By Jon Lycett
There has been quite a flurry of regulatory activity lately surrounding per- and poly-fluoroalkyl substances or “PFAS.” That’s quite a mouthful, but it’s only the beginning: PFAS is a catch-all term for well over 3,000 related chemicals. These chemicals are ubiquitous in the environment and there is increasing concern about their impact on human health. USEPA is so concerned that it announced a “PFAS Action Plan,” detailing the actions it is going to take to protect public health from these substances. Then, on March 6, 2019, the California State Water Resources Control Board (“SWRCB”) announced a uniquely proactive sampling program aimed at getting a start on defining the scope of the PFAS contamination problem in California.
What’s causing the regulatory hand-wringing is the extremely low concentrations that are being proposed as action levels for these chemicals. For example, the SWRCB set “Notification Levels” for detections in drinking water of perfluorooctane sulfonate (“PFOS”) and perfluorooctanoic acid (“PFOA”), two of the most common PFAS chemicals, at 13 parts per trillion (“ppt”) and 14 ppt, respectively, with an associated response level for both at 70 ppt. Notification levels for most contaminants are measured in parts per billion at the lowest. These levels don’t have much teeth, yet, but USEPA and its state cousins are busy rulemaking on these chemicals, as the recent announcements make clear. For example, one task on USEPA’s “Action Plan” was to place PFOS and PFOA on CERCLA’s list of “hazardous substances.” Thus, the regulations are coming soon and, if cleanup levels are eventually set in the parts per trillion, cleanups are likely to be enormously expensive.
So what are PFASs, why should you care, and what are you supposed to do about it? What follows is a quick summary. The information about PFAS chemicals and their health risks can be found in much more detailed form on the USEPA website, the CalEPA website, and other webpages that are referenced there. Suggestions for a response are my own.
What are PFASs?
PFASs are carbon chains with fluorine atoms bonded where you might otherwise find hydrogen. The carbon-fluorine bond is extremely strong and stable, making these chemicals water-resistant, oil-resistant, stain-resistant and heat-resistant. Consequently, they are used where heat-resistant, stain-resistant, or non-stick qualities are desirable – essentially everywhere. They are in fabrics (clothing and upholstery), carpets, packaging (especially food packaging), cookware, electronics and the manufacturing processes associated with them. They are frequently used in fire-retardant foams, especially at airports and military bases. Their usefulness has made them virtually ubiquitous in both the human environment and, unfortunately, the natural environment.
What are the health risks?
Because there are such an enormous number of different versions of these chemicals, the specific health impacts of any one of them probably has not been studied. It is generally thought that longer carbon chains are more dangerous than shorter chains. This is because the longer chains appear to have a stronger tendency to bioaccumulate, making them potentially dangerous at lower levels of exposure. PFOA and PFOS, the most thoroughly studied, have been found to have various negative health impacts, including cancers and impacts on developing fetuses. California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has listed both chemicals as “known to the state to cause reproductive toxicity” under Prop. 65.
Stunningly, because of their ubiquity in the environment, virtually every person tested has been found to have some level of PFOA and/or PFOS in their blood serum. Working with the manufacturers, EPA managed to partially phase-out these two specific chemicals by 2015. Accordingly, their presence in the environment and in humans and animals appears to be slowly declining. Nonetheless, because of their strong resistance to natural degradation, PFOA and PFOS are still being detected in drinking water systems all over the country, including California.
Because they are thought to be safer, the switch to shorter chain PFAS is already in full-swing. “GenX,” for example, refers to a manufacturing method for PFAS and their polymers, which was generally designed to replace PFOA in the manufacturing process. EPA is currently studying the toxicity of 75 PFAS chemicals, including those associated with the GenX process, in an effort to cover the different classes of this huge array of chemicals. Generally, the shorter chain PFASs are proving to be somewhat less toxic, but safe exposure levels are still being proposed in the parts per trillion. And some have suggested that the smaller chain chemicals may be more mobile in the environment, causing them to spread more easily.
What am I supposed to do about it?
How you respond to PFASs depends on where you are likely to encounter them. Wherever you find them, you may want to consider your response carefully because the potential long-tail liability on these chemicals could be devastating. Here are some suggestions:
Many manufacturers include PFASs in their manufacturing processes or incorporate them into their products.
- Consider eliminating or reducing PFAS or finding alternatives;
- For Prop. 65 and other liability purposes, consider analyzing the extent to which end users may be exposed to PFAS through normal product use.
- Consider analyzing the manufacturing process and the product’s life cycle to determine places where PFASs may find their way into the environment.
- Chemical and product manufacturers may also want to actively participate in the regulatory process currently underway at USEPA and in many states.
Commercial and Industrial Property Owners
Commercial and industrial property owners may not even be aware of the extent to which PFAS chemicals are in use on their properties.
- Consider an effort to identify the extent to which PFAS chemicals are being used by your tenants. Industries and commercial operations, such as food packaging and carpet companies, that have not traditionally been considered likely to cause problems with hazardous substances may come under increased scrutiny as more of the PFAS chemicals become subject to regulation.
- Consider reviewing your lease agreements to ensure that you are indemnified even if the chemical in use is not currently listed as a “hazardous substance” or otherwise subject to any cleanup requirements.
- Consider talking to an environmental insurance broker about whether there is an insurance product that can provide some protection, including environmental indemnity insurance.
- Consider reviewing your document retention policies to make sure you maintain insurance policies, lease agreements, and appropriate documents related to hazardous substance use on your property.
Commercial and Industrial Real Estate Buyers/Sellers
PFAS risks create a whole new set of red flags for the due diligence process.
- The due diligence process should thoroughly evaluate any potential risk from PFAS contamination.
- Phase I reports should identify the proximity of airports and military bases.
- The use of fire-retardant foams is currently one of the most common sources of PFAS groundwater contamination, so Phase I reports should look for nearby fire events.
- Sellers in particular may want to consult legal counsel before committing to a Phase II based on PFAS risk, in order to get the latest on the regulatory status of PFAS chemicals.
While already an environmental catastrophe, PFASs are a slow-moving problem from a regulatory perspective. As of now, for example, no PFAS chemicals are listed as hazardous substances under CERCLA. Minimum contaminant levels have not been set for groundwater contaminated with PFAS. Only a handful of lawsuits and enforcement actions are making their way through the courts, primarily associated with chemical manufacturers. As USEPA and CalEPA take action, however, PFAS chemicals could present a substantial environmental challenge for a wide range of businesses and property owners. While the regulatory environment develops, now is the time to take action to protect yourself and your business.