Federal PFAS Bills Passed and Introduced; National PFAS Lawsuit Approaches First Court Date
Proposed Superfund Ruling
The EPA’s proposed designation of PFOA and PFOS as “hazardous substances” under CERCLA continues to receive pushback from multiple industry groups. The EPA recently rejected a request for a regulatory impact analysis (RIA) on the proposed rule, which would have required the EPA to provide a direct and indirect cost estimate of the rule.
Some industrial groups, including several water and solid waste agencies, have requested a 60- or 90-day extension on the comment period for the Superfund proposed ruling due to the novelty of the rule and controversial nature. The current deadline for comments on the proposed ruling is November 7.
There has also been some movement of federal legislation to address PFAS and AFFF. The Preventing PFAS Runoff at Airports Act, a bill providing funding to airports to purchase equipment to test and train AFFF without discharging PFAS, was passed unanimously by the Senate on September 9 and passed by the House on September 29. Additionally, Senators Gary Peters (D-MI) and Susan Collins (R-ME) recently introduced the PFAS Intergovernmental Coordination Act, a bipartisan bill that would create an intergovernmental working group within the White House Office of Budget and Management. This working group would aim to improve coordination and communication on PFAS contamination efforts between federal agencies, and state, local, and Tribal governments.
Multi-District Litigation on PFAS Contamination
Some of the most aggressive legal action regarding PFAS contamination continues to be directed at PFAS manufacturers and the DOD. One major tool for addressing PFAS contamination has been a multi-district litigation (MDL) comprised of over 2500 lawsuits filed by utilities, states, private property owners, firefighters, and others against PFAS producers, the DOD, and AFFF users. Several bellwether cases will go to trial in 2023 to assess the strengths of the plaintiffs’ arguments; the outcome will be used by the plaintiffs to seek damages in other similar cases in the MDL.
Earlier this month, the first bellwether case was selected: City of Stuart, Florida v. The 3M Company et al. The city is seeking damages from AFFF producers for the cost of environmental PFAS remediation and drinking water treatment. The judge recently denied a motion for summary judgment filed by 3M and other AFFF producers, who were seeking to use the government contractor defense to claim granted contractor immunity.