Taking Action on PFAS

Issues related to per- and polyfluoroalkyl substances (PFAS) have been top-of-mind for the environmental industry since the early 2000s, when the U.S. Environmental Protection Agency (EPA) raised concerns about PFAS-related health effects. Over the past two decades, such substances have drawn increased attention, prompting state and federal regulators to grapple with the challenges of how to regulate this ubiquitous class of compounds.

According to the Interstate Technology & Regulatory Council, 12 states have adopted drinking water, surface water or groundwater screening level values equivalent to 70 parts per trillion as listed in the 2016 EPA drinking water health advisories for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). While the EPA has not yet established a maximum contaminant level (MCL) for PFOA and PFOS, states are already aggressively pressing the EPA to expand its approach to PFAS and establish MCLs for other PFAS compounds. The EPA already has used its Safe Drinking Water Act enforcement authority to require actions on known plumes at military sites.

In the EPA’s PFAS Action Plan, the agency committed to listing PFAS as hazardous substances — a game-changing move that will require PFAS management in accordance with existing remediation programs and enable enforcement of regulations, which may require the investigation and remediation of PFAS contamination. The agency also committed to proposing an MCL for PFOA and PFOS in 2019 and collecting information to determine if regulation is needed for a broader class of PFAS.

Federal regulations to address PFAS are likely just around the corner, catalyzed by a proliferation of PFAS class action lawsuits and state actions to set regulatory limits, as well as an increased focus on PFAS and an uptick in news coverage. Potentially responsible parties seeking to manage risks related to PFAS can improve their position by taking these proactive steps:

Engage Legal Counsel

Legal counsel can help owners identify, mitigate and manage PFAS liabilities. Attorneys can also address and advise on risks, if any, that preemptive actions may pose.

Having a skilled environmental attorney on your team is particularly important if you are in a jurisdiction with strict PFAS use limitations but your operation requires the use of PFAS, as in the case of fire safety regulations that require PFAS-based aqueous film forming foams (AFFF). There would be a legal dilemma if a federal regulator required you to use PFAS-based AFFF in a state where PFAS use is restricted or banned.

Partner With an Experienced Firm

Uncertainty can challenge your operations, and PFAS can create a wide range of unsettling situations. You need a partner who understands both environmental cleanup and your industry. Architecture and engineering firms often have deep experience working in the industries that relied on the beneficial properties that PFAS impart to fire-suppression aids and industrial processes. It is critical to understand where these contaminants have been used, how their regulation may change processes and where there is potential release of these contaminants into the environment.

Work With Your Insurance Adviser

Insurance advisers are paid to stay up to date on the leading issues in the industry and can inform owners of the trends in environmental insurance coverage and how policies can be used to manage PFAS risks. Your insurance adviser also knows your insurance situation and can help determine when an insurance claim is triggered by PFAS.

Include PFAS Risks in Acquisition Due Diligence

Phase I Environmental Site Assessments may miss PFAS altogether. PFAS chemicals are not yet hazardous substances and information about the use of PFAS is sparse. Chemical use records, including safety data sheets, may not present the full picture of PFAS use either. Likewise, historic waste profiles and manifests will not reveal much about residual PFAS in disposed materials. Owners should engage qualified professionals to help assess these hard-to-identify PFAS risks.

Inventory the Risks

Evaluate the current and historical practices of your organization with the potential to create PFAS impacts at owned or occupied sites. Properties located near a known PFAS source are prime candidates for PFAS impacts related to a third-party contributor. If you are located near known PFAS contributors, consider what sources are located up gradient or on neighboring properties that may impact your property. Learn about previous owners and historical uses of your properties. If you have evidence that a third party or former owner has potentially impacted your property, carefully consider the legal rights you might have to protect yourself against the responsible party and establish a strategy for cost recovery.

Also consider potential risks associated with the off-site occurrence of PFAS resulting from migration in groundwater, off-site use and disposal of PFAS-containing materials. This may include the application of PFAS-containing AFFF during mutual aid response calls, historic landfilling of PFAS-containing materials, treatment of PFAS-containing wastes at distant water treatment facilities or land application of PFAS-containing sludges or biosolids.

Consider Voluntarily Notification and Action

If you know that you own or occupy a site that is a PFAS contributor, carefully consider — with legal counsel — when you should voluntarily approach environmental regulators. A PFAS voluntary cleanup or exposure mitigation program can reduce exposures now, protecting your workers and the surrounding community. Taking voluntary action also could pose special risks that should be carefully considered.

Comply With Corporate Reporting Obligations

If you presently possess enough information to trigger reporting pursuant to corporate governance obligations, carefully consider the scope and detail you must report to achieve compliance. Some companies have recently increased their asset retirement obligation (ARO) estimates to include PFAS liabilities. Consider whether your ARO adequately accounts for the emerging PFAS issue.

Reporting obligations are likely to arise quickly after designation of PFAS as hazardous substances. Early preparation will keep you from getting caught off guard.

Do Not Exacerbate Conditions

If you are contemplating a development that would require excavation and on-site relocation or off-site disposal of soil, and you are in a location where PFAS impacts are known or suspected, carefully consider steps to mitigate liability from relocation or off-site disposal. If you have stockpiles of unused PFAS-containing materials, disposal may be challenging.

Similarly, the presence of PFAS in groundwater may prevent the discharge or relocation of dewatering fluids. Temporary treatment systems may be required as many publicly owned treatment works are not equipped to treat PFAS and are now scrutinizing PFAS-containing waste streams.

Disposal facilities have been dealing with PFAS in leachate for some time. Some disposal facilities have started requiring the identification of PFAS in waste profiles and have stopped accepting any PFAS-containing waste materials. Others are certain to follow.

Implement protective contract language now for your organization to regulate these emerging contaminants. Adopt a zero PFAS-containing material policy and work with sourcing departments to eliminate PFAS from your operation.

Stay Informed and Adaptable

Pay attention to the news and regulatory developments concerning PFAS. Adjust your strategy as knowledge evolves and regulatory situations change. Keep a close eye on the geographic locations known to be heavily affected by PFAS. Regulators move quickly to protect human health and the environment where PFAS issues dominate.

The right knowledge of emerging contaminants can help you evaluate your operations and make well-informed decisions, resulting in more favorable outcomes.