PFAS Manufacturers Settle Lawsuits with US Water Systems
On June 2, 2023, Chemours, DuPont, and Corteva reached an agreement in principle to settle claims related to PFAS in drinking water for a defined class of public water systems (PWS) in the United States. The settlement, once finalized, is subject to approval by the U.S. District Court for the District of South Carolina and includes a total contribution of $1.185 billion paid to a settlement fund. Exclusions from the settlement class include water systems owned by states or the federal government, small systems without PFAS detections, and water systems in the lower Cape Fear River Basin of North Carolina (unless they request inclusion).
On June 22, 2023, 3M entered into a separate resolution to support PFAS remediation for PWS in the U.S. Under this agreement, subject to court approval, 3M will contribute $10.5 to $12.5 billion over 13 years. The agreement aims to provide funding for PFAS treatment technologies, testing, and future detection by eligible PWS who agree to the settlement terms. Additional claims remain unsettled in the aqueous film forming foam (AFFF) multi-district litigation.
Both agreements emphasize that they are not an admission of liability, and that the companies will continue to defend themselves in litigation if the settlements are not approved or certain terms are not fulfilled.
EPA Delays CERCLA Designation for PFOS and PFOA to February 2024; Targets End of 2023 for MCLs
In June 2023, the U.S. Environmental Protection Agency (EPA) released the Agency Rule List for Spring 2023, which notes that the original deadline for the declaration of PFOS and PFOA as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has been extended by six months to February 2024. The EPA expects to finalize Maximum Contaminant Levels (MCLs) for PFOS and PFOA by the end of 2023 and will continue to consider other PFAS as part of this action.
Attorneys General Support PFAS Drinking Water Rule
On May 30, 2023, attorneys general from 16 U.S. states and the District of Columbia submitted comments in support of the EPA’s proposed rule to establish MCLs and MCLGs for six PFAS. The attorneys general stated that the EPA has authority to set drinking water standards for PFAS due to PFAS adverse health effects, occurrence in public water systems, and potential for risk reduction through regulation. The comment letter expresses concerns about PFAS in drinking water, urges regulation to address the widespread issue, and recommends that the EPA consider setting standards for other PFAS. Participating states included Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New York, North Carolina, Oregon, Pennsylvania, and Wisconsin.
State Lawsuits Against Manufacturers Grow
In May and June 2023, several U.S. states filed lawsuits against manufacturers of PFAS, alleging widespread contamination and deception regarding the risks to public health and the environment. In these new lawsuits, Rhode Island, Arizona, Washington, Maryland, and Oregon seek damages related to PFAS mitigation and remediation. Similar to cases filed previously in Kentucky, Maine, Illinois, and California, all but one of these lawsuits focus on the use of aqueous film-forming foam (AFFF). Maryland has filed two lawsuits, with one focused on AFFF and one on non-AFFF PFAS sources. The attorneys general of the respective states cite the high costs of addressing PFAS contamination and emphasized that the companies responsible for manufacturing PFAS products should bear the financial burden of contamination including mitigation and remediation. The legal actions taken by these states reflect a growing nationwide trend of seeking accountability and resources to address the significant challenges posed by PFAS contamination.
Minnesota Estimates Costs for PFAS Cleanup at Over $10 Billion
In May 2023, the Minnesota Pollution Control Agency (MPCA) published a study to conceptually evaluate approaches and order-of-magnitude cost estimates to manage and destroy PFAS present in municipal wastewater, biosolids, landfill leachate, and compost contact water. The study screened over 50 PFAS separation and destruction technologies, selected 13 for consideration based on technical and economic feasibility and byproduct management, and retained 2 to 4 alternatives for costing each waste stream. Nine PFAS were evaluated including PFBA, PFBS, PFHxA, PFOA, PFOS, PFOSA, 6:2 FTS, N-MeFOSSA, and N-EtFOSSA. Treatment targets were assumed to be current analytical reporting limits (5 ng/L for aqueous streams or 5 ng/g for biosolids).
The estimated cost to remove and destroy PFAS from municipal wastewater effluent and biosolids statewide was at least $14 billion, with an estimated additional $105 million to remove and destroy PFAS from landfill leachate and compost contact water. The study reported that because shorter chain PFAS are more difficult to remove, they are up to 70% more expensive to treat. Small wastewater facilities were predicted to face per-pound removal costs that were six times greater than larger facilities due to the differences in scale.
Washington Adopts Final Rule Banning PFAS in Selected Products
On May 31, 2023, the Washington Department of Ecology adopted the Safer Products Restrictions and Reporting rule to reduce the use of toxic chemicals in consumer products and increase product ingredient transparency by creating reporting requirements and restrictions for priority chemicals. PFAS in aftermarket stain- and water-resistance treatments, carpets and rugs, and leather and textile furnishings are included in the list of priority chemicals and products. The adopted rule will become effective on July 1, 2023.
Victoria Australia EPA Releases PFAS Background Study
On June 16, 2023, the Victoria EPA in Australia announced the release of a report (originally drafted October 2022) detailing investigation of background or ambient concentrations of PFAS in the environment. The report indicates detectable concentrations of PFAS (PFOS, PFHxS, and PFOA) in Victoria freshwater, sediment, and riparian soil (e.g., soil samples collected next to freshwater). Sample locations were designated as remote, agricultural, urban area, or mixed land-use locations. Detection frequencies were highest in freshwater with urban ambient concentrations up to 81 ng/L for PFOS, 44 ng/L PFHxS, and 31 ng/L PFOA.
