Legal practitioners and corporations, particularly those in highly regulated industries like manufacturing, have had their eyes trained keenly on the evolving landscape of the PFAS (Perfluoroalkyl Substances) regulations over the past few years. As we delve into the recent developments, it is becoming progressively clear that the regulatory compliance and litigation risks associated with PFAS are rising at a significant pace.
Just last month, the U.S. Environmental Protection Agency (EPA) took further steps towards tightening their regulatory grip on PFAS. Specifically, EPA finalized a rule necessitating both current and historical manufacturers and importers of PFAS, along with PFAS-containing materials, to report on key factors such as PFAS uses, production volumes, disposal methodologies, potential exposures, and possible hazards.
This move forms part of the government’s broader strategy of reducing environmental pollution and limiting undue exposures that undermine public health. The goal is to unravel the veil of confusion surrounding the various potential risks that PFAS pose to the environment and human health, and over time, establish rules that adequately control their production, use, and disposal.
However, as anticipated, this deeper focus on PFAS is surfacing additional regulatory compliance and litigation risks for businesses operating in this sphere. Firms will have to be extremely scrupulous to sidestep the potential pitfalls that non-compliance or inappropriate handling of these substances might present.
In early 2024, the EPA plans to finalize another proposed rule. This one, seeks to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS), two types of PFAS, as hazardous substances under the Comprehensive Environmental Response. The implications of this rule for those involved in the production, importation, and use of these substances can be far-reaching. Given these significant shifts in regulatory scrutiny, companies need to prepare and strategize their legal and operational responses accordingly.
Adopting proactive strategies such as comprehensive compliance audits and bolstering environmental, health and safety protocols are likely to be pivotal in averting considerable risks associated with non-compliance and potential litigation. Among solutions, corporations could also consider obtaining necessary insurance coverage to alleviate the financial burdens related to potential litigations.
If you wish to delve into this topic further, consider looking into this recent piece titled “PFAS: The Rising Tide of Regulatory Compliance and Litigation Risks,” published by Dechert LLP, here.