Yesterday, the EPA took two actions that move it much closer to issuing PFAS drinking water rules for two types of PFAS – PFOA and PFOS. We have predicted for some time that the U.S. could see PFAS drinking water regulations by the end of 2021, and that timetable seems very much on track with yesterday’s EPA action. Without question, businesses of all types must prepare now and assess the multitude of ways that their practices (whether intentional / knowing or not) are contributing to PFAS pollution in drinking water sources. Failing to do so could lead to significant fines, cleanup costs, and business interruption headaches.
What Are PFAS and Why Are They a Concern?
Per- and poly-fluoroalkyl substances (“PFAS”) are a class of over 7,000 manmade compounds. Chemists at 3M and Dupont developed the initial PFAS chemicals by accident in the 1930s when researching carbon-based chemical reactions. During one such experiment, an unusual coating remained in the testing chamber, which upon further testing was completely resistant to any methods designed to break apart the atoms within the chemical. The material also had the incredible ability to repel oil and water. Dupont later called this substance PFOA (perfluorooctanoic acid), the first PFAS ever invented. After World War II, Dupont commercialized PFOA into the revolutionary product that the company branded “Teflon.”
Only a short while later, 3M invented its own PFAS chemical – perfluorooctane sulfonate (PFOS), which they also commercialized and branded “Scotchgard.” Within a short period of time, various PFAS chemicals were used in hundreds of products – today, it numbers in the thousands.
The same physical characteristics that make PFAS useful in a plethora of commercial applications, though, also make them highly persistent and mobile in the environment and the human body – hence the nickname, “forever chemicals.” While the science is still developing regarding the extent of possible effects on human health, initial research has shown that PFOA and PFOS are capable of causing certain types of cancer, liver and kidney issues, immunological problems, and reproductive and developmental harm.
EPA’s PFAS Drinking Water Rules
The EPA announced yesterday two actions related to PFAS that are incredibly relevant to anyone following these issues. First, the EPA issued Final Regulatory Determinations for PFOA and PFOS, which is the final necessary step before the EPA can begin the process of implementing a national drinking water regulation for these two types of PFAS. The Final Regulatory Determination also notes that the EPA may consider other types of PFAS as it comes up with a drinking water regulation, provided that the available science supports inclusion of additional PFAS. While the EPA certainly must follow certain administrative steps to ensure that any final PFAS drinking water rules pass muster, it is not unrealistic to predict that these steps can be accomplished by the close of 2021.
In addition to the step forward with respect to drinking water, the EPA reissued a rule (the FIfth Unregulated Contaminant Monitoring Rule – UCMR 5) that requires water systems of a certain size to collect samples for 30 substances over a 12-month period. 29 of the substances are PFAS types. The EPA indicated that the UCMR 5 “would provide new data that is critically needed to improve EPA’s understanding of the frequency that 29 PFAS are found in the nation’s drinking water systems and at what levels.” The EPA will accept public comment on the proposed UCMR 5 for 60 days, following publication in the Federal Register. EPA will also hold a virtual stakeholder meeting twice during the public comment period.
What Will the Impact Be To Businesses?
Many companies assume that any regulation under the Safe Drinking Water Act will not impact them, as virtually no industries, aside from water utilities, have any direct impact on drinking water. However, this belief provides a false sense of security that must immediately be dispelled. There are three specific ways that drinking water limits for PFAS will trigger scrutiny on environmental practices of businesses: (1) effluent discharges into water sources; (2) waste sent to landfills that may leach into drinking water sources; and (3) properties abutting or in the vicinity of water sources.
Direct industry effluent discharges into water sources (which may not be drinking water sources, but may feed into drinking water sources) will be the low-hanging fruit target for local environmental agencies at the state level. Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS. Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water.
Waste management companies and businesses that send their industrial waste to landfills are also well advised to do a full compliance check. While many companies do not use PFAS directly in their own manufacturing processes, do the parts or other raw materials used in the manufacturing process have PFAS contamination issues? Are landfills doing due diligence to determine if they are accepting PFAS waste? A company could unknowingly send PFAS-laden industrial waste products to landfills, and so these are questions that companies must get answers to. Over time, it is possible that the PFAS may leach out of the landfill and find their way into local water sources. Environmental regulatory agencies will look to these sites, the owners of the sites, and potentially companies sending waste to the sites as responsible parties for PFAS contamination in waterways.
Finally, even businesses having nothing to do with PFAS or manufacturing from which PFAS could be a contaminant need to follow news regarding PFAS regulations. For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)? What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration? If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses.
Our prediction remains that in 2021, PFAS drinking water rules will be finalized at the federal level. This will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. 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.
Certain emerging issues materially affect the aggregated economic impact of PFAS, including but not limited to environmental insurance carriers’ ability to price the risk. Until more data are available, the risk to small/medium insureds is a policy exclusion for PFAS liability – perhaps forcing them into non-coverage (i.e., ‘self-insured’).
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