As we have reported throughout the year, state and federal governments are increasingly taking action to regulate per- and polyfluoroalkyl substances (PFAS), a family of chemicals that have been used in a number of applications, including a stain- and water-resistant treatment on mattress fabrics. These chemicals have been dubbed “forever chemicals” because they break down very slowly and have been linked to possible health and environmental problems. Regulators, and now the courts, are expected to take further action to regulate PFAS next year and into the future.
For example, it appears that New Hampshire will consider a new PFAS bill when the legislature convenes in 2022. The author of that legislation has indicated that this bill will be titled “Prohibiting the sale of products containing intentionally-added PFAS,” although the bill’s text is not yet available.
At the federal level, the Environmental Protection Agency (EPA) last week announced its “PFAS Strategic Roadmap.” EPA’s objective is to prevent new PFAS contamination from entering air, land, and water and to hold polluters accountable for the contamination they cause. EPA will research the chemicals’ toxicity, how they are introduced into environments and how affected environments can be treated more effectively. By January 1, 2023, EPA plans to finalize regulations proposed earlier this year that would gather data about PFAS manufactured since 2011, including information on the chemicals’ uses, production volumes, disposal, exposures, and hazards. It is unclear whether these data reporting obligations will be limited to PFAS producers, or could also apply to companies that use PFAS to treat fiber or fabrics. We will continue to monitor this issue closely.
Finally, a federal district court in Georgia ruled in September that carpet manufacturers that used PFAS – and not the PFAS producers – may be liable for damage to local water supplies caused by their activity. That case involved a class action lawsuit filed by citizens of Rome, Georgia for the cost of damage to their city’s water supply caused when carpet manufacturers who used PFAS to make their carpets stain resistant sent their effluent to a public utility that released it into a river from which Rome drew its drinking water. In similar cases involving PFAS-contaminated water suppliers, the chemical manufacturers alone have been held liable for these damages. In what may become a landmark decision, however, the federal judge in the Rome case decided that the carpet manufacturers and the utility – and not the PFAS producers themselves – may be liable for some of the damages plaintiffs allege. Experts think that this decision could shift billions of dollars in PFAS-related liabilities downstream from the chemical companies to the manufacturers that used the PFAS chemicals.