There have been some (more) developments with respect to per- and polyfluoroalkyl substances (PFAS).  Some of the recent developments are potentially very significant.

Massive PFAS Class Action Certified

According to an article in Gardner Business Media, “A federal court recently certified all Ohio residents who have small amounts of per- and polyfluoroalkyl substances (PFAS) in their blood as a class eligible to pursue a suit against chemical manufacturers, while leaving the door open for residents of other states to be included.  The suit, Kevin D. Hardwick v. 3M Company, et al., was filed in the U.S. District Court for the Southern District of Ohio, and could drive new PFAS science and possibly future Superfund litigation.”

According to the lawsuit, the defendants include: 3M Company, Daikin, Daikin America, Inc., E. I. du Pont de Nemours and Company, The Chemours Company, Archroma Management L.L.C. (“Archroma”), Arkema, Inc., Arkema France, S.A., Solvay Specialty Polymers, USA, LLC, and AGC Chemicals Americas, Inc.

The class action PFAS lawsuit in Ohio is potentially massive (Photo by Sebastian Pichler on Unsplash).

This is a potentially very significant class action lawsuit because PFAS are pervasive in the environment as well as in humans.

According to the Vermont Department of Health, “Studies show that human exposure to PFOA is widespread, and that most people in the U.S. have PFOA in their blood.  It is unlikely that anyone, even if they did not drink contaminated water, will have a level of “zero” PFOA in their blood.  If your drinking water is contaminated with PFOA, and it has been your main source of drinking water, you will have more PFOA in your blood than most people in the U.S.” (emphasis added).

As a point of reference, Ohio has nearly 12 million residents.

Assessing PFAS in Phase I ESAs and CERCLA Liability

While PFAS are not a recognized environmental condition under the new ASTM Standard for Phase I Environmental Site Assessments (ASTM 1527-21), PFAS are a non-scope consideration.  Further, the EPA is closer to adopting the new standard as part of their All Appropriate Inquiry Rule (see Standards and Practices for All Appropriate Inquiry).

If EPA adopts the new ASTM standard making PFAS a non-scope consideration, environmental due diligence may take on far greater significance.  Not just because of the consideration of PFAS, but because the EPA appears to be moving forward with designating two PFAS chemicals as hazardous substances (PFOA and PFOS) under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA aka Superfund).  This would mean potential Superfund liability for sites that have PFAS and the EPA would have the authority to order responsible parties to remediate the site.  See our February 1, 2022 blog for more details on CERCLA liability.

Further, under this scenario, if looking for PFAS is not part of your due diligence and they are found later, you may be liable for the contamination.

PFAS in Certain Containers

In a letter dated March 16, 2022, The United States Environmental Protection Agency (EPA) opened with the following, “The U.S. Environmental Protection Agency (EPA) is directing this information to manufacturers (including importers), processors, distributors, users, and those that dispose of fluorinated high-density polyethylene (HDPE) containers and similar plastics (i.e., fluorinated polyolefins).”

At issue is the potential for per- and polyfluoroalkyl (PFAS) to leach from the containers into the pesticides stored in the fluorinated HDPE containers.  We discussed this in more detail in our October 13, 2021 blog.

This is the second letter (of which we are aware) from the federal government directed specifically to this group.  On August 5, 2021, the US Food and Drug Administration addressed the same group reminding them, “…that only certain fluorinated polyethylene containers are authorized for food contact use.”

According to the law firm, Holland and Knight, “…the purpose of EPA’s letter is to raise awareness to industry of this issue in order to help prevent unintended PFAS formation and contamination and to outline the requirements under the Toxic Substances Control Act (TSCA) related to PFAS and fluorinated polyolefins, including tracking of PFAS under TSCA Section 5(a) Significant New Use Rules.  EPA considers the manufacturing of certain PFAS from the fluorination of polyolefins to be a significant new use under TSCA.”

PFAS Technical Support

Do you need technical support for an issue involving PFAS?  We can help.

Dragun has provided technical support with respect to PFAS for a variety of industries, from manufacturing to agriculture.  We have also provided litigation support for lawyers engaged in the growing list of PFAS lawsuits.

We have ongoing projects involving delineation and remediation of PFAS in groundwater.  Our PFAS specialists have written for environmental technical publications, trade publications, presented to a wide variety of groups from the local chapter of the American Chemical Council to the World Dairy Expo.

For more information, contact Jeffrey Bolin, M.S., CHMM at 248-932-0228, Ext. 125.

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