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LAW ELEVATED — PFAS, more than just another acronym

THIS ARTICLE ORIGINALLY APPEARED IN THE MISSISSIPPI BUSINESS JOURNAL. CLICK HERE TO VIEW THE ARTICLE IN ITS ENTIRETY.

So, what is PFAS? Simply put, PFAS (per and polyfluoronalkyl substances) is the term used for a family of approximately 5,000 individual man-made fluorinated chemical compounds that are used in our everyday lives. We have been using products containing older and newer versions of PFAS chemicals since the 1940s. 

PFAS make your eggs not stick to your skillet, your cheesy pizza not stick to the box, that spilled glass of wine not stain your carpet, and helps your jacket and shoes keep you dry when you get caught in the rain. PFAS are present in a host of other products, too – from popcorn bags and paints to cosmetics, shampoo, conditioners, hand creams, toothpaste and dental floss.

PFAS chemicals also have a history of wide industrial applications, including extinguishing petroleum-based fires that occur typically at airports, refineries, fire training areas and military installations; enhancing oil recovery by use of chemicals that lower tension between liquids and generate increased oil production; inhibiting evaporation during petroleum storage; and suppressing mist from electroplating operations. 

The widespread use of PFAS has given new meaning to the word “ubiquitous” – PFAS truly are everywhere. One of the reasons PFAS have become so heavily relied upon is their stability. These compounds have proven so stable that once they reach soil and groundwater regulators contend they remain there for years. The very purpose of the compounds – resiliency – makes PFAS chemically stable not only in products, but also in manufacturing waste streams and in the environment.

PFAS enter the environment in a variety of ways, as seen from these few examples of its use. PFAS remain stable through manufacturing processes and can enter the environment through wastewater treatment discharges, waste water sludges, industrial onsite disposal sites and commercial landfills, and especially landfills constructed and closed before 1990. That is when solid waste requirements for liners to protect groundwater were instituted. Other potential sources of PFAS are wet and dry atmospheric deposition and surface water runoff from PFAS-impacted land or runways and highways.

A growing firestorm of focus on PFAS is sweeping the country, creating a dual challenge for industry to keep up with federal and state regulatory developments and to evaluate potential litigation risks associated with using these chemicals in manufacturing processes and industrial applications. 

The science and toxicology surrounding PFAS is unsettled at best. While the EPA protects public drinking water supplies through the Safe Drinking Water Act (SDWA) by monitoring for more than 90 drinking water contaminants, that list has never included any of the PFAS compounds. However, in February of this year, the EPA set the “health advisory” drinking water level at 70 parts per trillion for two of the PFAS chemicals that have been voluntarily phased out of use: perflurooctanoic acid (PFOA) and perflurooctane sulfonate (PFOS). The EPA has stated that it will begin the administrative process for establishing a drinking water standard by the end of this year.

Some states are not waiting on the EPA and have acted on their own to establish PFAS state-specific drinking water standards. At last count, 14 states have adopted the EPA health advisory standard and six states have adopted a standard more stringent than the EPA. All of these fast moving and dynamic developments yield regulatory uncertainties and create divergent government approaches across the country.

PFAS are considered “emerging contaminants” – chemicals that may pose a potential human health or environmental risk but do not have regulatory standards. Industry has a solid record of working through other emerging contaminants in the past – PCBs, MTBE in gasoline, TCE and 1-4 dioxane, just to name a few. PFAS seem to pose more of a challenge, not only because of their resiliency in the environment, but also due to the breadth of consumer and industrial uses. Lessons learned in the past from other emerging contaminants will be useful and informative as industries tackle current PFAS regulatory uncertainties.

We are already beginning to see the EPA and some states attempt to take a second look at dormant Superfund/CERCLA sites specifically for PFAS. Industry should be prepared to respond to the EPA and state environmental agencies as we anticipate regulatory efforts to bootstrap PFAS inquiries to permitting and compliance activities by federal environmental programs such as the National Pollutant Discharge Elimination System, Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act and the SDWA.

Against this murky regulatory backdrop, we are also seeing a groundswell of civil litigation across the country. Types of litigation include claims by individuals and businesses for personal injury, property damage and remediation costs arising from PFAS found in soil and/or groundwater; claims by municipalities/counties/public utilities for costs of remediation and installation of water filtration devices; RCRA citizen suits alleging imminent and substantial endangerment; state claims for natural resource damages for groundwater/drinking water contamination and costs of investigation and remediation by mid-stream PFAS industrial users as a proactive strike against PFAS suppliers and manufacturers for increased regulatory and remediation costs.

Industry has good arguments and defenses against the race to judgment on PFAS. There currently exists no standard for PFAS under any federal program that has withstood the rigors of a public process. The science and toxicological studies remain unsettled. Adding to the uncertainty, standardized laboratory methods are only available for drinking water and not for soil.

The alarms are real, however, and are reverberating. Industry’s actions must be proactive, timely and deliberate. Being proactive includes understanding and identifying the existence of any regulatory and litigation risks squarely under the protection of attorney-client privilege. What chemicals are presently being used? What chemicals should be changed? What has been used in the past? What are the location and disposal practices for on-site and/or off-site landfills? Are contracts and indemnification agreements in place and sufficient? What did the company know and when did it know it?

The dynamic and unsettled world of PFAS requires a disciplined and thoughtful approach in maintaining attorney-client privilege throughout any assessment of risks associated with PFAS. As you can see, PFAS is not just another acronym. It will be with us for many years. Now is the time to evaluate all things PFAS in order to be ready for whatever the future brings.