Date: January 23, 2024
Category: NASF National, Regulation
- NASF Action Ahead on Major EPA Regulatory Push in 2024 – Finishing industry burdens could exceed over a billion in future costs and liabilities if certain rules are finalized. NASF will be fully engaged with policy makers this election year.
- NASF Government Affairs PFAS Webinars – The association’s Public Policy team on January 15th provided guidance to members from across the nation on the new survey, and more advice and assistance is available.
- Pentagon Proposes Cybersecurity Maturity Model Certification (CMMC) Program Rule: NASF Review Underway – A proposed rule published in the Federal Register on December 26, 2023 establishes a revamped CMMC 2.0 program and defines requirements for the program and for each CMMC level.
- EPA Issues More Stringent Guidance for Soil Cleanup Screening Levels: Potential Impacts Ahead for Certain Surface Finishing Operations – The new screening levels could drive investigation and/or cleanup at hundreds of thousands of new parcels.
Please see more details on these topics below:
NASF Action Ahead on Major EPA Regulatory Push in 2024
With a wide-ranging regulatory agenda set in December 2023 and funds still in the pipeline from Biden initiatives passed by Congress, EPA this year will be rushing to meet deadlines to complete far-reaching regulations and distribute billions of dollars by the end of 2024. The agency is working to implement protections on air, climate, and water by late summer before they may be in danger of reversal next year should Republicans win back full control of Congress and the White House.
EPA Deputy Administrator Janet McCabe noted the agency’s work is “hard, tiring, and rewarding” in a widely-circulated note to EPA staff, and advised that “2024 is also going to be a big year for our regulatory programs – from rules that address climate pollution, to those that protect our precious rivers, lakes coastlines, and wetlands, to those that ensure the air we breathe, the water we drink, and the land we rely upon is safe and healthy. I want each rule writer, regulatory development team member, economist, scientist, biologist, and public health officer to know that Administrator Regan and I have got your back as you make your way through your work this year. We have an important job to do, and I am confident that together we will deliver.”
The finishing industry could be subject to new regulatory burdens and future liability exceeding a billion dollars if EPA finalized some of its most significant rulemakings, including:
- the PFAS Superfund remediation listing regulation,
- the PFAS drinking water standard,
- several chemicals management rules, and
- the wastewater discharge rule for metal finishing and electroplating.
NASF will continue working with EPA officials on these and other policy decisions and providing members with critical updates in the coming year. If you have any questions or would like more information, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.
NASF Government Affairs Webinars: Providing Guidance to Members on EPA’s Survey for the PFAS Wastewater Discharge Rule
Since late December, finishing facilities across the nation began receiving federal EPA’s industry survey that will inform the agency’s surface finishing PFAS wastewater discharge rule. The survey includes an extensive set of information requests regarding facility operations and processes, facility uses of PFAS, PFAS discharge data, water discharge permits, and company financial information. The submission of accurate responses to the survey that are representative of the industry will be critical, as the information from the survey will help to shape the rule to address – in some form – PFAS wastewater discharges from finishing.On January 15, NASF held a webinar for members to provide some guidance on responding to the survey. The program prompted wide participation from association members across the country. The guidance included, among other topics:
- general considerations for the survey,
- a brief summary of the “off ramps” for the survey,
- clarifications on the type of information that EPA is requesting and EPA’s rationale for requesting it,
- the process for protecting some of the responses as confidential business information (CBI), the survey submission deadline, and
- how to request an extension.
In addition, The Policy Group answered questions from participants as part of the webinar and in the days following. The webinar is available on the NASF website in the members-only area.
NASF is planning some additional webinars on the survey and details regarding the upcoming webinars will be provided soon. If you have any questions or would like additional information on the survey, the new wastewater discharge rule for PFAS, or upcoming webinars on the survey, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or cichter@thepolicygroup.com.
Pentagon Proposes Cybersecurity Maturity Model Certification (CMMC) Program Rule: NASF Review Underway
The Cybersecurity Maturity Model Certification (CMMC) Program is the Department of Defense’s (DOD) process of ensuring that contractors are adequately protecting sensitive information under DOD contracts. It requires DOD contractors to certify that they are compliant with cybersecurity requirements for protecting sensitive information. DOD has been making efforts to increase cybersecurity protections, including when it announced in November 2021 “CMMC 2.0” that established a program structure with three key factors: 1) tiered levels of security, 2) assessment requirements, and 3) implementation through contracts.
A proposed rule published in the Federal Register on December 26, 2023 establishes a revamped CMMC 2.0 program and defines requirements for the program and for each CMMC level. Surface finishing operations conducting business with DOD and its contractors have been in the process of implementing CMMC requirements at significant cost for some and will be impacted by this rule.
A copy of the proposed rule is available at the following link: https://www.federalregister.gov/documents/2023/12/26/2023-27280/cybersecurity-maturity-model-certification-cmmc-program.
Tier LevelsThe proposed rule preserves the three tier levels that were introduced in CMMC 2.0.
- CMMC Level 1 – includes 15 requirements listed in the Federal Acquisition Regulation (FAR) and would apply to contractors who store, process, or transmit Federal Contract Information (FCI).
- CMMC Level 2 – includes 110 requirements from the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, Rev. 2 and would apply broadly to contractors who store, process, or transmit Controlled Unclassified information (CUI).
- CMMC Level 3 – includes 24 requirements from NIST SP 800-172 and full implementation of NIST SP 800-171 and would apply to a small group of contractors who store, process, or transmit high-value CUI.
AssessmentsThe proposed rule includes a mixture of self-assessments and third-party assessments depending on the nature of the data.
- CMMC Level 1 assessments will be self-assessments that require contractors to verify their own compliance with the applicable security controls and submit their assessments to DOD annually.
- CMMC Level 2 assessments will be either self-assessments or a certification assessment performed by a third-party assessment organization that must be completed every three years. The proposed rule does not specify how DOD will determine which type of assessment will be required.
- CMMC Level 3 assessments will be certification assessments performed by the Defense Industrial Base Cybersecurity Assessment Center every three years.
Certifications and Plan of Action and Milestones (POA&M)An assessment may result in a Final Certification or a Conditional Certification, depending on whether the contractor has implemented all of the required security controls. The proposed rule allows for some flexibility with the limited use of a Plan of Action and Milestones (POA&M) for certain requirements and for a limited time where some controls are not yet implemented.
For example, POA&Ms are not permitted for Level 1 assessments but can be used for some Level 2 and 3 assessments. If a POA&M exists after an assessment, the contractor will be granted a Conditional Certification and have 180 days to fully implement all of the security controls listed in the POA&M. Failure to implement the security controls in the POA&M will result in penalties or loss of the DOD contract.
Implementation TimelineThe proposed rule includes a four-phase implementation plan.
- Phase One – begins on the effective date of the final CMMC rule and includes a CMMC Level 1 or CMMC Level 2 self-assessment as a condition for contract award.
- Phase Two – begins six months after Phase One and includes CMMC Level 2 certification assessments for contract awards.
- Phase Three – begins one year after Phase Two and introduces CMMC Level 3 certification assessments.
- Phase Four – full implementation of CMMC requirements begins on October 1, 2026.
Comment Deadline and Preparing for the RuleComments on the proposed rule are due on February 26, 2024. NASF will continue to review and evaluate the proposed rule and plans to submit comments. Because the final rule is not expected to look dramatically different from the proposed rule, surface finishing operations subject to these requirements should consider continuing their efforts toward full compliance with the CMMC requirements.
If you have any questions or would like more information regarding the CMMC proposed rule or compliance efforts, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.
EPA Issues More Stringent Guidance for Soil Cleanup Screening Levels: Potential Impacts Ahead for Certain Surface Finishing Operations
EPA issued new guidance on recommended screening levels for cleaning up lead-contaminated soil at federal Superfund cleanup sites and Resource Conservation and Recovery Act (RCRA) corrective action facilities. Specifically, EPA lowered the screening level for lead in soil at residential properties from 400 parts per million (ppm) to 200 ppm.
For remedial actions, if there are other sources of lead exposure, such as lead in air and water, EPA recommends screening level as 100 ppm. EPA notes that the guidance’s new thresholds should apply to both existing and new sites. This action is expected to drive evaluation and cleanup at a “significant number” of residential properties.
The new screening levels could drive investigation and/or cleanup at hundreds of thousands of new parcels. EPA’s Office of Superfund Remediation and Technology Innovation estimate that this could result in approximately 500,000 parcels (an order of magnitude estimate) needing investigation and/or cleanup.
New Screening Level to Drive More Stringent Cleanup Levels at More Sites
In the new guidance the agency emphasizes that screening levels are not cleanup levels, and are used in the early stages of investigating a release to determine if the level of contamination is high enough to warrant further investigation. Nonetheless, the new screening level will drive substantially more stringent cleanup levels at significantly more sites.
EPA requests that its own regional office work collaboratively with state, tribal, and public health agencies to prioritize addressing sites, considering factors such as current levels of exposure and communities with increased risk. Consistent with national policy, EPA will make resource decisions for residential lead sites in a manner that balances resources across all Superfund sites. Because many of the communities at highest risk are in urban areas, it could have an impact on all industry sectors, including surface finishing operations.
NASF will continue to monitor this issue and its potential impacts on the surface finishing industry. If you have any questions or would like more information, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.
NASF 1000
The NASF 1000 program was established to ensure that the surface finishing industry would have resources to effectively address regulatory, legislative and legal actions impacting the industry, NASF members and their workplaces. All funds from the NASF 1000 program are used exclusively to support specific projects and initiatives that fall outside the association’s day-to-day public policy activities. The commitment to this program is one of the most vital contributions made in support of surface finishing and directly shapes the future of the industry.
The sustained commitment from industry leaders has helped the NASF remain strong and credible in informing regulatory decisions across the nation. Specific projects funded through the NASF 1000 make a measurable difference in how the industry navigates emerging challenges, communicates credibly with policy makers, and advocates for a strong science base for rules or standards that affect surface finishing.
Please consider supporting the NASF 1000 program. If you have any questions or would like additional information regarding the NASF 1000 program or the broad array of NASF public policy activities, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
Date: April 1, 2022
Category: Events, NASF National, Regulation
March 2022
With the NASF Washington Forum slated for next week, the Biden Administration today announced plans to expand domestic production of critical minerals. This follows the release of White House plans a few weeks ago to strengthen U.S. supply chains and invest in manufacturing and infrastructure. The EPA issued its 5-year strategic plan this week, which includes a new round of regulation for the metal finishing industry. The agency is also moving to adopt ASTM’s new PFAS standard for site assessments to limit liability for cleanups.
This month’s update provides a summary of these and other key developments in Washington and states that are impacting the surface finishing industry.
- NASF Washington Forum, April 4-6, 2022 – NASF is holding its annual Washington Forum for the first time since 2019, with briefings from national and global experts on legislative, regulatory and strategic management issues impacting the surface finishing industry. Highlighted will be the NASF Economic Impact Report, which profiles the industry’s output and contribution to the U.S. economy.
- President Biden Invokes the Defense Production Act to Boost Critical Minerals Production in U.S. — President Biden this week took steps to increase domestic production of critical minerals needed for advanced technologies like electric vehicles, in an attempt to reduce the nation’s reliance on foreign suppliers. He invoked the Defense Production Act to give the federal government more avenues to provide support for the mining, processing and recycling of critical minerals, such as lithium, nickel, cobalt, graphite and manganese.
- EPA Releases Strategic Plan Highlighting Priorities for 2022-2026 — EPA’s final strategic plan for fiscal years 2022-2026 integrates climate change and environmental justice (EJ) throughout the agency’s decision making and programs, and includes a major new focus on bolstering civil rights enforcement in environmental matters.
- White House Releases Plan to Secure Critical Supply Chains and Revitalize U.S. Manufacturing – The Biden Administration released new reports from key agencies on critical supply chains, potential vulnerabilities, and a plan to revitalize U.S. manufacturing.
- EPA Moves to Adopt ASTM’s New PFAS Standard for Site Assessments to Limit Liability for Cleanups – EPA taking steps to adopt new ASTM standards for conducting site assessments for PFAS contamination that could help limit cleanup liabilities for property owners.
- Court Certifies Massive Class in Landmark PFAS Suit – New litigation seeking industry-funded, independent, nationwide health studies and testing to determine the health effects of numerous PFAS found in the blood of nearly all Americans for a broad class of plaintiffs.
