EPA Adds More ‘Forever Chemicals’ to List of Hazardous Substances

WASHINGTON — The Environmental Protection Agency on Wednesday proposed adding nine PFAS, or “forever chemicals,” to its list of hazardous materials.

The “hazardous” designation under the Resource Conservation and Recovery Act means PFAs will get tougher regulatory scrutiny.

They were found in nearly half the nation’s tap water during a study by the U.S. Geological Survey last summer. They have been linked to cancer, infertility, thyroid disorders, immune system problems and other ailments.

The rule change adding the nine PFAS “would facilitate additional corrective action to address releases of these specific PFAS at [Resource Conservation and Recovery Act] hazardous waste treatment, storage and disposal facilities,” the EPA said in a statement.

It also is likely to increase the number of lawsuits against chemical producers, according to legal analysts.

Last year, chemical companies spent more than $11 billion to settle product liability lawsuits. The biggest payout came from 3M Company, which announced in June it would pay about $10 billion to help decontaminate water supplies nationwide.

PFAS are a group of chemicals made with per- and polyfluoroalkyl substances. They are called “forever chemicals” because it can take centuries for them to break down in the environment.

They are found in many common products, such as stain repellent fabrics, firefighting foams, Teflon coatings for cookware, cosmetics and food packaging.

The Centers for Disease Control and Prevention reports finding traces of PFAS in the blood of most people it tested in the past two decades. It also has been found in rainwater worldwide.

The first lawsuits over PFAS were filed against chemical companies as the scientific community started reporting on their hazards in 2009.

“Recently, the range of lawsuits and companies targeted has expanded to include not only manufacturers but also other companies in the chain of commerce — including those that use the chemicals in their finished products,” a recent Baker McKenzie Global Litigation News blog says. “The types of plaintiffs asserting PFAS-related claims are also expanding. State and local governments have begun filing lawsuits, largely claiming contamination of water supplies.”

Any lawsuits would be aided by a bill introduced in the U.S. Senate Thursday by Sen. Kirsten Gillibrand, D-N.Y., called the PFAS Accountability Act. If it wins approval, it would make it easier for victims of contamination to sue manufacturers.

It would establish a legal basis for lawsuits under the Toxic Substances Control Act for people exposed to a significant amount of PFAS.

“And because PFAS-related illnesses can take years to develop, this bill also makes sure that victims can receive long-term medical monitoring as part of their remedies,” Gillibrand said.

Other provisions create incentives for industries to fund PFAS safety research.

The chemical industry is closely watching a pending Michigan case likely to determine some of the limits of liability for PFAS under the most recent EPA standards.

Michigan Attorney General Dana Nessel filed the lawsuit in December 2022 against a paper manufacturing company that previously operated a plant in the state. The company, South Carolina-based Domtar Industries, transported chemical waste to a landfill for 20 years.

Domtar Industries told the Michigan Department of Environmental Quality in 1996 its paper sludge was “inert” and contained no hazardous substances.

The lawsuit filed in state court tells a different story about the 145,000 cubic yards of waste the paper mill dumped in a landfill outside of Port Huron, Michigan.

“On information and belief, Domtar knew at the time that it self-declared its paper sludge as inert that the paper sludge contained hazardous and toxic PFAS chemicals, and that PFAS were toxic contaminants that posed a direct threat to the health and safety of the environment and public health, but failed to disclose this to the DEQ,” the lawsuit says.

Since then, environmental regulators say they have found PFAS in soil, groundwater and surface water around Port Huron.

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