Welcome to our podcast! My name is John Gardella, and I am a shareholder and founding partner at CMBG3 Law LLC. We are a medium-sized full-service law firm located in Boston, and we pride ourselves in delivering Gold Standard service to our clients, and adapting to whatever challenges we are presented with.
During these unprecedented times, CMBG3 has found a way to really come together even though we are apart. One thing we have discovered recently is the breadth of untapped expertise we are fortunate enough to have—from criminal prosecution to Superfund supervision, our attorneys, paralegals, and all other staff have so much to offer. We hope to use these podcasts to showcase some of this expertise.
We’re starting today with a conversation with Attorney Suzy Englot. Suzy is from Syracuse, New York and went to Pace Law School to study environmental law. Before she worked for our firm, she spent two years as an environmental safety and health consultant for a firm managing the ESH department of a Fortune-500 company. Through her work at CMBG3, she has found new ways to apply her compliance background to current and emerging environmental issues, most notably with her work on PFAS. Suzy, thanks for having this conversation today!
STE: Thanks for asking me to, John!
JPG: So let’s start with a very basic question: what are PFAS?
STE: That is a great place to start! PFAS is an acronym for Per- or Polyfluoroalkyl Substances. These are manmade substances, of which there are now thousands of varieties, that have incredibly useful properties, like water and heat resistance. However, those same properties make them very pervasive in both nature and the human body—we are still learning about exactly how long it takes for them to break down, and the impacts that has on public health and the environment.
JPG: PFAS is often in the news nowadays, and between the release of the star-studded movie Dark Waters and the Netflix movie The Devil We Know, there is a lot of information out there about PFAS that is ultimately leading the federal government to investigate, and state governments to enact regulations limiting the amount allowable in drinking water. How does this affect businesses right now?
STE: With PFAS regulations already being enacted in some states, and with more state and federal regulation on the way, companies placed anywhere along the life cycle of PFAS use need to start evaluating their own risk, and whether or not they will be able to quickly get into compliance with any regulations passed where they do business.
JPG: Okay, risk evaluation. Sounds simple enough, but for businesses that are manufacturers, or have a lot of supplies coming in and out, it may seem really difficult to start this process. Why is it important they start now?
STE: The reason is because the longer business wait to get ahead of this issue, the more likely it is that they will be subject to litigation! This is something that we see a lot of the time in our current work in toxic torts and asbestos litigation. Companies had a product that was—according to regulations—safe to use, but in hindsight the asbestos in the product is now the subject of endless litigation, where people who worked with asbestos and are now sick are looking for responsible parties.
So that’s one type of litigation companies could be subject to—personal injury and products liability. However, the more pressing concern and what would likely happen first is agency action relating to environmental contamination. If there is any evidence that PFAS could have been discharged from a company’s property, they could be found a Potentially Responsible Party in any nearby cleanup, they could be sued by local residents who believe their illnesses stem from that discharge, local municipalities could demand they pay to upgrade water treatment centers to filter out PFAS—there are a lot of possibilities, all of which can be avoided if companies start examining their PFAS risk now.
JPG: So, where can companies start?
STE: Companies need to prepare for all possibilities by doing a life cycle analysis of the materials and equipment entering, in use at, and leaving their facilities. Each step of the life cycle creates its own risk, so they must prepare for all possibilities. PFAS are very commonly used substances now in a lot of commercial products, so even where PFAS is not an ingredient or component of a product or service your company is offering, it is possible, if not likely, that something that you use in your work has PFAS in it. And once those items or materials are identified, companies need to track their life cycle throughout their facilities to make sure the substances are being used in low quantities, below existing regulations, ideally, and are not exiting the facility or property in a manner that could lead to allegations of harm.
JPG: Can you break that down a little more with specific examples?
STE: Absolutely! I can separate these into PI/Products Liability issues, and Environmental Contamination issues.
To avoid allegations of Environmental Contamination, it is first important that companies evaluate their waste removal process. They can do a regulation review to first make sure that they are in compliance with all state and federal, and any local, requirements pertaining to waste removal from the site, to make sure that no matter what is leaving, it is not accidentally entering the environment, either near the facility or near the waste treatment plant. To that end, it’s also important that companies evaluate the vendors they use for this work to make sure that they are in compliance. If the vendor makes a mistake or is skirting regulations, it is the company that will be held responsible still.
