Following EPAs designation of two PFAS or so-called, "forever chemicals" as "hazardous substances" under CERCLA, Lathrop GPM Partner Rick Kubler spoke with Law360 about the immediate effects of the ruling and other important takeaways to be considered. Rick commented on EPA's enforcement discretion policy and how there is "no guarantee anyone will be immune from liability since CERCLA allows parties to sue each other for costs." He also talked about reopener provisions coming into play for parties who have already entered into consent agreements with EPA. In the article, Rick was ...

On April 19, 2024, EPA issued its long-awaited Final Rule officially listing two key per- and polyfluoroalkyl substances (PFAS), or so-called “forever chemicals,” as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund). The Final Rule designates the two most studied PFAS – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – as hazardous substances. The effects of the designation will be far-reaching and will extend beyond the broad authority that ...

On April 12, 2024, two days after EPA issued a final rule setting standards for certain per- and polyfluoroalkyl substances (PFAS) in public drinking water, the White House Office of Management and Budget (OMB) concluded its review of EPA’s final rule designating certain PFAS, or so-called “forever chemicals,” as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The final rule is expected to list the two most studied types of PFAS – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic ...

On April 10, in a move that is almost certain to result in legal challenges from states, utilities, and other entities charged with its implementation, EPA released its much-anticipated Final Rule limiting concentrations of certain per- and polyfluoroalkyl substances (PFAS), or so-called “forever chemicals,” in public drinking water. The Final Rule, which EPA issued pursuant to the Safe Drinking Water Act (SDWA), represents the first time the federal government has set enforceable standards for any PFAS in drinking water.

The Final Rule sets a legally enforceable maximum ...

On March 27, 2024, the White House Office of Management and Budget (OMB) concluded its review of EPA’s final rule establishing a national drinking water regulation to limit concentrations of certain per- and polyfluoroalkyl substances (PFAS), or “forever chemicals,” in drinking water. When issued, this rule will be the first time the federal government has set enforceable standards for any PFAS in drinking water.

OMB reviews final rules before they are published to the public. The conclusion of OMB’s review marks a key milestone in the rulemaking process, which indicates ...

Lathrop GPM attorney Susan McMichael was published by Wolters Kluwer in the article titled "Strategic Perspectives - EPA issues proposed RCRA rules to address corrective action of PFAS contamination."

In February, EPA proposed two new rules under the Resource Conservation and Recovery Act (RCRA) that addresses corrective action processes and clean-up of nine forever chemicals - or PFAS - and other emerging contaminants at certain RCRA treatment, storage, and disposal (TSDF) facilities. The proposed rules are part of EPA’s PFAS Strategic Roadmap that include multiple ...

In August 2023, EPA released a best management fact sheet called Pollution Prevention Strategies for Industrial PFAS Discharges which provides information to address NPDES discharges containing PFAS under the Clean Water Act. The fact sheet aims to help permit writers and pretreatment coordinators by providing best management practices and examples. Under EPA’s new best management practices, EPA encourages permit writers and pretreatment coordinators to include PFAS monitoring limits when PFAS are present or suspected in discharges. The best management practices ...

In an Agricultural Business Council of Kansas City article titled "Digging Deeper - PFAS in Agriculture: What Agri-Business Sector Needs to Know about the Latest Emerging Contaminants," Lathrop GPM attorneys Ally Cunningham, Jessie Rosell, Matt Walker, and Shanna McCormack discuss the EPA's and USDA's proposed classifications and guidelines for PFAS. These changes can impact a variety of agricultural operations, from the management and application of biosolids and pesticides to federal aid payments received by dairy farmers for PFAS contamination, and updated drinking ...

On August 12, 2022, the Office of Management and Budget (OMB) completed its review of the EPA’s proposed rule to list two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In doing so, the OMB changed its designation of the proposed rule to “economically significant,” which will now require the EPA to conduct a regulatory impact analysis (RIA) – including consideration of the rule’s potential costs and benefits – before the rule takes effect.

The ...

On May 18, 2022, the United States Environmental Protection Agency (“EPA”) announced that it has added five per- and polyfluoroalkyl (PFAS) compounds to its Regional Removal Management Levels (RMLs) and Regional Screening Levels (RSLs), a set of non-enforceable standards used to evaluate whether further action at a site is necessary. The RSLs and RMLs now include a total of six PFAS chemicals. The additions come as a part of EPA’s PFAS Roadmap launched in 2020. The PFAS Roadmap, developed by the EPA Council on PFAS, focuses around three central directives: (1) Research; (2 ...