- California Adds PFOA to List of Carcinogens, Triggering More Prop 65 Requirements for PFAS Compounds – California continues to add PFAS to list of carcinogens and reproductive toxins to trigger additional labeling and warning requirements under Prop 65.
A more detailed summary of these issues is provided below.
NASF Washington Forum, April 4-6, 2022
The NASF Washington Forum for the surface finishing industry will be held April 4-6, 2022 at the Ritz Carlton in Pentagon City, VA. The Forum will feature briefings from national and global experts on pertinent policy, regulatory, and strategic management issues impacting the surface finishing industry, as well as the latest outlook on the fall midterm elections.
The schedule includes a Welcome Reception on the evening of April 4 and policy briefings on April 5 covering U.S. competitiveness and trade policy, EPA PFAS wastewater rules underway for finishing, the labor and workplace agenda, and automotive and defense topics.
Keynote speakers include Amy Walter, National Editor of the Cook Political Report and Jake Sherman, Founder of Punchbowl News. A Tuesday April 5 evening reception will follow.
More information on the Washington Forum is available on the NASF website at: https://nasf.org/events/washington-forum/.
President Biden Invokes the Defense Production Act to Boost Critical Minerals Production in U.S.
President Biden took steps this week to increase domestic production of critical minerals needed for advanced technologies like electric vehicles, in an attempt to reduce the nation’s reliance on foreign suppliers.
He invoked the Defense Production Act to give the federal government more avenues to provide support for the mining, processing and recycling of critical minerals, such as lithium, nickel, cobalt, graphite and manganese, primarily based on their use in large capacity batteries for electric cars and clean energy storage systems
“We need to end our long term reliance on China and other countries for inputs that will power the future,” Mr. Biden said during remarks at the White House, where he also announced the release of 1 million barrels of oil per day from the Strategic Petroleum Reserve.
The Defense Production Act, a Cold War-era statute, gives the president access to funding and other enhanced powers to shore up the American industrial base and ensure the private sector has the necessary resources to defend national security and face emergencies.
In a determination issued Thursday, the president said the United States depended on “unreliable foreign sources” for many materials necessary for transitioning to clean energy, and that demand for such materials was projected to increase exponentially.
The President directed the Secretary of Defense to bolster the critical mineral supply by supporting feasibility studies for new projects, encouraging waste reclamation at existing sites, and modernizing or increasing production at domestic mines for lithium, nickel, cobalt, graphite and other so-called critical minerals.
Under the new memorandum, the Defense Department would also conduct a survey of the domestic industrial base for critical minerals and submit that to the president and Congress.
The actions under review would include funding studies and the expansion or modernization of new and existing sites.
EPA Releases Strategic Plan Highlighting Priorities for 2022-2026
The EPA this week issued its final strategic plan for fiscal years 2022-2026, which integrates climate change along with an unprecedented focus on environmental justice (EJ) throughout the agency’s decision making and programs, and includes a major new focus on bolstering civil rights enforcement in environmental matters.
The plan aims to communicate EPA’s vision, priorities, and strategies to accomplish the agency’s mission over the next several years and also serves as the framework for annual planning and budgeting and development of work plans.
The agency’s plan twice mentions the metal finishing industry specifically, including its high-priority rule making focused on metal finishing:
“EPA has determined that effluent limitation guidelines under the CWA should be developed to address PFAS in industrial wastewater discharged by the PFAS manufacturing and the metal finishing industries and is initiating
rulemaking to do so. EPA is committed to lifting up the voices of all communities, particularly those who have suffered disproportionately from the impacts of PFAS; supporting those least able to access technical assistance, filtration, and other control and remediation solutions; and working together to
address this complex environmental challenge. EPA will confront the issue of PFAS by fully leveraging the Agency’s authorities and working closely with federal, Tribal, state, and local partners.”
NASF is working closely with EPA officials in Washington and in the agency’s regional offices — as well as with key states — to exchange information and data and determine appropriate regulatory options.
NASF will host EPA officials at the Washington Forum next week for an outlook and discussion with NASF members at this early stage of rulemaking.
Recent White House Plan to Secure Critical Supply Chains and Revitalize U.S. Manufacturing
On February 24, 2022, the Biden Administration announced its plan to strengthen critical supply chains and invest in U.S. manufacturing and infrastructure.
