PFAS and the Transition to the Biden Administration: A Round-Up of Recent PFAS Activity
Within the first month of the Biden administration, we have seen a high level of attention on per- and polyfluoroalkyl substances (“PFAS”). Increased focus on these “forever chemicals” is setting the stage for a challenging year in potential federal regulatory actions. States are also demonstrating increased engagement, and it is likely that several bills will be presented in state legislatures to address PFAS. Additionally, private parties have been making progress towards resolving PFAS-related liabilities. Below, we provide a brief roundup of pertinent PFAS activity in recent weeks.
- EPA nominee promises “aggressive approach” on PFAS regulation: President Biden’s nominee to lead the EPA, Michael Regan, committed to addressing PFAS as a “top priority” for the administration at his Senate confirmation hearing on February 3, 2021. Regan promised an aggressive approach to addressing PFAS, which would include pursuing discharge limits and water quality values. He also explained the EPA’s commitment to “pursu[ing] all avenues” possible while it developed “rule-making processes to give the proper signals to States, so that States can take the appropriate actions.” Although Regan did not make a definitive statement as to whether the EPA under his leadership would set PFAS drinking water limits, it seems that his comments, alongside the Biden administration’s commitment to PFAS, make this a distinct possibility. On February 9, 2021, the Senate Environment and Public Works Committee approved Regan’s nomination on a 14-6 vote, putting him one step closer to the full-Senate vote he needs to be confirmed.
- EPA removes toxicity assessment on PFBS citing political interference: On February 9, 2021, EPA announced that it was removing a toxicity assessment for the PFAS perfluorobutanesulfonic acid (“PFBS”) from its website. Following concerns pertaining to the bioaccumulation of longer chain PFAS, shorter chain PFBS were developed and utilized in consumer products and applications. This was on the basis that PFBS would be more rapidly eliminated from the human body by comparison to PFOA and PFOS, both longer chain PFAS compounds.
The toxicity assessment replaced a reference dose number with a range of values (between 0.0003 and 0.001 milligrams of PFBS per kilogram of body weight per day). Basing its decision on President Biden’s January 27, 2021 Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, the EPA determined that the conclusions in the PFBS toxicity assessment “were compromised by political interference as well as infringement of authorship and the scientific independence of the authors’ conclusions” in violation of its Scientific Integrity Policy.
Although not a regulation, the toxicity assessment would have played a key role in informing the policy of federal, state, tribal, and local governments pertaining to assessment of the potential risks of PFBS. Critics of the toxicity assessment argued that the range of values presented significant challenges to regulators attempting to assess cleanup. The EPA is now undertaking an internal review of the assessment.
- EPA reissues final regulatory determinations under the Safe Drinking Water Act (SDWA) for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) in drinking water on the Contaminant Candidate List (CCL): On February 22, 2021, the EPA re-released a determination to regulate both PFOS and PFOA under the SDWA. In doing so, the EPA has announced that it will move forward to implement the national primary drinking water regulation development process for these two PFAS. The SDWA requires the EPA to publish the CCL every five years after public notice and comment. The CCL is a list of contaminants which are currently not subject to any proposed or promulgated national primary drinking water regulation but are known or anticipated to occur in public water systems. The SDWA then directs EPA to determine whether to regulate at least five contaminants from the CCL every five years. The EPA first proposed its CCL determination to regulate PFOS and PFOA under the prior administration on March 10, 2020.
In the determination, the EPA also noted that “[w]hile the Agency is not making regulatory determinations for additional PFAS at this time, the Agency remains committed to filling information gaps, including those identified in the PFAS Action Plan, by completing peer reviewed toxicity assessments and collecting nationally representative occurrence data for additional PFAS to support future regulatory determinations . . . . EPA is currently developing scientifically rigorous toxicity assessments for seven PFAS chemicals. The chemicals currently undergoing assessment include PFBS, PFBA, PFHxS, PFHxA, PFNA, PFDA, and HFPO-DA (GenX chemicals), all of which are currently scheduled to be completed by 2023.”
