Regulations, guidance, and litigation regarding per and polyfluoroalkyl substances (PFAS) is changing rapidly. In addition to our blogs and videos, we have a PFAS Resources Page to help keep you up-to-date on this dynamic environmental issue. Below are recent updates regarding PFAS.
Litigating PFAS in Firefighter PPE
A September 2020 article in Insurance Journal stated that according to Preadicat, a Los Angeles-based liability risk analytics company, the top emerging litigation risk identified for the year ahead is PFAS.
To date, much of the litigation activity has focused on makers of products that contain PFAS, as well as, the manufacture and use of Aqueous Film Forming Foam (AFFF), but this may be changing.
According to Bloomberg Law, “…plaintiffs’ attorneys and lawmakers are increasingly looking at the gear worn by firefighters as a source of PFAS and subsequent litigation.”
Plaintiff PFAS Cases
One lawyer, Elizabeth Pritzker (Pritzker Levine LLP) “…is representing two dozen firefighters in a California district court case against foam makers and manufacturers of personal protective gear worn by firefighters, including 3M Co., W.L. Gore & Associates, and Johnson Controls Inc.” (Bloomberg). The plaintiffs were diagnosed with cancer; nine of the 24 were diagnosed with prostate cancer.
According to the article in Bloomberg, “A spokesperson for 3M said that 3M Scott Fire & Safety ‘uses limited quantities of certain fluoropolymers in components of firefighter protective equipment.’”
While there is no dispute that PFAS are in the firefighters’ protective gear, the question is whether the presence of the PFAS lead to adverse health affects. There are currently studies underway to help determine this. Bloomberg states The International Association of Fire Fighters is also working on gathering research on the safety risks of PFAS.
Equipment with PFAS Protects Firefighters
Complicating the issue is the reason that PFAS are used in firefighter’s protective gear in the first place; it protects them from hazards of fighting fires. As reported in Bloomberg, Tom Flanagin, a spokesperson for the American Chemistry Council, said “…we do have concerns that restricting PFAS in firefighter turnout gear could put the lives of our first responders in jeopardy.”
“Improper turnout gear ‘can mean the difference between life and death, not just for the firefighter but also for potential fire victims. Despite years of research into potential alternatives, which is ongoing, use of PFAS-based materials remains the only viable option.’”
PFAS-free outer layers are in development and scheduled for sale next year, including a product called PF Zero by manufacturer Safety Components.
NPDES Monitoring for PFAS
The United States Environmental Protection Agency (EPA) recently issued a Memorandum for monitoring PFAS in NPDES programs. While the memorandum applies only to federally issued NPDES Permits and contains only recommendations, not guidance or rules, it provides some insight into how PFAS may be incorporated into future permits.
The recommendations from a Workgroup at the EPA’s Office of Water are the following.
- Include permit requirements for phased-in monitoring and best management practices, as appropriate, taking into consideration when PFAS are expected to be present in point source wastewater discharges.
- Include permit requirements for phased-in monitoring and stormwater pollutant control, as appropriate, taking into consideration when PFAS are expected to be present in stormwater discharges.
- Information sharing on permitting practices and the development of a permitting compendium, an information sharing platform, and continuation of the workgroup.
We will likely see more formalized programs for monitoring PFAS in water by authorized states in the coming months.
See the complete list of NPDES State Program Authorities.
PFOA and PFOS Hazardous Substances
From the Office of Information and Regulatory Affairs is a notice of proposed rulemaking. The proposed rulemaking is to designate Perfluorooctanoic acid (PFOA) and Perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Designating PFOA and PFOS as CERCLA hazardous substances would require reporting of releases of PFOA and PFOS that meet or exceed the reportable quantity assigned to these substances. This designation would also provide an additional mechanism for enforcement on PFAS releases.
You may recall the EPA previously added PFAS reporting under the Toxic Release Inventory or TRI (effective January 1, 2020). This new reporting requirement is part of the National Defense Authorization Act 2020. Reporting forms for these chemicals are due to EPA by July 1, 2021, for calendar year 2020 data. For details see “Addition of Certain PFAS to the TRI by the National Defense Authorization Act.”
Finally, Bloomberg has a helpful document for those who may have PFAS concerns in multiple states: PFAS State Activity Tracker.
If you need assistance in assessing/remediating PFAS or preparing for litigation involving PFAS, contact our senior vice president, Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125 for a free initial consultation.
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