We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
 
EPA Publishes Contaminant Candidate List 5 and Includes Broad PFAS Group for First Time
By: Rob Bilott, John Huldin, and William Sweet 
The EPA recently published the Contaminant Candidate List 5 (List 5). It is a list of contaminants that are not currently subject to proposed or final national primary drinking water regulations but are either known or predicted to be present in public water systems. List 5’s purpose is to identify contaminants that should be prioritized for regulatory decision making and information collection needs under the Safe Drinking Water Act.

The Safe Water Drinking Act requires EPA to publish an updated list every five years, though EPA has not always abided by that timeline — the last list was published in November 2016. In 2009, EPA placed two specific PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), on List 3 for evaluation. In November 2016, EPA issued List 4, which carried over many List 3 contaminants, including PFOA and PFOS, for further evaluation. List 5 includes 66 chemicals, three chemical groups, and 12 microbial contaminants. List 5 includes contaminants commonly found in commerce, pesticides, waterborne pathogens, disinfection byproducts, and biological toxins.

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EPA Issues Interim FAQs on How Environmental Justice Will Affect Permitting 
By: Will Gardner and Tommy Sokolowski

On Aug. 16, 2022, EPA issued its Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs) to provide federal, state, and local governmental agencies with guidance on how to integrate environmental justice and civil rights into environmental permitting. The FAQs come amid a long line of Biden administration actions taken addressing environmental justice,1 highlighting the administration’s emphasis on placing environmental justice at the forefront of federal environmental enforcement. Although the guidance, which is subject to modification, does not create any new legal rights or responsibilities, it builds upon the framework of current civil rights laws by helping environmental permitting agencies to “better identify and address discriminatory or unfair permitting processes and outcomes.” EPA noted the pollution burden that vulnerable communities have historically borne and that federal enforcement action in the civil rights arena has been deficient in environmental protection. Thus, EPA rested its obligation to address environmental justice in permitting on Executive Order 12898, noting that “it is time to use the full extent of [EPA’s] enforcement authority under federal civil rights laws.” With this in mind, the FAQs are crucial for industries to understand — agencies will be enforcing civil rights with a fresh direction not only when reviewing environmental permits for facilities (such as those relating to air, water, and waste), but also through the various other permits facilities may require.

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New California Bill Restricts PFAS Content in Textiles
By: Chase Dressman and Michael Meyer
In what promises to be an ongoing trend of growing regulation nationwide of per- and polyfluoroalkyl substances (PFAS) in consumer and other products, California recently enacted legislation banning certain uses of PFAS in textiles which will have a huge impact on the industry. The new legislation, Assembly Bill (AB) 1817, goes into effect Jan. 1, 2025, and seeks to largely eliminate the use of intentionally-added PFAS chemicals in new textile products manufactured, sold, or distributed in California by 2027. AB 1817 follows a series of other California laws passed in recent years to regulate the use of PFAS in consumer products. As the ongoing scientific study of PFAS continues, similar laws are likely throughout the United States in the coming years.

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EPA Proposes Listing PFOA and PFOS as Hazardous Substances
By: Rob Bilott, John Huldin, and William Sweet 

 The Environmental Protection Agency (EPA) issued a proposed rule to designate two per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 102. 

PFOA and PFOS were historically used in many consumer products including carpets, clothing, fabrics, food packaging, and nonstick cookware. PFOA and PFAS are also prevalent in manufacturing processes including wetting agents/fume suppressants, plating processes, processing aids in textile coating applications, insecticides, certain types of adhesives, cleaning products, and coating products. Environmental sources include direct and indirect industrial, municipal, and agricultural discharges of PFOA and PFOS. They are also used for firefighting at airfields and in industrial operations.

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