Companies need to also evaluate any discharges from the property their facility is on, whether that is water discharge or air discharge. Those will hopefully be easier to review, because those types of discharges would already be permitted (or should already be). Existing permits do NOT cover PFAS discharge as it is not yet regulated in most states, so where testing needs to be done to check levels exiting the facility, companies should make that investment now to prevent any issues down the road.
The last type of environmental contamination companies need to review is employee exposure to PFAS. This kind of leads into the personal injury issues, but if PFAS are used in the creation of products on site, or were applied to equipment that employees use at the facility, companies need to review those applications to see if the PFAS could be transferred to the employees in any way—through ingestion, contact, etc. The best way to protect your employees is to review your OSHA requirements and ensure that all are implemented regularly in the workplace, from correct use of Personal Protective Equipment, PPE, to adequate ventilation and waste disposal of substances. Even though PFAS, again, is not regulated in most states, existing OSHA requirements are applicable to many hazardous situations and help protect employees from harm every day, so applying them to PFAS is a great first step.
As far as products liability goes, companies should take the time to become educated on recommended best practices for PFAS, and seek out the most up to date scientific consensus on the substances. This kind of speaks to what I was saying earlier about asbestos litigation—oftentimes companies in that type of lawsuit are accused of not changing their practices, ahead of even regulation or best available technology, to account for the health impacts of asbestos that were still being learned about at the time a plaintiff was working with their products or equipment. I can see this sort of thing happening with PFAS.
JPG: You think that plaintiffs will say that due to the public concern around PFAS, companies should have already been changing their practices now, ahead of regulation?
STE: I think it could happen. And so why not get ahead of the curve? With the access to information that we have today, especially the access to studies by the National Institute of Health and other reputable sources, it is much easier for today’s businesses to get caught up on scientific consensus than it was for companies in the 1960s and 1970s, when asbestos was still being used. They didn’t even have computers without internet.
JPG: Wow. Is there anything else companies should do to get ahead of PI/products liability litigation?
STE: Well, if a company uses PFAS a lot, and it is a possibility for them, they could do research into any alternative substitutes for PFAS in their products or processes, and evaluate replacing them.
JPG: So you say “evaluate” replacing them. Why not definitely replace them, if an alternative exists?
STE: Well first of all, it’s not clear that an alternative DOES exist. The older types of PFAS that were first invented in the mid-1900s, referred to as “long-chain” PFAS, are kind of being replaced with newer types called “short-chain” PFAS, as well as “Gen X” PFAS, but the applications of the substances are so specific that it may be the case that no alternative exists right now.
And even if one does, not all companies can just substitute in a new substance—it depends what type of contracts you have. For example, military contracts are hyper-specific about the products that are allowed to be used to create certain equipment and components, because the stakes are so high if the products fail. So in that situation, companies would have to just adhere to the requirements of the contract. But in other situations, where a company is in more control of its output, it could consider replacing PFAS if it thinks the risk is high enough.
JPG: Good to know! Before we go, are there any other steps companies should be taking in your view to improve their environmental safety and health practices, and protect themselves from liability?
STE: Absolutely! I would think this goes without saying, but I’m going to say it anyway—companies should have a comprehensive compliance system! They should have a continually updated database or document, created by analyzing all laws, regulations, and other legal writings applicable to the work they do, that tracks their legal requirements. They should create Environmental Health and Safety procedures for implementing those requirements in daily practice. They should regularly train their employees and vendors on these procedures. They should track their permitting and other regulatory deadlines in a calendar so they don’t miss any filings. And they should continually self-audit these systems to find issues. These are things that many companies are already doing, but I would bet some, even some big ones, are not.
And this task can be daunting, it can take a long time and you may not have anyone on staff who can oversee the whole process. Well, we can help you with that! Attorneys and other legal professionals are the perfect people to create these compliance systems, because we have learned how to read these often convoluted and confusing regulations, and have such a good understanding of what can lead to liability down the road. I know that most people think attorneys go to court, but honestly, if I’m doing my job right, you’re never seeing the inside of a courtroom! That’s my ultimate goal.
JPG: I think that’s a goal we should all work towards! Thank you for having this conversation with me, Suzy! I hope that our listeners have learned a lot about compliance, and about what steps to take to address PFAS risk.
STE: Thank you again for having me! I’m always available to address compliance concerns, whether PFAS or otherwise.