure pathway.

Interim Soil Remediation Standards For Ingestion-Dermal Exposure Pathway

Interim Soil and Soil Leachate Remediation Standards for the Migration to Ground Water Exposure Pathway

Wisconsin Releases PFAS Monitoring Tool

Not to be outdone by its friendly neighbor Minnesota's online PFAS dashboard (which we reported on back in June), the Wisconsin Department of Natural Resources has now launched its own online tool providing information about PFAS sampling and remediation. The tool even provides "consumption advice," including identifying areas that (in Wisconsin's estimation) warrant particularized advice on eating, you guessed it, deer liver due to elevated PFAS levels. So if you are travelling to the Marinette area of Wisconsin and were planning to sample some local venison liver, be sure to first check Wisconsin's new website.

[Editor's Note: For those wondering, TheRusticElk. com reports that the "flavor profile for liver is pretty iron-like and a bit bitter, this is

especially true of older bucks" and notes that "the flavor in and of itself can be enough to turn some folks off.]

Focus On The EPA

PFAS Roadmap Turns One Year Old

Happy Birthday to the PFAS Roadmap! The Roadmap was published in October 2021. The Environmental Working Group has already issued a "Report Card," on the EPA's PFAS efforts. EWG didn't give out any grades, but rather categorized actions as "pending," "overdue," "partially complete," or "completed." It concluded that 33% of actions due in the time period at issue were completed on time: