PFAS

Per- and polyfluoroalkyl substances (PFAS) are a class of thousands of “emerging contaminants” used in various manufacturing operations, firefighting foam, food packaging, textiles, cosmetics and many other products. Often referred to as “emerging contaminants” – given recent developments (including the proliferation of articles in the popular press reporting on PFAS found in food packaging and bottled water), it would be unwise to assume they are anything but “emerged” contaminants.

PFAS are ubiquitous in the environment, are mobile, bioaccumulate and do not easily break down in the environment or human body - all of this has earned them the designation of “forever chemicals”. These human-made chemicals encompass ~4,000 different compounds, many around since the 1940s. PFAS are found in commonly encountered products, including non-stick coatings, waterproof fabrics, firefighting foams, car wash soaps/waxes, floor waxes, architectural resins, cosmetics and other consumer products. PFAS have earned the nickname “forever chemicals” because they are ubiquitous in the environment, are mobile, bioaccumulate and do not easily break down in the environment or human body.

The rapidly evolving federal and state PFAS regulatory landscape creates uncertainty for businesses across the country, particularly for those with operations in multiple jurisdictions with different regulatory overlays. As noted in our PFAS client alert, “PFAS: What’s All the PFUSS?”, all industries would benefit from proactive coordination with experienced legal and technical advisors to help prepare and manage PFAS risks associated with past, present and future operations.

If you have questions about how PFAS may affect you or your business, you may email our environmental lawyers at PFAS@goodwin.com.

Experience

Environmental

Advising Regional Airport Operator Regarding Potential Historical PFAS Contamination

As part of its obligations under a long-term lease and management agreement, we are advising an airport operator in connection with potential historical PFAS contamination from on-site firefighting training. Our advice includes evaluating current and future federal and state PFAS requirements, developing a strategic investigation/due diligence approach, evaluating potential remediation and mitigation/risk management options (including environmental insurance) and negotiating the allocation of responsibilities and liabilities among various parties.

Assisting a Multinational Specialty Chemicals Manufacturer Evaluate and Manage PFAS Risks Associated with Site Remediation and Wastewater Management

We are assisting a multinational specialty chemicals manufacturer assess and manage various PFAS risks, including on- and off-site soil and groundwater remediation, wastewater discharges/permitting, hazardous waste generation and transitioning the facility’s stationary and mobile fire suppression systems away from PFAS-containing aqueous film forming foam (AFFF).

Legal and Technical PFAS Risk Management Planning for a Multi-State Food and Beverage Company

We provide comprehensive assistance to a large, multi-state food and beverage client undertaking an extensive legal and technical PFAS risk management plan to address its potential operational risks, including up and down its supply chain. The project involves engaging and directing a national environmental consulting firm, coordinating technical and legal advice on the rapidly changing legal/regulatory federal and multi-state landscape, advising on technical, health and litigation developments and addressing all stages of the client’s operations from procurement, food production, transportation, packaging and distribution. Our ongoing support also includes advising on PFAS sampling strategies, supply chain contracts, insurance coverage (looking backward and forward) and stakeholder communications.

Ongoing Assistance to Food and Beverage Companies Regarding PFAS and Food Packaging Compliance

As state-level bans on intentionally added PFAS in food packaging continue to go into effect, we regularly assist food and beverage companies with multi-state and international footprints undertake highly nuanced legal and technical evaluations of PFAS risks associated with food packaging and compliance. This effort includes requesting certificates of compliance from upstream food packaging suppliers as well as evaluating and responding to similar demands from downstream distributors, wholesalers and retailers.

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Food and beverage

Assisted International Food Producer Prepare for the Sale of an Operating Facility, Including Counseling on Defensive Environmental Due Diligence and PFAS Risk Management

Assisted an international food producer prepare for the sale of a former manufacturing facility, including developing a PFAS sampling plan in response to a potential buyer’s overly broad environmental due diligence demands. We developed a strategic plan for compliance with the CT Transfer Act, designing sampling safeguards to deal with the potential for triggering Connecticut’s “Significant Environmental Hazard” reporting requirements related to PFAS and holding anonymous discussions with the CT Department of Energy and Environmental Protection regarding defensive sampling results and interpretation of “background” PFAS levels.

General

Assist Multi-Family Residential Developer Client in Connection with Agency-Requested PFAS Sampling

We represent a real estate development company in connection with the financing, environmental due diligence and remediation and redevelopment of various multi-family residential development projects in Connecticut and Massachusetts. Our representation includes negotiating the environmental provisions of the Purchase and Sale Agreements, advising on the application for a Flood Management Certificate, managing the design and implementation of dedicated environmental insurance coverage as well as navigating RCRA, state brownfield program and CT Transfer Act environmental investigation/remediation obligations. We also counsel the client in connection with its response to a multi-agency request to perform PFAS sampling in connection with the private and public financing of a development. We work closely with the client’s environmental consultant to prepare and implement an investigation and sampling plan and coordinate with the private/public lenders and DEEP to address PFAS concerns.

Assisting an International Manufacturer Evaluate its Potential PFAS Exposures and Liabilities on Currently and Formerly Owned/Operated Sites

We are assisting an international manufacturing client evaluate its potential PFAS risks and liabilities in connection with historical fire fighter training areas on currently and formerly owned/operated properties. Our support has included reviewing legacy contracts and insurance and developing a PFAS risk management plan to understand the potential liabilities, estimated costs and potential for cost recovery from the parties that released the PFAS-containing fire-fighting foam. We also assisted the client negotiate a bespoke 10-year pollution legal liability environmental insurance policy, which included sublimited coverage for third-party bodily injury and property damage PFAS-related claims.