Seven agencies released six reports outlining key areas of vulnerability and policy recommendations to strengthen U.S. supply chains in critical industrial sectors.
Many of the supply chain vulnerabilities identified in the reports address longstanding challenges in the U.S. industrial base – such as a lack of domestic manufacturing capacity, aging infrastructure, and a skilled workforce deficit – that require long-term solutions.
The reports were in response to Executive Order (E.O.) 14017, “America’s Supply Chains,” signed last year on February 24, 2021, that launched a comprehensive interagency review to identify risks in the supply chains for products deemed critical to U.S. national and economic security, including:
- semiconductor manufacturing and packaging;
- large capacity batteries;
- critical and strategic minerals; and
- pharmaceuticals and active pharmaceutical ingredients.
These reviews have been spearheaded by the Department of Commerce (DOC), the Department of Energy (DOE), the Department of Defense (DOD), and the Department of Health and Human Services (HHS).
The initial 100-day reports that were announced on June 8, 2021 examined a wide range of supply chain risks and identified five main sources of vulnerabilities:
- insufficient U.S. manufacturing capacity;
- misaligned incentives and “short-termism” in private markets;
- strategic industrial policies adopted by competitor and allied nations, including China and the E.U., to advance their domestic competitiveness;
- geographic concentration in global sourcing; and
- limited international coordination on supply chain resilience.
The 100-day reports also made a number of recommendations and announced immediate steps the Administration would take to strengthen U.S. supply chains while continuing to analyze potential long-term solutions to these problems.
The recently issued the one-year reports detailed the interagency working group findings of year-long reviews of the following six critical industrial base sectors:
- Defense;
- Public health and biological preparedness;
- Information and communication technology;
- Energy;
- Transportation; and
- Supply chains for production of agricultural commodities and industrial food products.
There are several common themes and findings across the reports, including:
- Training – any supply chain action must include significant investment in training and education of U.S. workers in critical industrial base sectors;
- Infrastructure and Manufacturing – need to invest in infrastructure and expand domestic manufacturing capacity;
- Standards – the need to work with foreign partners to establish global standards to prevent supply chain vulnerabilities; and
- Resilience – recommend that the U.S. continue to diversify supply chains to improve resilience to global crises.
The reports did not create new programs to address the supply chain vulnerabilities that they identify, but did call on Congress to provide funding for new domestic manufacturing initiatives.
Some of the key findings from the six interagency reports included the following.
Defense – The DOD analysis of the defense industrial base found vulnerabilities in large capacity batteries, specifically lithium batteries, and casting and forging of metals and microelectronics.
To strengthen these areas, DOD recommended that the federal government: invest in training doctoral-level skilled labor; expand industrial security, counterintelligence, and cybersecurity; expand domestic additive manufacturing; and engage more small businesses as key members of the defense supply chain.
Information and Communication Technology — The Department of Homeland Security (DHS) and DOC analysis of the information and communication technology industrial base found that while U.S. technology companies lead the world in innovation and development, most of these products are made in China.
The U.S. lacks the skilled work force to support re-shoring of information and communication technology supply chains, leaving them vulnerable to continued disruptions.
To alleviate these vulnerabilities, the U.S. should invest in domestic manufacturing, work to improve international standards, and increase monitoring of information and communication technology supply chains.
Energy – The DOE analysis of the energy sector found that the U.S. has an opportunity for sustainable growth of its domestic clean energy supply chains, but currently lacks an adequate manufacturing raw materials and domestic production capabilities.
The report also recommended that Congress enact legislation to provide tax incentives for domestic clean energy manufacturing and funding for domestic workforce training and that the federal government leverage foreign direct investment in U.S.-based clean energy technology manufacturing.
Public Health – The HHS analysis of the public health sector found that offshore manufacturing for personal protective equipment (PPE) and other health care supplies are a critical vulnerability and that pressure to reduce prices has resulted in a highly-concentrated manufacturing base that create vulnerabilities in supply chains.
The report recommended that the U.S. invest in domestic manufacturing; stockpile critical items; and improve workforce development.