EPA’s recent rulemaking to promulgate the new ASTM E1527-21 standard received substantive adverse public comments that will likely require EPA to go through a full notice and comment rulemaking instead. Because EPA received adverse comments, it withdrew the proposed direct-to-final rule before the effective date, and will likely have to go through conventional rulemaking to promulgate the new ASTM E1527-21 standard.

Phase 1 Environmental Site Assessments (ESAs) are an integral part of environmental due diligence for real estate transactions because sellers, lenders, and ...

A multi-year investigation into Michigan’s wastewater treatment plants led to a recent discovery—PFAS chemicals made their way into Michigan’s beef supply. While PFAS contaminations have occurred in isolated beef populations in states like New Mexico, this was the first occurrence in Michigan.

What’s the concern? Accumulation in humans.

PFAS are a class of man-made compounds that are used to create fluoropolymer coatings which make products resistant to heat, oil, stains, grease, and water. Their pervasiveness results in countless sources of PFAS contamination ...

Last month, the EPA issued the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) to establish nationwide monitoring for 29 per- and polyfluoroalkyl substances (PFAS) and lithium in drinking water. The Safe Drinking Water Act mandates the EPA to monitor for unregulated contaminants in drinking water every 5 years. Under the UCMR 5, public water systems will collect data on 29 PFAS over a 12-month period from 2023 through 2025 with a report of final results in 2026. The UCMR 5 testing requirement will apply to public water systems serving over 10,000 people; all systems serving ...

On November 16, EPA asked its Science Advisory Board (SAB) to review draft scientific documents re-evaluating EPA’s 2016 analysis of potential health effects of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The review could lead to EPA lowering its existing drinking water health advisory levels and inform development of National Primary Drinking Water Regulations for the two compounds.

EPA sent four draft documents with recent scientific data and analyses to its SAB that indicate adverse health effects may occur at lower levels of exposure to PFOA ...

Last month, the Environmental Protection Agency (EPA) released a proposed rule that would require more data from manufacturers on per- and polyfluoroalkyl substances (PFAS) made since 2011. In the proposed rule, which can be read here, EPA announced their intention to gather certain information going back to January 1, 2011 in accordance with revisions to the Toxic Substances Control Act (TSCA) mandated by the FY 2020 National Defense Authorization Act (NDAA). This one-time reporting obligation would apply to both chemical manufacturers and processors, as well as ...

On April 27, 2021, new EPA Administrator Michael Regan issued a memorandum calling for the creation of a council composed of senior EPA officials dedicated to addressing nationwide impacts from Per- and Polyfluoroalkyl Substances (PFAS). In the memo, which can be read here, Administrator Regan directs the newly formed EPA Council on PFAS (“ECP”) to:

• Develop “PFAS 2021-2025 — Safeguarding America's Waters, Air and Land,” a multi-year strategy to deliver critical public health protections to the American public based on EPA’s review of all ongoing actions and ...

Members of Congress are renewing legislative efforts to impose new limitations on per- and polyfluoroalkyl substances (“PFAS”). Announced by lawmakers from Michigan on April 13, the PFAS Action Act of 2021 would impose several significant restrictions upon the use, disposal, and clean-up of PFAS. Among other items, the Act would:

1. Create nationwide drinking water standards for two of the most widely studied types of PFAS, PFOA and PFOS
2. Require EPA to designate PFOA and PFOS as “hazardous substances” under CERCLA within one year, and determine whether to list all other PFAS ...

On March 17, 2021, the United States Environmental Protection Agency (EPA) published an advance notice of proposed rulemaking (ANPRM) seeking data concerning discharges of per- and polyfluoroalkyl substances (PFAS) from manufacturers regulated in the Organic Chemicals, Plastics and Synthetic Fibers (OCPSF) point source category to inform potential future revisions to the category’s wastewater discharge requirements, fulfilling a pledge made in in the Final Effluent Guidelines Program Plan 14 issued earlier this year.

EPA’s ANPRM suggests EPA is considering ...

February 22 brought another significant development in the world of PFAS, as EPA finalized its decision to regulate levels of PFOS and PFOA in drinking water under the Safe Drinking Water Act (SDWA). To date, EPA has only issued non-enforceable health advisory guidelines, but this new determination means EPA will initiate the scientific review process to propose Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS within two years. For more details, read our legal alert here.