PFAS Liabilities: Forever Chemical Stands Trial
November 18, 2020
AARON GETCHELL, CPG, PG
Litigation against big-name chemical manufacturing companies is taking center stage as the United States Environmental Protection Agency (EPA) integrates the disposal and reporting of PFAS, or per- and polyfluoroalkyl substances, into its regulatory framework. Environmental practitioners must be mindful to classify the chemical properly when performing due diligence, as Phase I Environmental Site Assessments can be used in court.
Arguably the most widespread emerging contaminant, PFAS are a group of synthetic chemicals that include perfluorooctane sulfonate (PFOS) and perfluotooctanoic acid (PFOA). Dubbed “forever chemicals” because of their stability and resistance to break-down in the environment, PFAS have been used by industrial and manufacturing companies to produce goods such as textiles, packaging, coatings, plastics, and fire suppressants since the 1940s. Previously undetected due to the absence of sampling requirements, today PFAS are found in our air, soil, and water supplies worldwide. The impact on human health is linked to liver and kidney damage, thyroid disease, and certain types of cancer.
The EPA’s guidance for environmental due diligence protects commercial property buyers against monetary and legal liabilities. As such, environmental attorneys, scientists, engineers, regulators, activist groups, and chemical manufacturers are paying close attention. If identified at a site, are PFAS a Recognized Environmental Condition (REC)? With no defined standards, at what level would the presence of PFAS be considered a REC? Are PFAS a REC if identified regionally? If PFAS are as widespread and pervasive in our environment as it appears, will they stand as a REC in perpetuity?
Rule Evaluation, Development, and Interpretation
Although the EPA has not developed a Maximum Contaminant Level (MCL) for PFAS through the Safe Drinking Water Act, it has added the regulatory framework for PFAS tracking and reporting in the Toxic Substances Control Act. It also added PFAS to the Clean Air Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The EPA has yet to adopt PFAS as “hazardous chemicals,” a designation necessary for its identification as a REC, in accordance with American Society for Testing Materials International (ASTM).
The EPA has issued a groundwater screening level recommendation of 40 nanograms per Liter (ng/L), a preliminary remediation goal for groundwater of 70 ng/L, and a drinking water recommendation where groundwater is the source of 70 ng/L.
Some conservative environmental practitioners may rely on other federal, state, and local environmental laws to classify PFAS as a REC. For example, Florida’s Department of Environmental Protection (FDEP) issued provisional PFOA and PFOS cleanup target levels for soil, groundwater, irrigation water, and surface water. FDEP’s interim groundwater cleanup target level for PFAS is 70 ng/L with a twenty-two congener analyte list. In addition to Florida, nine other states have issued drinking water guidelines for PFAS in groundwater that range from 8-70 ng/L. Within this complex regulatory framework, PFAS are a chemical not officially adopted by the EPA as a hazardous substance and have no MCL. Not every state has developed provisional screening levels. Additionally, there is no recognized standard for laboratory testing, congener lists vary, and the laboratory analysis is expensive.
Litigation Against PFAS Manufacturers
The scope of ongoing litigation against chemical manufacturing companies is growing. Properly identifying the rationale for classifying PFAS as a REC during environmental due diligence for commercial property transactions is critical. This includes site-specific or regional testing that identifies PFAS above a state or EPA provisional screening level recommendation, and the availability of such information in a public database.
If PFAS contamination is suspected, or if no sampling data is available, then PFAS would be listed as a non-REC finding. While this is a conservative opinion, it could help avoid future litigation involving buyers and the environmental due diligence provider. However, naming PFAS as a REC, or even describing PFAS as a finding, must be consistent with the buyer’s risk tolerances, corporate culture, and proposed land use of the property.
An outside partner can be a significant asset—especially in the absence of established regulations, and the long-term impact on human health and the environment evolves.