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Welcome to the “EMERGING CONTAMINANTS/EMERGING SOLUTIONS” blog. We understand that businesses need up-to-date information regarding their regulatory obligations and litigation risk. Our goal here is to provide our readers with some of that information as it relates to “emerging” contaminants, meaning those that have escaped regulation to date, but are now targets of the federal, state and local regulators, as well as “emerging” solutions, which include novel ways to address contamination and environmental/toxic tort litigation, such as the use of DNA evidence. We hope that manufacturers, retailers, and other entities in the product distribution chain, as well as owners and operators of contaminated property, will find this blog useful.
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Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluoroalkyl substances (“PFAS”) in their products. This area is rapidly developing as states create new laws, and the penalties and litigation risk for non-compliance can be significant. Below is an overview of enacted and proposed state laws and regulations as of August 10, 2021, to assist you in investigating whether your products may be impacted. While this article focuses on state laws and regulations, we note that the House of Representatives recently passed the PFAS Action Act of 2021, which among other things, includes provisions regarding labeling requirements for certain consumer products (see section 10 of the Act for additional information.) While the Senate still needs to approve this bill, it demonstrates that federal attention is now being directed to PFAS consumer products issues, and that federal action in this area is reasonably likely. PFAS is a family of chemicals comprised of over 5,000 compounds. According to the Agency for Toxic Substances and Disease Registry (“ATSDR”), PFAS have been reported in a variety of consumer products, including the following:
The Environmental Protection Agency (“EPA”) has announced it is taking three actions with respect to per- and polyfluoroalkyl substances (“PFAS”) under the Toxic Substances Control Act (“TSCA”): (1) proposing a rule that is designed to enact reporting requirements for PFAS products that are manufactured or imported in the United States; (2) eliminating guidance that EPA asserts weakened the Significant New Use Rule (“SNUR”) regarding long-chain PFAS; and (3) publishing a final rule that incorporates three additional PFAS substances into the Toxics Release Inventory (“TRI”).
In the absence of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, many states have embarked on the process of regulating PFAS compounds in drinking water. The result is a patchwork of regulations and standards of varying stringency which presents significant operational and compliance challenges to impacted industries. This client alert surveys the maximum contaminant levels (“MCLs”), as well as guidance and notification levels, for PFAS compounds – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”) – in drinking water that have been enacted or proposed at the state level.
Governor Pritzker has announced that on Friday, May 14, 2021, the state of Illinois will enter the “Bridge Phase” of the Restore Illinois Plan, which will increase occupancy limits for many industries. In addition, Illinoisans who can provide proof of full vaccination – defined as 14 days after receiving a final vaccine dose – or a negative COVID-19 test 1-3 days prior to an event do not count against a business’ capacity limits.
On May 13th the Centers for Disease Control and Prevention (“CDC”) announced that “[f]ully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
Texas’ Governor marked the state’s Independence Day on March 2, 2021, by issuing an Executive Order that eliminates the statewide face covering mandate, and allows all businesses in Texas to operate at full capacity beginning on March 10, 2021. Governor Abbott said that the decisions were based on the vaccine rollout and falling infection rates.