Both Congress and United States Environmental Protection Agency (“USEPA”) are working to address what some call a “PFAS contamination crisis.” Enforcement actions and lawsuits have so far focused on the companies that have manufactured the two most widely used, and now most heavily regulated, PFAS compounds, PFOA and PFOS.
What are PFAS Chemicals?
Per- and polyfluoroalkyl substances (“PFAS”) are a family of over 5,000 man-made fluorinated chemicals that have been used since the 1940’s across a variety of industries as part of manufacturing processes, and as components of consumer products.
PFAS are defined by having elemental bonds of fluorine and carbon, rendering them extremely pervasive and persistent (which means that they do not break down easily either in the environment or after uptake in living organisms). PFAS chemicals can repel both water and oil and move quickly through water, and PFAS has been detected in surface water, groundwater, drinking water, soil, and consumer products. PFAS chemicals have also been detected in various living organisms, including human blood.
In Many Substances and Products:
According to the USEPA, PFAS are found in:
- “Food packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water.
- Commercial household products, including stain- and water-repellent fabrics, nonstick products (e.g., Teflon), polishes, waxes, paints, cleaning products, and fire-fighting foams (a major source of groundwater contamination at airports and military bases where firefighting training occurs).
- Workplace, including production facilities or industries (e.g., chrome plating, electronics manufacturing or oil recovery) that use PFAS.
- Drinking water, typically localized and associated with a specific facility (e.g., manufacturer, landfill, wastewater treatment plant, firefighter training facility).
- Living organisms, including fish, animals and humans, where PFAS have the ability to build up and persist over time.”[1]
Why Should I Care?
PFAS pose risks in a variety of different contexts, including the following:
- Environmental and Toxic Tort Liability: Litigation risks are associated with manufacturing PFAS or with non-workplace exposure to PFAS. Various companies have been sued in the context of contaminating water supplies, such as companies that produced materials containing PFAS. EPA currently has eight ongoing enforcement actions related to PFAS issues, and there are over a dozen active litigation matters, such as several cases by various states alleging drinking water contamination.
- Transactional Diligence: Until recently, there was little attention paid to PFAS contamination during transactional due diligence. Recent state and federal regulation have made it clear that these chemicals will be the subject of investigation and remedial actions in the future. Given the significant costs associated with remediating these chemicals because they do not break down naturally in the environment, companies should consider their potential presence during due diligence in both real estate and corporate transactions.
- Consumer Products: Manufacturing, purchasing, distributing or selling consumer products that contain PFAS may lead to product liability and toxic tort litigation, as well as resulting in discharges to air, soil, groundwater, and possibly drinking water from manufacturing operations.
- Cleanup Obligations: USEPA and states are evaluating PFAS contamination at legacy clean-up sites (such as landfills). The re-opening of these closed sites will lead to more liability for entities that were potentially responsible parties (“PRPs”) at those sites. While this is currently being achieved through state regulations, USEPA has announced plans to identify two PFAS chemicals, PFOA and PFOS, as hazardous substances under CERCLA. This could upend CERCLA settlements (which are typically tied to the contaminants previously identified), and lead to future PRP litigation.
- Permit Compliance: New regulations are expected to result in facility-specific discharge limits for both air and wastewater.
What Are The Current Regulations?
The regulation of PFAS chemicals is rapidly developing on both the state and the federal levels. In early 2019, the EPA released its PFAS Action Plan which proposed a systematic approach to developing regulations for certain PFAS chemicals in drinking water, soil, and groundwater. Several states are developing their own standards, creating a patchwork regulatory landscape.
Drinking Water Regulation:
In 2016, EPA revised its drinking water Health Advisory (“HA”) level for the combined concentration of PFOA and PFOS to 70 ppt. While not an enforceable drinking water standard, this HA level has essentially been used as a screening level for public drinking water supplies.
For a more detailed discussion of the state-by-state regulation of PFAS in drinking water please see our recent client alert: State-by-State regulation of PFAS in Drinking Water
Groundwater Regulation:
EPA has proposed two interim groundwater standards: (1) a screening level of 40 ppt for both PFOA and PFOS; and (2) a preliminary remediation goal of 70 ppt for both chemicals. For more information on these two proposed standards please see the following recent alert: EPA PFAS Action Plan: EPA's Proposed Interim Recommendation on Groundwater Cleanup Levels for PFOA and PFOS: What You Need to Know
For a more detailed discussion of the state-by-state regulation of PFAS in groundwater please review the alert below: State-by-State regulation of PFAS in Ground Water
Consumer Products:
To date, no agency has taken any regulatory steps to address PFAS in consumer products, other than encouraging the manufacturers of PFOA and PFOS to voluntarily phase out the production and use of those two chemicals.
Because PFAS chemicals have been detected in such a wide variety of these products, it should come as no surprise that the regulations of consumer products have taken many different forms. For an analysis of the different types of state consumer product regulations relating to PFAS, we encourage you to review the alert: State-by-State regulation of PFAS in Consumer Products
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