By Jeffrey Karp and Kevin Fink
In a recent article posted by Manufacturing Today, we discussed the unexpected risks facing manufacturers of products containing Per- and polyfluoroalkyl substances (PFAS). PFAS are a class of more than 3,000 man-made chemicals that are receiving heightened public awareness due to concerns about their potential negative impact on human health and the environment.
In addition to the commencement of litigation and the promulgation of PFAS regulations in a number of states, two bills were introduced in the Senate during the last session of Congress that: (1) sought to “encourage” Federal - State cooperative agreements to address removal and remedial actions; and (2) to require the United States Geological Survey (“USGS”) to perform a nationwide survey of the extent of these ubiquitous contaminants.
On Monday January 14, 2019, a bi-partisan bill - the PFAS Action Act of 2019 (H.R. 535) - was introduced in the House of Representatives by three Michigan congress members: Representatives Debbie Dingell (D-MI), Fred Upton (R-MI) and Dan Kildee (D-MI). That legislation would require the U.S. Environmental Protection Agency (“EPA”) to classify all PFAS substances as “hazardous substances” under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “Superfund”).
If the bill is enacted, within one year EPA must promulgate regulations designating PFAS as CERCLA hazardous substances, and establishing the quantity of PFAS released that would trigger a reporting requirement to the National Response Center. Moreover, once PFAS are CERCLA hazardous substances, EPA may order the clean-up of PFAS contaminated sites or seek to recover response costs from responsible parties. In a 2018 study using unreleased EPA test data, the Environmental Working Group (“EWG”) estimated that as many as 110 million Americans may be ingesting PFAS-containing tap water. Also, EWG and Northeastern University researchers have identified 172 PFAS contaminated sites across 40 states.
 See PFAS Accountability Act of 2018 (S.3381) and PFAS Detection Act of 2018 (S.3382).
Jeffrey Karp is of counsel and Kevin Fink is a law clerk with Boston-based law firm Sullivan & Worcester LLP.