In a time when the Environmental Protection Agency’s general policy toward noncompliance has been one of restraint to account for the obstacles presented by COVID-19, the agency has nevertheless continued to move forward in an aggressive manner on regulation of Per- and Polyfluoroalkyl Substances (PFAS). With the Temporary Enforcement Discretion Policy set to expire on August 31, 2020, companies should be spending this time evaluating their current levels of compliance.
A Life Cycle Analysis, where a company holistically reviews the cradle-to-grace impacts of its materials and activities, can comprehensively reveals all potential areas of exposure to action, and when it comes to currently or soon-to-be regulated substances like PFAS, it is a perfect place for companies to start in assessing their risk of enforcement. But with so many factors involved in this analysis, it can be difficult to know where to start. Here are some helpful tips for locating your areas of greatest risk for PFAS in an effort to prioritize action.
Review Prior Agency Interactions
Companies who have already dealt with enforcement actions with either local, state, or federal environmental authorities should review the documentation resulting from those interactions to assess the possibility that the cases could be reopened on the premise of PFAS contamination or exposure. Where the testing of public water supplies reveals high levels of PFAS, regulatory agencies will be searching for Potentially Responsible Parties (PRPs), and it makes sense that the first place they would look is for prior instances of pollution or contamination in the surrounding area. For example, fires resulting in the release of oil that would have been reported would likely have been doused with PFAS-containing firefighting foam, a source of contaminants that was not evaluated at the time but is now of special importance to regulators, necessitating a review of the action taken previously.
Assess Your Surroundings
Companies located near sources of PFAS, or bodies of water where the substances are being deposited, should evaluate the industries and topographical features around it to assess the likelihood that they will be pulled into PFAS enforcement actions. Using a visual data mapping tool like Google Maps can show what businesses are located nearby. Manufacturing facilities, chemical testing sites, and other types of industrial use could involve PFAS, substances with physical properties like heat resistance and surface tension reduction that are useful in a whole host of applications.
A mapping tool would also help determine proximity to public water supplies. As public water supplies are one of the most prevalent test sites and drinking water is a primary source of human exposure, these data points are crucial. This data could be supplemented by reviewing state data on stormwater discharge to determine if your property ultimately discharges to any local water source.
Evaluate Intersection of PFAS with Current Compliance Requirements
It is crucial to stay on top of the state of PFAS regulation, as it is evolving rapidly. While public concern is focused on the pandemic, there are still bills pending in state and federal legislatures that would change the status of PFAS under a number of environmental laws. These changes will alter and extend companies’ existing compliance requirements, and with some advance research and analysis, your business can be prepared to adapt practices to account for these new requirements.
Regulation is always a process, and promulgation is now further delayed by COVID-19, but at least for PFAS, the process is moving forward. Litigation in all arenas, including PFAS, has stalled, but new cases continue to be filed. Enforcement continues on, but with the understanding that these are new and changing times and the best solutions to enforcement actions are reached cooperatively. Public concern is now justifiably focused elsewhere. And as all of these forces build, now is the best time to reflect and prepare from a compliance standpoint.
These suggestions are a good first step to strive for fewer compliance concerns down the road. Due to public pressure and uncertainty surrounding the environmental and public health effects, further PFAS regulation and enforcement is coming, and companies will have to adapt their practices to be in compliance with these regulations.
CMBG3 Law’s PFAS Litigation team, Environmental Compliance Group, and Government Relations department work together to track regulatory developments, analyze trends to determine how our clients are impacted, and preparing defenses for our clients. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.