Transportation — The Department of Transportation (DOT) analysis of the freight and logistics supply chains found that U.S. ports are a key vulnerability and a bottleneck of supply chains and that domestic transportation infrastructure requires significant investment to alleviate supply chain vulnerabilities.
The report recommended that the federal government invest in domestic infrastructure and building the workforce in this sector.
Agriculture and Food Production — The Department of Agriculture (USDA) analysis identified multiple vulnerabilities, including: concentration of industrial food production; labor shortages; climate change; disease to livestock and poultry; transportation bottlenecks; and trade disruptions. USDA recommended taking action to address these challenges through existing and additional funding
These reports take a significant step to identify numerous vulnerabilities for critical supply chains and reaffirmed the importance of U.S. manufacturing.
Although they did not provide detailed solutions to address the vulnerabilities, they did call upon Congress to provide funding to support new domestic manufacturing initiatives.
This increased focus on manufacturing is important for industries in critical supply chains, such as the surface finishing industry. Even though it may take time to implement these manufacturing initiatives, surface finishing companies should begin to position themselves for expanded opportunities in these critical supply chains.
The NASF will continue to work closely with federal officials and industry partners and provide further updates to NASF members. If you have any questions or would like additional information on this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.
EPA Moves to Adopt ASTM’s New PFAS Standard for Site Assessments to Limit Liability for Cleanups
EPA is moving quickly to adopt a recently revised industry standard that added per- and polyfluoroalkyl substances (PFAS) into its methods for assessing potentially contaminated properties.
This clears the way for certain parties to use the standard as they seek Superfund liability waivers at brownfield sites under the “all appropriate inquiry” (AAI) rule.
The move is significant because it could provide liability relief to prospective purchasers and other potentially responsible parties at brownfields or other sites contaminated with PFAS.
EPA is scheduled to publish in the Federal Register a direct final rule as well as a proposed rule to incorporate the updated American Society for Testing and Materials (ASTM) standard — known as ASTM E1527-21 standard practice — into its “Standards and Practices for All Appropriate Inquiries.”
The direct final rule will become effective 60 days after publication without further notice, unless the agency receives adverse comments, at which point the direct final rule would be withdrawn and the proposed rule would be the vehicle EPA uses to address comments and eventually finalize the rule.
The timing on this action is significant because EPA is poised to list PFOS and PFOA as hazardous substances under the Superfund law, a measure that is expected to drive massive new cleanup liability at many sites.
The upcoming rule would, for the first time, allow prospective purchasers an opportunity to limit their CERCLA liability for PFAS contamination by conducting appropriate site assessments.
ASTM approved changes to its site assessment standard in November 2021, suggesting property owners or other users may include PFAS in site assessments of potentially contaminated properties if the substance is regulated by the state.
ASTM specifically approved changes to its Phase I environmental site assessments standard, including terminology revisions, new definitions and a footnote addressing PFAS, among other updates.
In its direct final rule, EPA references parties that may want to make use of the updated ASTM standard in order to secure liability protection. Parties may wish to consider PFOS and PFOA during due diligence activities now — even before any final designation — depending on the site’s prior use, surrounding area, and future intended use.
With increased regulatory attention and litigation over the management and remediation of PFAS, this revised ASTM standard is a welcome tool to address major risks and liabilities linked to PFAS.
NASF will continue to monitor these developments and provide updates to NASF members. If you have any questions or would like additional information on this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
Court Certifies Huge Class in Landmark PFAS Suit, Eyes Possible Expansion
A federal court recently certified all Ohio residents who have small amounts of per- and polyfluoroalkyl substances (PFAS) in their blood as a class eligible to pursue a suit against chemical manufacturers, while leaving the door open for residents of other states to be included.
The suit, Kevin D. Hardwick v. 3M Company, et al., was filed in the U.S. District Court for the Southern District of Ohio, and could drive new PFAS science and possibly future Superfund litigation.
The named plaintiff in the lawsuit, an Ohio firefighter, is seeking industry-funded, independent, nationwide health studies and testing to determine the health effects of numerous PFAS found in the blood of nearly all Americans.
In this litigation the plaintiff claims that manufacturers and distributors of PFAS “knew for decades that these chemicals presented a serious risk of disease and harm, engaged in a systematic effort to conceal and deny the dangers of PFAS, misled regulators and the public, and made billions of dollars in profits while contaminating millions of people without their knowledge.” The industry defendants vigorously deny the allegations.
