OMB Initiates Interagency Review of EPA’s Rule to Designate PFOA and PFOS as Hazardous Substances Under CERCLA and National Primary Drinking Water Regulation Rulemaking for PFAS
On December 6, 2023, the White House Office of Management & Budget (OMB) received the final rule to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Additionally, on December 15, 2023, the OMB received the final National Primary Drinking Water Regulation Rule for six PFAS. The initiation of interagency review of both final rules indicates that the United States Environmental Protection Agency (EPA) is on track to promulgate both rules in early 2024. More information regarding EPA’s Proposed Rule designating PFOS and PFOA as hazardous substances under CERCLA was provided in the September 2022 PFAS newsletter, and more information on the proposed National Primary Drinking Water Regulations was provided in the March 2023 PFAS newsletter.
EPA Releases Second Annual Progress Report Implementing the PFAS Strategic Roadmap
On December 14, 2023, the EPA released its second annual report on PFAS progress, which highlights significant accomplishments achieved under its PFAS Strategic Roadmap. The report highlights multiple interagency actions to reduce PFAS exposure that were taken by EPA in 2023 under the Toxic Substances Control Act, Clean Water Act, the Bipartisan Infrastructure Law and the Comprehensive Environmental Response, Compensation, and Liability Act.
Congress Passes Funding for PFAS Cleanup in NDAA for FY2024
On December 14, 2023, Congress passed the National Defense Authorization Act for Fiscal Year 2024. In addition to funding defense-related activities, the Act outlines requirements for detailing the schedule and budget for the Pentagon’s PFAS cleanups. The bill provides at least $1.1 billion for the environmental remediation of PFAS and other contaminants of concern at former and current Department of Defense (DoD) bases. The Act also allows the DoD to award cash prizes for breakthroughs in the thermal destruction of PFAS. Other PFAS legislation approved within the Act includes expanding funding for the Centers of Disease Control and Prevention to study the human health impacts of PFAS in drinking water.
Ohio Court Dismisses Class Action Case Against PFAS Manufacturers
On November 27, 2023, a class action lawsuit filed against 3M, DuPont, and eight other PFAS manufacturers was dismissed by an Ohio appeals court. The lawsuit was initiated by a former firefighter with occupational exposure to PFAS-containing firefighting foam. The class represented by the lawsuit included all Ohio residents with at least 0.05 parts per trillion (ppt) of PFOA and at least 0.05 ppt of any other PFAS in their blood. The judge dismissed the lawsuit on the basis that the plaintiffs’ representative was unable to plausibly demonstrate that the defendants had manufactured the particular PFAS in his blood, that PFAS had or would result in a specific illness, and therefore lacked standing to bring the case.
Ohio Courts Settle Natural Resource Damage Claims with DuPont for $110 Million
On November 28, 2023, the state of Ohio reached a $110 million settlement with DuPont, Chemours, and Corteva for releases of PFAS from the Parkersburg, West Virginia plant. The settlement will fund the establishment of an environmental trust focused on the restoration of natural resources impacted by PFAS released from the plant, as well as ongoing monitoring, testing, and treatment of PFOA, which was produced at the plant from the 1950s until 2013. The Ohio settlement also triggered a clause in DuPont’s previous settlement with the state of Delaware in 2021. Under that agreement, DuPont will now pay up to $25 million into Delaware’s settlement trust because it settled with another state for PFAS-related natural resources damages within eight years.
Washington State Proposes to Ban PFAS in Clothing and Cleaning Products, Identifies Safer Alternative
In December 2023, the Washington State Department of Ecology (Ecology) released a draft Regulatory Determination report developed as part of Ecology’s mandate under 2019 Safer Products for Washington Act. In the report, Ecology identified priority products that could be made using safer alternatives. The priority products include clothing and apparel, firefighting PPE, cleaning products, automotive washes and waxes, and floor and ski waxes. The report provided draft regulatory determinations for each product type, including PFAS reporting requirements and restrictions on PFAS content. A public comment period is open until January 12, 2024.
Sweden’s Supreme Court Delivers Judgment in High-Profile PFAS Case
On December 5, 2023, Sweden's Supreme Court announced the final judgment in a case that has been litigated for 10 years. The Supreme Court ruled that more than 150 residents in the village of Ronneby, who were exposed to elevated levels of PFAS in drinking water and report elevated levels of PFAS in their blood, suffered personal injury and personal damage. The source of PFAS in the municipal drinking water is firefighting foam released at the Blekinge Air Force Wing. Under the Product Liability Act in Sweden, damages must be paid for personal injury caused by a product, such as drinking water, due to a safety defect. The court’s decision sets a precedent in Sweden for future similar PFAS lawsuits.
