Pay Attention to PFAS

For decades, per- and polyfluoroalkyl substances (PFAS), a group of several thousand synthetic compounds, have been viewed as “wonder chemicals” and their unique properties made them valuable in a variety of applications - nonstick cookware, waterproof coatings and stain-resistant fabrics, for example. In industrial settings, PFAS have been incorporated into additives used in the manufacturing of semiconductors, electronics, chemicals and textiles. PFAS are also commonly found in firefighting foams such as those used at manufacturing facilities and petroleum refineries.

However, their resistance to degradation also allows PFAS to bioaccumulate in the environment and the human body. As the growing body of scientific research raises potential health concerns associated with PFAS, states across the country are taking action. Regulatory thresholds for various media (drinking water, soil and groundwater) are now consistently being established in the parts per trillion range (picture a drop in an Olympic-sized swimming pool).

The best strategy to determine whether PFAS are a concern for you and your business is to engage with legal and technical experts and develop a focused RMP that tracks the rapidly evolving PFAS regulatory landscape, evaluates risks and liabilities associated with past and current operations at or related to your facility(ies), and identifies potential impacts to your future business operations.

Until last year, the federal government had taken only limited action on PFAS, namely a 2016 Environmental Protection Agency (EPA) drinking water health advisory level for just two PFAS compounds. However, in 2019, federal action increased as the EPA released a non-binding “PFAS Action Plan” and issued interim guidance for contaminated groundwater. In 2020, the EPA is expected to revise the Emergency Planning and Community Right-to-Know Act to include 160 PFAS on the Toxic Release Inventory (TRI), as required by the 2020 National Defense Authorization Act. This is important for manufacturers, as the TRI requires facilities that use or produce any listed chemical above the reporting thresholds to immediately begin tracking releases of PFAS to the environment and report annually to the EPA. Looking ahead, Congress appears likely to recommend the designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonate (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (aka Superfund).

Some states are acting individually to address PFAS, setting their own limits, cleanup standards, safety measures and use restrictions. Of particular concern to Connecticut manufacturers, the Interagency PFAS Task Force and Governor Lamont released the PFAS Action Plan in November 2019. Among its many recommendations aimed at remediating prior PFAS releases and reducing future exposures were several that could affect manufacturers, including:

• Requiring exposure control strategies at workplaces using PFAS;
• Evaluating mandatory PFAS-use disclosures in public filings and on product labels; and
• Evaluating an “extended producer responsibility program” for PFAS-containing products where the manufacturer would be responsible for its products through their entire life cycle, including take-back and ultimate disposal.

Takeaway

The rapidly evolving federal and state PFAS regulatory landscape is creating 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 manufacturers would benefit from proactive coordination with experienced legal and technical advisors to help prepare a tailored RMP to appropriately identify and manage PFAS risks associated with past, present and future operations.