Chemical Industry Regulatory Update – January 2020: PFAS Regulation and Sampling Continue to Heat Up

Thompson Hine LLP
Joel D. Eagle

January 9, 2020

An update to this publication was released on January 21, 2020.

It is a question we’ve heard so much recently: Are per- and polyfluoroalkyl substances (PFAS) really everywhere? The answer is certainly “yes” if measured by the flurry of recent federal and state “action plans” and proposed statutory and regulatory changes (including the proposed federal “PFAS Action Act of 2019” discussed below); Hollywood movies (“Dark Waters”); streaming documentaries (Netflix’s “The Devil We Know”); and a nearly constant flood of media coverage about PFAS. If the metric is the confirmed presence of PFAS in the environment through sampling, then the jury is still out. But extensive ongoing and planned nationwide groundwater and drinking water supply system sampling and investigations at known or suspected contaminated sites, will help answer whether PFAS are really everywhere.

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Trump Track: Revision of NEPA Regulations to Speed Environmental Review

Davis Wright Tremaine LLP
Gerald George

January 10, 2020

On January 8, 2020, the Trump Administration proposed streamlining the National Environmental Policy Act (NEPA) regulations for evaluation of the environmental impacts of major projects, in part by removing the existing requirement to consider “indirect,” “direct,” and “cumulative effects.” Instead, the proposal narrows the definition of “effects” to be evaluated to include only those that are “reasonably foreseeable” and having “a reasonably close causal relationship to the proposed action or alternatives.”

After publication in the Federal Register, the proposed regulations will be open for public comment for sixty days. Given the expected scale of response, publication of the final regulations is unlikely before fall 2020, and the new regulations will almost inevitably face court challenges arguing that the narrowing is inconsistent with the statute itself.

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Insurance Coverage May Pay for PFAS Related Environmental Investigations

Loeb & Loeb LL
Albert M. Cohen

January 17. 2020

Over the past few years, PFAS (per- and polyfluoroalkyl substances) have come under increased scrutiny by a variety of regulatory agencies.

In March 2019, the California State Water Board (Water Board) initiated a statewide effort to assess the scope of contamination by PFAS in water systems and groundwater. It issued nearly 14,000 investigatory orders to various entities, including public water systems within two miles of airports and one mile of landfills. The Water Board also issued orders to hundreds of chrome-plating operations throughout the state, requiring them to conduct investigations to determine the presence of PFAS.

California also enacted AB 756, which authorizes the State Water Pollution Control Board to order public water systems to monitor for PFAS and to take specified actions in the event certain identified levels of PFAS are detected. As a result, additional water systems and purveyors are likely to receive orders requiring them to investigate for PFAS.

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Without “Hazardous Substance” Designation, Pennsylvania PFAS Case Against Navy Seeking Cleanup Fails

Sidley Austin, LLP
Samuel B. Boxerman and Aaron L. Flyer

January 21, 2020

The original Blog can be accessed here:

As discussed last week, the U.S. House of Representatives recently passed a bill designating specific per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA). But unless and until the designation becomes federal law, the viability of PFAS-related cleanup claims under state law depend on whether the individual state has designated PFOA and PFOS as hazardous. Last week, in Giovanni, et al. v. Department of the Navy, the U.S. District Court for the Eastern District of Pennsylvania dismissed a case bringing a claim under Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) for alleged PFOA and PFOS contamination from facilities owned and operated by the U.S. Navy. The court found that the plaintiffs could not maintain their claim because these substances have not been designated as hazardous by either the federal or state government, as required by HSCA.

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