Class action litigation has been driving a lot of the science on PFAS damages through the creation of science panels. Such suits could also provide a roadmap for future Superfund litigation once EPA lists PFOS and PFOA as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Success on this claim could have repercussions in the regulatory arena and other PFAS litigation, particularly after PFOS and PFOA are designated hazardous substances under CERCLA, thereby providing clear legal authority for people to pursue cleanup actions for PFAS contamination.
Increased litigation can potentially have a significant impact on surface finishing operations that used PFAS. If you would like additional information on this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
California Adds PFOA to List of Carcinogens, Triggering More Prop 65 Requirements for PFAS Compounds
Adding regulatory requirements for PFAS compounds, the California Office of Environmental Health Hazard Assessment (OEHHA) added PFOA to the list of chemicals known to cause cancer.
OEHHA’s determination was based on the National Toxicology Program (NTP) formal identification of PFOA as a chemical that causes cancer.
The listing will create new label requirements under Prop 65 for any product sold in California that contains PFOA, and may also increase enforcement actions targeting those products.
This recent listing for PFOA is the latest in a series of actions in California regarding PFAS compounds:
- November 10, 2017 – PFOS and PFOA listed as substances that cause reproductive harm
- March 11, 2021 – Notice of intent to list PFOA as a carcinogen
- March 26, 2021 — Notice of intent to list PFOS as a carcinogen
- March 26, 2021 – Notice of intent to conduct review of four PFAS for possible reproductive toxicity (PFDA, PFHxS, PFNA, and PFUnDa)
- December 22, 2021 – PFOS listed as a carcinogen (effective December 24, 2022)
- December 31, 2021 – PFNA listed as chemical capable of causing male reproductive harm
- February 25, 2022 – PFOA listed as a carcinogen (effective immediately)
California’s Prop 65 was passed with the intention of providing consumers with information regarding potentially cancer-causing agents in products that would allow consumers to make an informed decision as to whether to purchase the product.
Prop 65 requires “clear and reasonable” warnings to be placed on products that can expose a consumer to a chemical that the State of California determines may be cancer-causing or cause reproductive harm.
Prop 65 penalties can be as high as $2,500 per violation per day. Companies often face the added prospect of third-party lawsuits and paying the other side’s attorney fees, as a result, most Prop 65 matters carry substantial financial risk and are very expensive to litigate.
Companies that were already 1) testing products, 2) conducting due diligence to determine whether any of its products contain any of the PFAS determined to be cancer-causing or cause reproductive harm, and 3) ensuring proper warning labels on applicable PFAS-containing products to comply with Prop 65’s strict regulatory requirements must now factor in the new PFOA carcinogenic determination.
This may require modifications to any necessary warning labels, unless a business is already availing itself of a safe harbor warning that covers both cancer and reproductive harm, or if any exposure would be below safe harbor levels.
As more PFAS compounds are identified as carcinogens or reproductive toxins, companies doing business in California must act now to determine if any products sold in the State of California contain any of the regulated PFAS compounds.
Supply chain analysis is a critical part of the process. For companies with products that contain the PFAS that are the subject of the notices, precise warnings will need to be adhered in the proper way and location (whether on the product packaging, on a website prior to the consumer purchasing the product, etc.) that may not be as simple as it sounds.
NASF will continue to monitor Prop 65 PFAS developments and provide updates to NASF members. If you have any questions or would like additional information, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
NASF 1000
The NASF 1000 program was established to ensure that the surface finishing industry would have resources to effectively address regulatory, legislative and legal actions impacting the industry, NASF members and their workplaces.
All funds from the NASF 1000 program are used exclusively to support specific projects and initiatives that fall outside the association’s day-to-day public policy activities.
The commitment to this program is one of the most vital contributions made in support of surface finishing and directly shapes the future of the industry.
The sustained commitment from industry leaders has helped the NASF remain strong and credible in informing regulatory decisions across the nation.
Specific projects funded through the NASF 1000 make a measurable difference in how the industry navigates emerging challenges, communicates credibly with policy makers, and advocates for a strong science base for rules or standards that affect surface finishing.