- EPA reissues a proposed rule to address PFAS in the list of unregulated contaminants under the SDWA’s Unregulated Contaminant Monitoring Rule: On February 22, 2021, the EPA re-released the pre-publication notice of a SDWA rule that would require public water systems to collect national occurrence data for 29 PFAS substances and lithium. Under the SDWA, the EPA issues a list once every five years of “not more than 30 unregulated contaminants” to be monitored by public water systems. The EPA then enters the monitoring data into the Agency’s publicly available National Contaminant Occurrence Database. The proposed rule would require “all community and non-transient non community water systems” serving 3,300 people or more (as well as a representative sample of smaller water systems) to collect occurrence data for 29 PFAS substances and to conduct monitoring. As noted in this prior post, the EPA first released a proposed rule seeking to collect this same data under the prior administration on January 14, 2021.
Collectively, the Biden administration’s decision to move forward with both the CCL determinations and this proposed rule while it is reconsidering many regulatory actions of the prior administration signals that the Biden administration plans to continue to build on prior efforts to address PFAS under environmental authorities like the SDWA, and indicates a plan to further regulate PFAS under the SDWA. As the EPA notes in the proposed rule, “PFAS and lithium are not currently subject to national primary drinking water regulations, and EPA is proposing to require collection of the data to inform EPA decisions.”
- Several state legislatures submit bills focused on PFAS: It is not just the federal government that is focused on PFAS; for example, on February 12, 2021, Representatives of the State of Rhode Island introduced an amendment to Title 46 of its General Laws relating to “Waters and Navigation” to include a chapter focused on “PFAS in Drinking Water, Groundwater, and Surface Waters.” Other states are also in the process of introducing bills focused on PFAS, many of which are likely to consider eliminating PFAS from food packaging, textiles, firefighting foam, and other consumer products, as well as policies on management of PFAS (to include disposal and designation as hazardous) and, like Rhode Island’s bill, addressing PFAS in drinking water and groundwater. Regulated entities thus face the challenge of navigating the potential patchwork of laws enacted by several states.
- DuPont, Chemours, and Corteva establish a cost sharing arrangement and an escrow account to handle future PFAS liability: At the end of January 2021, DuPont, Chemours, and Corteva reached a settlement worth approximately $4 billion to end legal disputes concerning liability from their past use of PFAS. In 2015, E.I. Dupont & Co. spun off Chemours, which agreed to take on DuPont’s environmental liabilities. In 2017, a $130 billion merger between DuPont’s parent company and Dow Chemical Co. resulted in DowDuPont Inc. which, in 2019, split into three companies: Dow, Corteva, and DuPont de Nemours. In 2019, Chemours sued DowDuPont for misrepresenting and underestimating the amount of PFAS cleanup costs in environmental remediation claims. Several other claims were brought by the companies, each alleging that the others were responsible for future PFAS liabilities.
DuPont and Corteva together and Chemours separately agreed to pay a 50-50 split of the settlement for PFAS-related expenses incurred over a term not to exceed twenty years or $4 billion of qualified spend and escrow contributions. In connection with this arrangement, the three companies also agreed to establish a $1 billion maximum escrow account to address potential future PFAS liabilities.
- DuPont, Corteva and Chemours resolve 95 cases in Ohio multi-district PFOA litigation: The companies also agreed to settle litigation in an Ohio MDL concerning PFOA for $83 million. The MDL consists of over 3,500 cases alleging personal injury or wrongful death arising from the alleged ingestion of PFOA- or APFO (ammonium perfluorooctanoate)-contaminated drinking water discharged from DuPont’s Washington Works Plant in West Virginia. DuPont and Corteva are contributing $27 million each to the $83 million total with Chemours contributing the remaining $29 million. The settlement resolved approximately 95 pending cases, to include unified matters. One case remains outstanding and is presently pending appeal.
As we noted in our previous post, the Biden administration is focused on addressing PFAS under a range of environmental laws. State legislatures are also likely to continue to examine environmental issues related to PFAS in the upcoming months. Affected companies and industries should expect more changes at both the federal and state level, which they will need to navigate effectively moving forward.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.