You may not be on a first name basis withper and polyfluoroalkyl substances (PFAS), but these synthetic chemicals are pervasive in consumer, commercial and industrial products. First developed in the 1940s, there are thousandsof PFAS compounds found in hundreds of everyday products that most people presume are harmless, from stain- and water-resistant fabrics and carpet- ing, to packaging, cleaning products, and nonstick cookware. Initially praised for their unique ability to repel both oil and water, PFAS’ distinctive properties and ubiquity have led to an unprecedented set of challenges for scientists, regulators and businesses.
Commonly known as a “forever chemicals,” PFAS resist degradation and decomposition, making them permanent denizens of our environment. PFAS can accumulate in people, animals and the environment over time. While we are still learning about PFAS,
we know that they are hazardous to human and planetary health. People can be exposed to PFAS by touching, drinking, eating, or breathing materials that contain PFAS. They can enter the food supply through plants and animals and in very small amounts through packaging, processing, and cook- ware. Centers for Disease Control and Prevention (CDC) studies show that most people in the United States have been exposed to PFAS.
Additional research is required to answer critical questions such as how much PFAS is present in the environment, how PFAS move through the environ- ment and how frequently people come in contact with PFAS. Research is complicated by the chal- lenges of developing effective laboratory methods to find, identify and measure PFAS concentrations in the environment and determine the efficiency of various removal technologies. Scientists are grap-pling with how to destroy and safely dispose of PFAS compounds “removed” from the environment.
As scientific research on PFAS continues to develop, regulatory action is also increasing. A myriad of regulations that will affect business operations are currently on the books, with many more to come.
Challenges associated with PFAS are compound- ed by the fact that the litigation and regulatory landscape move at a different pace than the scientific community. It’s a thorny process from beginning to end for regulators and for business. There are also vast differences in the criteria being established by individual states, the U.S. government and international agencies.
In the business community, there should be much concern and preparation for evolving regulations on the use and disposal of PFAS compounds and PFAS-containing products that will affect end usersand suppliers directly or indirectly, during industrial production or from the use of products that contain PFAS compounds. These regulations will have critical implications for manufacturers of PFAS and PFAS-containing compounds, owners and operators of facilities or properties where PFAS was released or disposed, entities that have generated, transported, or arranged for the disposal of PFAS compounds, and wastewater and waste management facilities that treat PFAS contamination.
While it may seem daunting and costly to address these looming PFAS regulations now, PFAS has be- come an area of focus for federal and state agencies, as well as private party litigants who are Increasingly interested in companies who only have a remote or indirect nexus to the chemicals. Across-the-board regulation will become more stringent. Air emis- sions have yet to be regulated federally; but, as a
case in point, North Carolina recently submitted a petition to the Environmental Protection Agency (EPA) requesting the regulation of certain PFAS compounds under the Clean Air Act. If granted, EPA would be required to move forward with promulgat- ing emission limits for PFAS.
The financial and reputational risks and costs associated with PFAS-related lawsuits and enforcement actions are numerous. Working with legal counsel, business owners should review background historic records to determine if PFAS could have been released in past stormwater discharge, air emissions, or landfill deposits in anticipation of stricter regulations and corresponding litigation moving forward.
Parties aware of possible current or historic PFAS contamination should consider preemptively developing a strategy to mitigate the risk of future enforcement actions and litigation. Entities that may be using or remediating PFAS compounds should engage counsel and environmental profes- sionals to assess potential exposure and determine if PFAS discharges or emissions can be reduced or controlled cost-effectively. It is almost always less expensive to address a problem proactively rather than after the fact.
Smaller businesses should determine their reliance on PFAS. If PFAS are a key part of your process, what would you do if they were eliminated tomorrow? While many major corporations are proactively taking steps to create PFAS alternatives out of both business necessity and corporate citi- zenship, businesses of all sizes and municipalities that supply water, and the entire population will
be contending with this issue for decades to come. Amongst the uncertainty surrounding PFAS, one thing is certain. The best time to act to best protect your business is now.
Allison Gabala is senior counsel in the Environ- mental and Energy practice at Bond, Schoeneck & King’s Newark office. She can be reached at agabala@bsk.com or (646) 253-2363.
